End-User License for PharosN Power Client

20 May 2018

THE SOFTWARE IS LICENSED AS A SERVICE, NOT SOLD.  USE OF THIS SOFTWARE IS SUBJECT TO LICENSE RESTRICTIONS. CAREFULLY READ THIS LICENSE AGREEMENT BEFORE SUBSCRIBING and USING THE SOFTWARE. SUBSCRIBING, RUNNING and USING OF SOFTWARE INDICATES COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. ANY ADDITIONAL OR DIFFERENT SERVICE SUBSCRIPTION TERMS AND CONDITIONS SHALL NOT APPLY.

This End-User License Agreement ("EULA") for Power Client Software is an additional legal agreement supplementary to “PharosN Engine Software License Agreement” between you, the end user of the license rights granted herein as Licensee, and company GOLEM IMS GMBH, Hausfeldstrasse 22/1/7, Donaustadt 1220, Vienna, Austria further referred as “Provider” or “Licensor”.

The agreement governs the access and use of the PharosN Power client-side software (POWER CLIENT SOFTWARE) for accessing engine-side software (PHAROSN ENGINE SOFTWARE) and mentioned below as SOFTWARE accompanying this EULA, including any and all associated media, printed materials, and "online" or electronic documentation protected by copyright laws. The agreement is the addition to and inherent part of other agreements “PHAROSN ENGINE SOFTWARE LICENSE AGREEMENT” and “TERMS OF SERVICES” FOR PHAROSN PORTAL” collectively named “Agreements”.  The Terms PHAROS NAVIGATOR and PHAROSN have the same meaning.

By installing, copying, or otherwise using the SOFTWARE, you agree to be bound by the terms of all these Agreements. The terms also apply to any related services such as Provider updates, supplements, Internet-based services, and support services for this software, unless other terms accompany those items.

IF YOU DO NOT, OR YOUR ORGANIZATION DOES NOT AGREE TO THESE TERMS AND CONDITIONS, IMMEDIATELY STOP USING OF SOFTWARE AND CERTIFY DESTRUCTION OF SOFTWARE AND ALL ACCOMPANYING ITEMS AND CANCEL ALL ITS RELEVANT SUBSCRIPTIONS AT PHAROSN PORTAL.

Terminology:

- Administrator of Business Applications (ABA) is a user of the PharosN engine that is responsible for its running, including adding or removing users, defining their rights, approving application objects, monitoring the service implementation, etc.  Members of ABA Group have special administrative privileges as engine users.

- Assigning a License means simply to designate that license to one computer hardware device where the software instance is installed and running.

- Client software is a part of overall PharosN software system running on user device having own hardware and operating software and communicating to engine by transferring user comments and receiving data

- Power Client software or Model Builder is a part of overall PharosN software providing users with tools to build complex application models of target cyber-physical systems and access to application services provided by PharosN engine. This software runs on user devices having own hardware and one of the applicable operating system software and communicating to PharosN engine by transferring user comments and receiving data. Compared to Power Client the Light Client does not provide model builder functionalities.

- VOrg or Virtual Organization is a group of PharosN portal members who made them associated with some (1) Organization as legal entity or (2) a group of collaborating individuals having no association to legal entity. In both cases the VOrg is registered by some Member of Portal named as its Master.

- PharosN portal at domain pharosnavigator.com or win2biz.com is 24/7 online services providing its Members and their VOrgs with PharosN information services and tools for managing their subscriptions and VOrgs as well as back-end system supporting PharosN engine implementation and updating for all registered customer subscribers

- Users of engine software instance are persons who were authorized to use engine as Software Instance by its ABA. Users may or may not necessary be Members of PharosN portal.   

- Service subscription is made by registered Members of VOrg prior to its implementation in the VOrg

- Software means the proprietary PharosN software product(s) provided in connection with this Agreement for implementation and installation for using by you (or as otherwise specified in any related Software Ordering Document). “Software” shall also include any Support and Maintenance Services releases provided to you under this Agreement. Unless otherwise noted, the Software and Documentation are referred to collectively herein as “Software”.

- Software services in the context of the License Agreement are PharosN Software which is licensed to you as services provided during the term or license.

- Term of License means the Software license term specified on the applicable Subscription Ordering Document or by an Authorized Partner. The License Term may be a fixed term or perpetual if the Subscription is extended automatically.

