Televis Interactive(c) License Agreement

IMPORTANT, READ CAREFULLY. THIS ELIWELL & CONTROLLI LICENSE AGREEMENT (THE "AGREEMENT") IS A BINDING CONTRACT BETWEEN YOU, THE END-USER (THE "LICENSEE") AND ELIWELL & CONTROLLI AND ALL SUBSEQUENT OPERATING DIVISIONS ("ELIWELL & CONTROLLI" OR THE "LICENSOR"). EXCEPT TO THE EXTENT YOU ARE BOUND BY A WRITTEN AGREEMENT SIGNED BY BOTH YOU AND ELIWELL & CONTROLLI REGARDING THE USE AND LICENSE OF THIS SOFTWARE PRODUCT, BY INSTALLING OR USING THIS SOFTWARE PRODUCT, YOU, THE LICENSEE, ARE AGREEING TO BE BOUND BY THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT, WHICH INCLUDES, BUT IS NOT LIMITED TO, THE SOFTWARE USAGE LICENSE, THE DISCLAIMER OF WARRANTY AND LIMITED WARRANTY, AND LIMITATION OF ELIWELL & CONTROLLI'S LIABILITY.  

READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE.  IF YOU DO NOT AGREE TO THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT, PROMPTLY DELETE THE LICENSE FILES AND SOFTWARE FROM YOUR COMPUTER AND RETURN THE LICENSE FILE DISKETTE(S), THE ENTIRE DISK PACKAGE AND ALL OTHER ITEMS (INCLUDING DOCUMENTATION AND PACKAGING) WITHIN 3O DAYS OF PURCHASE TO THE PLACE FROM WHICH YOU OBTAINED IT FOR A FULL REFUND. 

1.0	Definitions.  

1.1	Software.  Software means the computer software programs for which Licensee is granted a license hereunder, the License Files necessary to enable those programs, the Documentation therefor and, to the extent Licensee either purchases an Update or is entitled to receive Updates in connection with certain Technical Support Services purchased pursuant to Section 3.2, Updates thereto.  All computer programs are licensed hereunder in object code (machine-readable) form only; except that certain "toolkit" software programs may include limited portions in source code (human-readable) form. 

1.2	Client Software. Client Software means those components of, or programs in, the Software that allow a Workstation to run, access or utilize the services provided by the Server Software. A Workstation running Client Software or accessing or utilizing Server Software is called a Client.

1.3	Documentation.  Documentation means the user guides and manuals for the installation and use of the Software, whether provided in CD-ROM, hard copy or other form.

1.4	Update.  Update means: (a) supplemental programs, if and when developed and distributed by Invensys Controls Italy, that may contain bug fixes or improved program functions for the Software; and (b) a subsequent release of the Software, if and when developed by Invensys Controls Italy, which Invensys Controls Italy generally makes available for licensees that have Technical Support Services Policy by virtue of having purchased such services pursuant to Section 3.2.  An Update does not include any release, new version, option or future product, which Invensys Controls Italy licenses separately.

1.5	Technical Support Services.  Technical Support Services means:  (i) Basic Support Services provided to Licensee pursuant to Invensys Controls Italy's Technical Support Services Policies, Terms and Conditions ("Technical Support Services Policy") in effect on the date the Software is delivered to Licensee; (iv) Training Services provided pursuant to Invensys Controls Italy' Training policies in effect on the date such services are ordered by or for Licensee.

1.6	Workstation.  Workstation means any computer or other digital, electronic or computing device that runs, accesses or utilizes the Software. 

1.7	Designated Workstation.  Designated Workstation means the single Workstation owned, leased or otherwise controlled by Licensee at a single location identified on the License File or Order Form on which the Software is to be installed or run.

1.8	Order Form.  Order Form means (i) the document in hard or electronic copy by which particular Software or Technical Support Services is ordered by or for Licensee and by which Invensys Controls Italy is advised of the location of the Designated Workstation and (ii)  any order confirmation that may be issued by Invensys Controls Italy acknowledging receipt of, or accepting, an order by Licensee for particular Software or Technical Support Services.

1.9	License File.  License File means a component of the Software that enables one or more other components of the Software and may also specify the location of the Designated Workstation and the Licensee.  The License File also specifies certain limitations on the use of the enabled components of the Software and the purposes for, and extent to, which the enabled components of the Software may be used.  Certain components of the Software may be licensed hereunder without a License File.  For reference purposes, the components of the Software enabled by a particular License File correlate to Invensys Controls Italy part numbers as may be reflected on the License File or on one or more Order Forms.

