American Power Conversion Corporation - Software License Agreement

This software license agreement (the "Agreement") is between American Power Conversion Corporation as the "licensor" (hereafter referred to as "APC") and you (hereafter referred to as "Customer") for the APC software (hereafter referred to as "The Software") accompanying this Agreement.

By clicking "I agree" or by downloading, installing, loading, copying, or otherwise using The Software, you represent that one of the following is true:

* You have been authorized to accept these terms on behalf of Customer (the entity on whose behalf you represent that you are authorized to act).
* You intend to be personally bound to the terms of this Agreement as Customer.

If you accept these terms as a representative of an entity on whose behalf you are authorized to act, you may use The Software only on behalf of such entity. If you intend to be personally bound, use of The Software is limited to your personal use.

If you are not authorized to accept these terms on behalf of a company or other entity, and you do not intend to be personally bound, APC will not license The Software, and you must immediately cease downloading, installing, loading, copying, or otherwise using The Software.

Installation or use of The Software in violation of the terms of this Agreement is a violation of U.S. and international copyright laws and conventions.

If third-party software is provided with The Software, that third-party software is not subject to the terms of this Agreement. The license agreement of that third-party software defines the responsibilities of the Customer and APC with regard to that software. Notwithstanding, to the extent permissible, APC hereby assigns to Customer any warranties made to APC by any third-party licensors of software provided with The Software.

1. Grant of License

APC hereby agrees to grant and Customer agrees to accept a non-exclusive and non-transferable license to use The Software, subject to the terms and conditions of this Agreement. The Software is owned and copyrighted by American Power Conversion Corporation or its suppliers. The license confers no ownership of or title to The Software and does not constitute a sale of any right in The Software to Customer. APC retains all proprietary rights and title to The Software and any modifications.

2. Right to Use

The Software is licensed for use only by the number of users and/or on the number of computers described in this "Right to Use" section of this Agreement or in any related invoice.

Customer may use The Software in one of the following ways, whichever is applicable to The Software:

* If delivered as software included with any other APC product such as an Uninterruptible Power Supply, Power Distribution Unit, Computer Room Air Conditioner, Environmental Monitoring Unit, or such similar device, the software may be installed and used on one or more computers, provided the APC product is installed in association with those computers and represents supporting infrastructure in relation to those computers (i.e. the APC product is providing power, cooling, environmental monitoring, etc. to support those computers), or in order to enable one or more computers to remotely manage the APC hardware products.

* If delivered as pre-installed software on a physical server (i.e. "server appliance"), The Software may be used on that server and may be accessed remotely from other computers.

* If delivered as firmware on an embedded network management card, The Software may be used on that network management card and can be accessed remotely from other computers.

* In some cases, some additional software may be delivered with The Software, but in a disabled form, and may require the purchase of a separate license key to be activated. Such additional software is then licensed for use under the terms of this agreement only if a license key is purchased and subsequently used to activate the additional software.

3. Upgrade Policy

APC may create upgrades to, and/or other versions of, The Software from time to time. At its sole discretion, APC may choose to make such upgrades or other versions available to Customer upon payment of any applicable fees. Customer agrees to use such upgrades or other versions of The Software in accordance with the terms of this License.

4. Right to Copy

Customer may make copies of The Software for the following purposes only:

* Customer may make one copy of The Software for disaster recovery, archival, and backup purposes.
* Customer may make additional copies of The Software and documentation only when essential for the authorized and intended use of The Software as described in this agreement and/or in the documentation accompanying The Software.

Any and all copies, including any archival copy, must include the APC copyright notice and any other proprietary notices that are included with The Software, and are fully subject to the terms of this Agreement.

Customer may not redistribute The Software or make copies with the intent to redistribute.

5. Restrictions

The customer is not permitted to do any of the following:

* Disassemble, decompile, reverse engineer, or otherwise attempt to extract or create the source code from The Software, or from any APC proprietary protocols that may be accessed via The Software.
* Create derivative works of The Software or any portion thereof.
* Publish or provide any results of benchmark tests run on The Software to a third party without the prior written consent of APC.
* Rent, lease, grant a security interest in, or otherwise convey or transfer any of your rights to or license in The Software, or remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in The Software without the express written approval of APC.
* Use The Software for commercial time sharing, outsourcing environment, rental, or service bureau use or as an application service provider.
* Use any portion of The Software as a component or a base for products or services prepared for commercial sale, sublicense, lease, access, or distribution outside your organization.
* Monitor non-APC Uninterruptible Power Supplies using PowerChute.

6. Injunctive Relief

As appropriate, APC shall have the right and remedy to have this License specifically enforced by any court of competent jurisdiction by seeking and receiving temporary and/or preliminary injunctive relief.

7. Duration and Termination of This Agreement

This license shall continue so long as Customer uses The Software in compliance with the Agreement and pays any applicable licensing fee. If Customer breaches any of its obligations, this license shall terminate, and Customer agrees to destroy or return all copies of The Software and all materials provided for or with The Software upon notification and demand by APC. Customer can terminate the Agreement at any time by destroying or returning to APC all copies of The Software and documentation.

8. Limited Warranty

The APC limited warranty for The Software is for a period of ninety (90) days from the time the customer receives The Software. APC warrants during the limited warranty period that The Software will function substantially as described in the accompanying software user documentation, including online help, and that any medium upon which The Software is delivered will be free from defects in material and workmanship when given normal, proper and intended usage.