Grant of License

1. Subject to your compliance with the Agreement the Provider grants you, the end user, a non-exclusive license enabling you to use the SOFTWARE during valid subscription, trials or demonstration periods. 
2. All conditions stated below apply both to the SOFTWARE as a whole and to all of its separate components. 
3. The SOFTWARE contains valuable trade secrets and confidential information belonging to Provider and is protected by copyright, including, without limitation, by Copyright Laws by European Union and international treaty provisions, and the applicable laws of the country in which it is being used. Any use of the SOFTWARE outside of or in contravention of the terms and conditions of this EULA shall constitute a breach of Provider intellectual property rights and shall give cause for the revocation of all rights to use the SOFTWARE granted to you under this EULA.

License

1. Power Client access license that provides access to the full range of Software functions supported by PharosN engine and enables defining, modifying and managing application objects’ models, indicators, its targets, data elements, data sources and its linkages, import procedures and other functions providing you with necessary tools to develop, modify and upgrade your complex system applications.
2. The Software becomes available to you at your local PharosN engine after the relevant subscription was made for your VOrg in addition to the software service “PharosN engine” at PharosN portal.
3. You may select and install Power Client software by using your browser for accessing your local PharosN engine which has special on-line page in menu “Tools/My Clients” listing all available client subscriptions for this engine (or pool of running client subscriptions). You may install on each your device one copy of the Power Client Software having unique LICENSE KEY released at the moment of subscription and valid till the end of subscription. Your Power Client license is assigned to your name as Licensee and presented in the list of clients after its installation becoming not available for other users.  
4. The Power Client software is a part of the larger service system which includes PharosN engine and PharosN portal and running in connectivity to each other. The Software, PharosN engine and PharosN portal exchange standard computer information using secure communication protocols for Internet-based services.
5. The license is applied to all Power Client Software versions available for different types of devices and its operation systems. 
6. No right or license is being conveyed to you to use the Power Client software for accessing any other engines installed in your own or any other organization. Licensee is further prohibited from using the Software in any manner other than as described above.

License transfer and reassignment

1. Your PharosN engine has a pool of available client licenses which is updated automatically by PharosN portal after members of relevant VOrg make subscriptions for client software to your engine. You or any registered engine user can select and assign available software license for own use by using this page and becoming the Licensee.
2. Your name is presented at PharosN engine page “Clients” after the client software is installed on your device and registered.
3. You have right to resubmit the license to the pool of available free-for-use licenses by its reassignment on PharosN engine client registration page making it available to another user during the subscription period.
4. Such cancellation the Power Client license results in changing of your name as Licensor to status “Available” at PharosN engine page “Clients”. Then it becomes free for selection by any other user registered at this engine allowing adaptation to changing user requirements e.g. if employee leaves Organization or device become broken or not used anymore, etc.
5. The cancellation rights are provided to you and your engine ABA.

License limitations

This license is expressly limited

1. For accessing one PharosN engine which was selected in relevant VOrg at the moment of subscription for Power Client software service and assigned to this VOrg at PharosN portal
2. For running only with this PharosN engine during its valid subscription period and ending if the engine subscription ends
3. For being assigned to and used by one registered user of this PharosN engine
4. To be installed and used on one device of this user
5. To be installed from the distributive that was available and kept on the PharosN engine that had been selected as target engine for this subscription.
6. To current official version of the Software only and you agree that new software version replaces previous ones after the end of update interval, the License Agreement for any previous version becomes void and you shall cease and erase previous version of the Software.

You agree and certify that you may not sublicense, lease, loan, rent, or transfer the SOFTWARE in any other way beside described in the EULA.  

TERM

This Agreement shall be effective as of the date of subscription for Power Client made at PharosN portal at particular VOrg for access to (1) PharosN engine installed in (2) this VOrg by (3) user registered on the engine and (4) shall extend for the whole subscription period. This Agreement is ceased automatically after the end of subscription period if not expended.

LIMITATION ON PERFORMANCE

The software performance may be limited by device hardware and third party software which is run concurrently with the client software.

Updates and Upgrades  

Your Power Client Software is updated automatically after each release of new version during the subscription period. You may run only the last version of instance after the end of transitional period required for your engine to download and update your software. Provider may provide additional functionality for the newly released software versions applicable to other license terms and fees. The support for each previous version ends after the end of transitional period and you should stop using the previous version of the software and destroy its copy.

INDEMNITY

Licensor agrees to defend, indemnify, and hold Licensee, and its officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third parties against Licensee based on a breach by Licensor of any representation and warranty made in this Agreement as well as for any third-party claim for infringement of its intellectual property rights based on Licensee's use of the Software.