1.10	License Fee.  License Fee means the fee paid to Invensys Controls Italy for each specific license to use the Software granted hereunder as may be identified in an Order Form received and accepted by Invensys Controls Italy.

2.0	Software License. 

2.1	Grant of License and Limitations.  In consideration of the License Fee and subject to the terms, conditions and limitations set forth in this Agreement and the limitations set forth in the License File and any Order Form, Invensys Controls Italy grants to Licensee a royalty free license to use a single instance of the components of the Software specified in the License File and /or the Order Form for which the License Fee has been EWTD600LS has been purchased solely for Licensee's business operations on Licensee Designated Workstation Licensee shall maintain a list of all Workstations using the Televis Interactive Software.  The Software is licensed to Licensee, not sold.

	2.1.1	Installation Limitations.  The media upon which the Software resides may contain multiple copies of some of the components of the Software, each of which is compatible with different microprocessor architectures or different underlying operating systems.  Licensee may install the Software for use only with one architecture and one operating system at any given time, consistent with the restrictions in the License File or Order Form.

2.2	Ownership.  Licensee owns the magnetic or other physical media upon which the Software is originally or subsequently recorded or fixed, but Invensys Controls Italy or Invensys Controls Italy's Licensors retains all title, copyright and other proprietary rights in, and ownership of, the Software regardless of the media upon which the original or any copy may be recorded or fixed.  Licensee does not acquire any rights, express or implied, other than those expressly granted in this Agreement.

2.3	Copy Restrictions.  Copyright laws and international treaties protect the Software, including the Documentation.  Unauthorized copying of the Software, the Documentation or any part thereof, is expressly prohibited.  Subject to these restrictions, Licensee may make one (1) copy of the Software solely for backup or archival purposes, and may make a limited number of copies of the Documentation for use by Licensee in connection with its authorized use of the Software.  Licensee shall number and account for all such copies.  All titles, trademarks, and copyright and restricted rights notices shall be reproduced in such copies.

2.4	Use Restrictions.  Licensee may transfer the Software from one Designated Workstation to another for operation of the Software provided that:  Licensee shall not, nor shall Licensee suffer or permit others to, modify, adapt, translate, reverse engineer, decompile or disassemble the Software or any component thereof (including the Documentation), or create derivative works based on the Software (including the Documentation), except to the extent such forgoing restriction is prohibited by applicable law.   

2.5	Transfer and Assignment Restrictions.  Licensee may not transfer, sublicense, rent, lease, sell, loan or assign the Software or any part thereof, or any of its rights or duties under this Agreement, to any other person or entity without the prior written consent of Invensys Controls Italy.  

2.6	Verification.  At Invensys Controls Italy written request, not more frequently than annually, Licensee shall furnish Invensys Controls Italy with a signed certification verifying that the Software is being used in accordance with the provisions of this Agreement.  Invensys Controls Italy may audit Licensee's use of the Software.  Any such audit shall be conducted during regular business hours at Licensee's facilities and shall not unreasonably interfere with Licensee's business activities.  If an audit reveals that Licensee is using Software contrary to the terms and limitations of this License Agreement then Licensee shall be invoiced for additional license fees consistent with Licensee's actual use of the Software in accordance with Invensys Controls Italy then current price list for the Software, which amount shall be immediately due and payable.  This assessment of additional fees shall be without prejudice to any other remedies Invensys Controls Italy may have for breach of this Agreement, including without limitation termination under Section 4.3.

2.7	Version Limitations.  The Software, and various components thereof, contain certain version numbers (such as version "6.5").  This Agreement permits Licensee to install one copy of the Software with the same (or a lower) version number as the Software version number listed on the License File or Order Form (or in an Update that is part of the Software hereunder licensed) on the number of computers authorized hereunder (for example, if the version number listed for a particular component of the Software is "6.5", then Licensee may install a copy of that component of the Software having a "6.5" or "6.0" version number, but not a "6.6" version number).

3.0	Technical Support Services.

3.1	Basic Support Services.  Basic Support Services will be provided to Licensee subject to the provisions and limitations in this Agreement and Invensys Controls Italy Policies in effect on the date the Software is delivered to Licensee.