This warranty does not apply in any of the following circumstances:

* If The Software is used on a machine or operating system other than the machines and versions of operating systems specified in the documentation (i.e. an unsupported configuration).
* If The Software is subjected to misuse, neglect, accident, or exposure to environmental conditions beyond those specified in the documentation.
* If a version of The Software is used that does not include all updates available from APC.
* If The Software has been modified by Customer.

APC does not warrant that use of The Software will be uninterrupted or error free, that program errors will be corrected, that The Software is free from viruses or other malware, that The Software is compatible with any particular hardware or software platform, or that The Software will meet Customer's requirements.

APC's sole responsibility and Customer's sole remedy under this warranty is, at APC's option, to repair or replace all or any portions of The Software, or to refund any license fee paid. This limited warranty is valid only if APC receives written notice within the ninety-day warranty period.

9. Limitation of Liability

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 HEREIN ENTITLED "LIMITED WARRANTY", (i) APC SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR THE SOFTWARE, INCLUDING ANY LIABILITY FOR NEGLIGENCE; (ii) APC MAKES AND CUSTOMER RECEIVES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION; AND (iii) APC SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT

THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY CUSTOMER. FURTHERMORE, APC DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, APPROPRIATENESS FOR A PARTICULAR TASK OR APPLICATION, CURRENTNESS, OR OTHERWISE

IN NO EVENT SHALL APC BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, MULTIPLE OR PUNITIVE, INCIDENTAL DAMAGES, , ARISING OUT OF, OR CONNECTED IN ANY WAY WITH USE OF OR INABILITY TO USE THE SOFTWARE, OR FOR ANY CLAIM BY ANY OTHER PARTY EVEN IF APC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. SPECIFICALLY, APC IS NOT LIABLE FOR ANY COSTS, SUCH AS LOST PROFITS OR REVENUE, LOSS OF EQUIPMENT, LOSS OF USE OF EQUIPMENT, LOSS OF SOFTWARE, LOSS OF DATA, COSTS OF SUBSTITUTES, CLAIMS BY THIRD PARTIES, OR OTHERWISE.

SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MIGHT NOT APPLY TO YOU. HOWEVER, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIOD OF 90 DAYS.

NO DEALER, AGENT, EMPLOYEE, OR CUSTOMER OF APC IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY. The cumulative liability of APC to Customer for all claims relating to The Software shall not exceed the total amount of any and all license fees paid to APC by Customer for The Software or, if no separate license fee was required, the replacement of The Software.

10. No Warranty Under Hazardous, High-Risk, or Life-Threatening Conditions

The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of The Software could lead directly to death, personal injury, or severe physical or environmental damage. Accordingly, APC and its suppliers specifically disclaim any express or implied warranty of fitness for such hazardous, high-risk, or life-threatening activities.

11. Use of Technical Information Related to Customer Support

Customer agrees that APC may use technical information that the customer provides while receiving technical/customer support services. APC may use such information for its own business purposes, including product support and development, but agrees not to use such information in any form that might identify Customer.

12. Transfer Restrictions

This agreement, the license granted hereunder, The Software and any modifications thereto may not be assigned or in any way transferred without the prior written consent of APC.

13. Language and Jurisdiction of the Agreement

The original of this agreement has been written in English. The parties hereto waive any statute, law, or regulation that might provide an alternative law or forum or to have this agreement written in any language other than English. Any translation of this agreement to a language other than English is provided only for the convenience of Customer and is not the legally binding version of the agreement.

The terms of this agreement shall be construed in accordance with the substantive laws of the Commonwealth of Massachusetts, United States of America, without giving effect to the principles of conflict or choice of law of such commonwealth. APC and Customer exclude the United Nations Convention on Contracts for the International Sale of Goods from this agreement.

14. U.S. Government Restricted Rights Legend

The Software and documentation are "commercial items" as that term is defined in 48 C.F.R. 2.101 (October 1995) consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 227.7202-1, 227.7202-3 and 227.7202-4 (June 1995). If Customer is the U.S. Government or any agency or department thereof, The Software and documentation are licensed only as a commercial item, and with only those rights as are granted to all other end users pursuant to the terms and conditions of this agreement. Licensor is American Power Conversion Corporation, P.0. Box 278, 132 Fairgrounds Rd., West Kingston, RI 02892, U.S.A.

15. Export Controls

None of The Software or underlying information or technology may be downloaded or otherwise exported or re-exported to any of the following:

* Into (or to a national or resident of) any country to which the U.S. has embargoed goods.
* To anyone on the U.S. Treasury Department's list of Specially Designated Nationals.
* To anyone on the U.S. Commerce Department's Table of Denial Orders.

By downloading or using The Software, Customer agrees to the foregoing and represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list.

Customer is responsible for complying with any local laws in its jurisdiction that might impact its right to import, export or use The Software, and represents that it has complied with any regulations or registration procedures required by applicable law to make this license enforceable.

16. Indemnification

Customer shall defend, indemnify, and hold APC and its directors, officers, agents, employees, members, subsidiaries, and affiliates from and against any claim, action, proceeding, liability, loss, damage, cost, or expense (including, without limitation, attorney's fees) arising out of or in connection with Customer's use of the Software.