Warranty and Disclaimer

Due Authority. Provider represents and warrants that it has the legal power and authority to enter into this Agreement, ability and authority to license and distribute the SOFTWARE, including all the images, photos, animations, audio-video components, sound, text and "applets" incorporated into the SOFTWARE, as well as the accompanying printed materials and all of the SOFTWARE copies.

WARRANTY DISCLAIMER. ALL PRODUCTS ARE PROVIDED “AS IS”. You bear the risk of using it.  PROVIDER AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. PROVIDER SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF PROVIDER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PROVIDER NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY ENGINE(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

DISCLAIMER OF OTHER WARRANTIES. No oral or written statement, information or advice given by Provider, its Affiliates, or their respective employees, partners, dealers, or agents shall create any warranties in addition to those express warranties set forth in this Section.

LIMITATION OF LIABILITY

With respect to defects or deficiencies in the Provider Services, the liability of Provider and Provider Affiliates will be limited to performance of its responsibilities under Section “Warranties”.

With respect to other breaches of contract, the liability of Provider and Provider Affiliates shall be limited to your actual damages with respect to the computer affected by the breach, and in no event will such liability exceed the total amount received by Provider from you under the Agreement as service fee for your current Subscription Period.

IN NO EVENT WILL PROVIDER, THE PROVIDER CONTRACTORS, PROVIDER PARTNERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE ARISING OUT OF THE USE OR INABILITY TO USE THE PROVIDER SERVICES OR TO USE OR RETRIEVE ANY SERVICE OR ITS BACKUP DATA, WHETHER FOR BREACH OF WARRANTY OR OTHER CONTRACT BREACH, NEGLIGENCE OR OTHER TORT, OR ON ANY STRICT LIABILITY THEORY, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES OR A REMEDY SET FORTH IN THESE TERMS OF USE IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.

NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE 1 EURO. THIS SECTION (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION “RESTRICTIONS” OR SECTION “COMBINING THE PRODUCTS WITH OPEN SOURCE SOFTWARE OF THIRD PARTY CODE IN PROVIDER PRODUCTS”. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. The parties agree that the limitations specified in this Section “Limitation of Liability” will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

IN ADDITION, YOU UNDERSTAND THAT THE SERVICES ARE NOT DESIGNED OR INTENDED TO BE FAIL-SAFE, OR REAL-TIME OR BE USED AS CRITICAL COMPONENTS IN LIFE-SUPPORT OR SAFETY DEVICES OR SYSTEMS, OR ANY OTHER MISSION CRITICAL APPLICATION THAT INVOKES THE POTENTIAL RISKS OF DEATH, PERSONAL INJURY OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE (INDIVIDUALLY AND COLLECTIVELY, "CRITICAL APPLICATIONS"). ANY USE OF THE SERVICES WITH RESPECT TO SUCH CRITICAL APPLICATIONS IS FULLY AT YOUR OWN RISK, IN PARTICULAR, WITH RESPECT TO AUTOMOTIVE, ROBOTICS, AEROSPACE / DEFENSE, AVIONICS, MEDICAL DEVICES OR PRODUCTS, HEALTHCARE APPLICATIONS, SUBJECT TO APPLICABLE LAWS AND REGULATIONS GOVERNING LIMITATIONS ON PRODUCT LIABILITY.

Neither Provider nor any Provider Affiliate assumes any liability to any party other than you arising out of your Use or inability to Use the Provider Services. The limitations of damages set forth above are fundamental elements of the bargain between Provider and you. Provider would not be able to provide the Provider Services to you without such limitations.

No advice or information, whether oral or written, obtained by you from the Provider or through or from the site shall create any warranty not expressly stated in the terms of use.

EXCLUSIONS FROM WARRANTY. This warranty does not cover problems caused by your acts (or failures to act), the acts of others, or events beyond Provider’s reasonable control.

REMEDY FOR BREACH OF WARRANTY. Provider will repair or replace the software at no charge. If Provider cannot repair or replace it, Provider will refund the amount which was paid for the subscription for the software service to the Portal Member who paid it. You must cancel subscription for the software and uninstall it. These are your only remedies for breach of the limited warranty.

NO OTHER WARRANTIES. The limited warranty is the only direct warranty from Provider. Provider gives no other express warranties, guarantees or conditions. Where allowed by your local laws, Provider excludes implied warranties of merchantability, fitness for a particular purpose and non-infringement. If your local laws give you any implied warranties, guarantees or conditions, despite this exclusion, your remedies are described in the Remedy for Breach of Warranty clause above, to the extent permitted by your local laws.