4.0	Term and Termination.

4.1	Term.  The license granted hereunder shall continue perpetually unless terminated by Licensee or Invensys Controls Italy under this Article 4.0.  

4.2	Termination by Licensee.  Licensee may terminate the license granted hereunder at any time upon delivery of written notice to Invensys Controls Italy.  Termination shall not relieve Licensee of its obligations specified in Section 4.4 below. 

4.3	Termination by Invensys Controls Italy. This Agreement and the license granted hereunder automatically terminates if Licensee breaches any provision of this Agreement. 

4.4	Effect of Termination.  Immediately upon termination of this Agreement or the license granted hereunder, Licensee shall cease using the Software, shall delete the Software, including the License File(s), from its computer and shall either return to Invensys Controls Italy or destroy the Software, including the License File(s), Documentation, packaging and all copies thereof.  If Licensee elects to destroy the Software then Licensee shall certify in writing to Invensys Controls Italy the destruction of the Software.  Termination of this Agreement and return or destruction of the Software shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Licensee's obligation to pay all fees and expenses that have accrued or are otherwise owed by Licensee under this Agreement or any Order Form received and accepted by Invensys Controls Italy.  The parties' rights and obligations under the following sections of this Agreement shall survive termination of this Agreement:  Article 1.0, Section 2.2, Section 2.3, the last sentence of Section 2.4, Section 2.5, Section 2.6, this Article 4.0, Article 5.0 and Article 6.0.

5.0	Indemnity, Warranties and Remedies

5.1	Infringement Indemnity.  Subject to the limitations in Article 6 of this Agreement, Invensys Controls Italy will defend and indemnify Licensee against a third party claim (an "Indemnified Claim") that the Software infringes any copyright enforceable in any Included Jurisdiction or misappropriates any trade secret (as the terms "misappropriation" and "trade secret" are defined in the Uniform Trade Secrets Act) protected under the laws of any of the United States, provided that: (i) Licensee notifies Invensys Controls Italy in writing within 30 days of the claim; (ii) Invensys Controls Italy has sole control of the defense and all related settlement negotiations; and (iii) Licensee provides Invensys Controls Italy with the assistance, information and authority necessary to perform Invensys Controls Italy's obligations under this Section.  For any intellectual property claim for which a defense is not provided in this Section 5.1, Invensys Controls Italy, in its sole discretion, may elect to treat such intellectual property claim as an Indemnified Claim as defined in this Section 5.1.  Invensys Controls Italy shall have no liability for any claim of infringement based on use of a superseded or altered release of Software if the infringement would have been avoided by the use of a current unaltered release of the Software which was obtainable by Licensee from Invensys Controls Italy.  
Invensys Controls Italy shall have no obligation to any Licensee for any Indemnified Claims relating to allegations of copyright infringement which arise outside the geographical boundaries of the United States, Canada, Japan, or the European Union ("Included Jurisdictions"), or any Indemnified Claims relating to allegations of trade secret misappropriation which arise outside the geographical boundaries of the United States.
If the Software is held, or is believed by Invensys Controls Italy, to infringe, then Invensys Controls Italy shall have the option, at its expense, to:  (I) modify the Software to be noninfringing; or (ii) obtain for Licensee a license to continue using the Software.  If, in Invensys Controls Italy's sole discretion, it is not economically or commercially reasonable to perform either of the above options then Invensys Controls Italy may terminate the license for the infringing Software and refund to Licensee the License Fee paid to Invensys Controls Italy for the infringing Software.  This Section 5.1 states Invensys Controls Italy's entire liability and Licensee's sole and exclusive remedy for infringement.

5.2	Limited Warranties and Disclaimers.
	5.2.1	Limited Software Warranty. Invensys Controls Italy warrants for a period of ninety (90) days following delivery of the Software that the Software will perform substantially in accordance with the Documentation.
	5.2.2	Limited Media Warranty.  Invensys Controls Italy warrants for a period of ninety (90) days following delivery of the Software that the CD-ROMs, diskettes or other media upon which the Software is delivered are free from defects in materials and workmanship under normal use. 
	5.2.3	Limited Technical Support Services Warranty.  Invensys Controls Italy warrants for a period of ninety (90) days following performance of the service that its Technical Support Services will be performed consistent with generally accepted industry standards.  
	5.2.4	Disclaimer of All Other Warranties.  THE WARRANTIES ABOVE IN THIS SECTION 5.2 ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ELIWELL & CONTROLLI, ITS DEALERS, DISTRIBUTORS OR AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES GIVEN IN THIS SECTION, AND LICENSEE MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.  
		Invensys Controls Italy does not warrant that the Software will meet Licensee's requirements, that the Software will operate in combinations other than as specified in the Documentation, that the operation of the Software will be uninterrupted or error-free or that Software errors will be corrected.  Preproduction releases (including Alpha and Beta site releases) of Software and Technical Support Services related thereto are distributed "AS IS".

5.3	Exclusive Remedies.  For any breach of the warranties contained in Section 5.2, Licensee's exclusive remedy, and Invensys Controls Italy's entire liability, shall be:
	5.3.1	For Software.  Invensys Controls Italy shall use commercially reasonable efforts to provide maintenance modifications or fixes with respect to any such material defect (i.e. any defect covered by subsection 5.2.1) in a reasonably timely manner.  If Invensys Controls Italy is unable to make the Software operate as warranted, then Licensee may, within thirty (90) days after Invensys Controls Italy failure to cure or fix the defect, elect to terminate the license granted hereunder and recover the License Fee paid to Invensys Controls Italy with respect to the defective Software.
	5.3.2	For Media.  The replacement of the defective media returned within ninety (90) days of delivery of the Software.
	5.3.3	For Services.  The reperformance of the services, or if Invensys Controls Italy is unable to perform the services as warranted, Licensee shall be entitled to recover the fees paid to Invensys Controls Italy for the unsatisfactory service.

6.0	General Provisions.

6.1	Update Policy.  Invensys Controls Italy may from time to time, but has no obligation to, create Updates of the Software or components thereof.  Subject to the Technical Support Services Policy in effect at the time Licensee orders Technical Support Services, Invensys Controls Italy will make such Updates available and will be subject to the rate structure in place at the time of release.

6.2	Liability Limitation.  NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, EXCEPT FOR LICENSEE'S VIOLATION OF ARTICLE 2 OR SECTION 6.12 HEREOF, IN NO EVENT SHALL EITHER PARTY, NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE, INCLUDING ELIWELL & CONTROLLI LICENSORS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  ELIWELL & CONTROLLI LIABILITY FOR DAMAGES AND EXPENSES HEREUNDER OR RELATING HERETO (WHETHER IN AN ACTION IN CONTRACT OR TORT) SHALL IN NO EVENT EXCEED THE AMOUNT OF LICENSE FEES PAID TO ELIWELL & CONTROLLI WITH RESPECT TO THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM LICENSEE'S USE OF PARTICULAR LICENSE FILES OR TECHNICAL SUPPORT SERVICES THEN SUCH LIABILITY SHALL BE LIMITED TO LICENSE FEES PAID TO ELIWELL & CONTROLLI FOR THE RELEVANT SOFTWARE OR SERVICES GIVING RISE TO THE LIABILITY.  BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, PORTIONS OF THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN ELIWELL & CONTROLLI AND LICENSEE.  ELIWELL & CONTROLLI'S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

6.3	Governing Law.  This Agreement shall be interpreted and enforced in accordance with the laws of the State of Ohio, USA, without regard to choice of law principles.

6.4	Jurisdiction and Arbitration.  All disputes, claims or controversies arising out of or relating to this Agreement that are not resolved by the parties' good faith attempt to negotiate a resolution shall be submitted to final and binding arbitration before JAMS/Endispute, or its successor, in Columbus, Ohio, USA, pursuant to the United States Arbitration Act, 9 U.S.C. Sec. 1 et seq.  The arbitration will be conducted in accordance with the provisions of JAMS/Endispute's Streamlined Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration.  The parties will cooperate with JAMS/Endispute and each other in selecting a single arbitrator who shall be a former judge or justice with substantial experiences in resolving business disputes with particular experience in resolving disputes involving computer software.  The costs of arbitration will be shared equally by the parties.  The provisions of this Section may be enforced by any court of competent jurisdiction.  The arbitrator shall not be empowered to award damages in excess of, or inconsistent with, the liability limitations contained in this Agreement; however, the prevailing party shall be entitled to an award of all costs, fees and expenses, including expert witness fees and attorneys fees, to be paid by the party against whom enforcement is ordered.

6.5	Notices.  All notices required to be sent hereunder shall be in writing and shall be deemed to have been given when mailed by first class mail to the address shown on the relevant Order Form (if to Licensee) or to the Invensys Controls Italy address shown on the relevant Order Form (if to Invensys Controls Italy).

6.6	Severability.  If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.

6.7	Waiver.  The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.  Except for actions for nonpayment or breach of Invensys Controls Italy's proprietary rights in the Software, no action, regardless of form, arising from or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued.

6.8	Entire Agreement.  This Agreement (together with any information from the Order Forms and License Files necessary to identify the Software that is the subject of this Agreement or further specific restrictions applicable to such Software) constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement.  This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.  No other act, document, usage or custom shall be deemed to amend or modify this Agreement.  It is expressly agreed that the terms of this Agreement and any Order Form issued by Invensys Controls Italy shall supersede the terms in any Order Form or other purchasing document submitted by Licensee; and the terms of any Licensee Order Form or other purchasing document are expressly rejected to the extent inconsistent with the terms of this Agreement.  Certain components of the Software may also be subject to a paper or electronic license agreement delivered by or on behalf of Invensys Controls Italy concurrently herewith, the terms of which shall be supplemental hereto to the extent not inconsistent herewith.  If a copy of this Agreement in a language other than English is included with the Software or Documentation, it is included for convenience and the English language version of this Agreement shall control. 

6.9	Export Restrictions.  Licensee agrees to comply fully with all relevant export laws and regulations of the United States (the "Export Laws") to assure that neither the Software nor any direct product thereof are (I) exported, directly or indirectly, in violation of Export Laws; or (ii) are intended to be used for any purposes prohibited by the Export Laws.  Without limiting the foregoing Licensee will not export or re-export the Software:  (i) to any country to which the U.S. has embargoed or restricted the export of goods or services, which currently include, but are not limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria, or to any national of any such country, wherever located, who intends to transmit or transport the Software back to such country; (ii) to any end user who Licensee knows or has reason to know will utilize the Software in the design, development or production of nuclear, chemical or biological weapons; or (iii) to any end-user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government.

6.10	U.S. Government Restricted Rights.  The Software is a "commercial item" as that term is defined at 48 CFR 2.101 (October 1995), consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in 48 CFR 12.212 (September 1995), and is provided to the U.S. Government only as a commercial end item. Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein. Contractor/ manufacturer is Invensys Controls Italy, 8115 U.S. Route 42 North, Plain City, OH, 43064

6.11	Third Party Intellectual Property Right Notices.  The Software may contain components that are owned by third parties and are incorporated into, or embedded in, the Software pursuant to license arrangements between Invensys Controls Italy and such third parties ("Invensys Controls Italy Licensors").  Invensys Controls Italy Licensor components embedded in the Software may only be used by Licensee as a part of the Software under this Agreement, and may not be used by Licensee in any other fashion or for any other purpose.  Copyright and other proprietary rights notices of Invensys Controls Italy and Invensys Controls Italy Licensors are contained in the Software, and Licensee shall not modify, delete or obfuscate any such notices.  

6.12	Confidentiality.  The Software, including the Documentation, the terms and pricing under this Agreement, and any other information that may be marked as confidential is confidential and proprietary information of Invensys Controls Italy ("Confidential Information").  Results of any benchmark tests on the Software run by Licensee may not be disclosed outside of Licensee's organization without the prior written consent of Invensys Controls Italy. Licensee shall hold the Confidential Information in strict confidence during the term of this Agreement and for a period of five (5) years thereafter.  Licensee shall take reasonable steps to ensure that its employees and agents also comply with the strict confidentiality obligations of this Section.  Licensee acknowledges that confidential aspects of the Software (including any source code) is a trade secret of Invensys Controls Italy, the disclosure of which would cause substantial harm to Invensys Controls Italy that could not be remedied by the payment of damages alone.  Accordingly, Invensys Controls Italy will be entitled to preliminary and permanent injunctive and other equitable relief for any breach of this Section 6.12.

6.13	Note on JAVA Support.  The Software may contain support for programs written in JAVA.  JAVA technology is not fault tolerant and is not designed, manufactured, or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, direct life support machines, or weapons systems, in which the failure of JAVA technology could lead directly to death, personal injury, or severe physical or environmental damage.

