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GE Fanuc Automation North America, Inc. GFJ-317E
Software License Agreement
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS
BEFORE OPENING THIS PACKAGE OR INSTALLING THIS SOFTWARE.
OPENING THIS PACKAGE SIGNIFIES YOUR ACCEPTANCE OF THESE TERMS
AND CONDITIONS. IF YOU DO NOT AGREE WITH THEM, YOU SHOULD
PROMPTLY RETURN THE PACKAGE UNOPENED ALONG WITH ANY OTHER
ITEM THAT WAS INCLUDED IN THE SAME CATALOG NUMBER FOR FULL
CREDIT.
You, as the Customer, agree as follows:
1. DEFINITIONS
"Application Software" shall mean those portions of the Licensed Software,
in object code form only, and accompanying documentation, created by GE
Fanuc or its subsidiaries.
"Designated Computer" shall mean the one (1) computer upon which Customer
shall run the Licensed Software.
"Licensed Software" shall mean the Application Software plus any other
software, in object code form only, and accompanying documentation,
supplied by GE Fanuc pursuant to this Agreement. The Licensed Software
may include third party software, including but not limited to operating
systems, licensed to GE Fanuc. If no operating system software is
included in the software provided under this Agreement, you must make
provision for any required operating system software licenses.
2. LICENSE
2.1 Except as provided in section 2.2 below, you are granted only a
personal, non-transferable, nonexclusive license to use the Licensed
Software only on the Designated Computer. You may copy the Licensed
Software into machine readable form for backup purposes in support of
your use of the Licensed Software on the Designated Computer, limited
to one copy. No other copies shall be made unless authorized in writing
by GE Fanuc. You may not reverse compile or disassemble the software.
The Licensed Software, comprising proprietary trade secret information
of GE Fanuc and/or its licensors, shall be held in confidence by Customer
and protected from disclosure to third parties. No title to the
intellectual property is transferred. You must reproduce and include all
applicable copyright notices on any copy.
2.2 If you are an authorized GE Fanuc distributor or an Original Equipment
Manufacturer who incorporates the Licensed Software into your equipment
for sale to an end user, you may transfer the Licensed Software to an end
user provided that the end user agrees to be bound by the provisions of
this Agreement.
2.3 GE Fanuc's licensors having a proprietary interest in the Licensed
Software shall have the right to enforce such interests, including the
right to terminate this Agreement in the event of a breach of its terms
pertaining to such proprietary interests.
2.4 EXCEPT AS PROVIDED IN SECTION 2.2 ABOVE, IF YOU TRANSFER
POSSESSION OF ANY COPY OF THE LICENSED SOFTWARE TO ANOTHER
PARTY WITHOUT WRITTEN CONSENT OF GE FANUC, YOUR LICENSE IS
AUTOMATICALLY TERMINATED.
Any attempt otherwise to sublicense, assign or transfer any of the
right, duties or obligations hereunder is void.
2.5 If the Licensed Software or associated documentation is provided to
any U.S. Government entity, unit, or agency, the restrictions set forth
at section 52.227-19(c) ("Commercial computer software - restricted
rights") of the Federal Acquisition Regulations (FARs) shall apply.
If the Licensed Software or associated documentation is provided to the
U.S. Government, Department of Defense (DOD), or any entity, unit, or
agency thereof, the restrictions set forth at section 252.227-7015
("Technical Data - Commercial Items") of the DOD FAR Supplement (DFARS)
shall also apply.
3. WARRANTY
3.1 GE Fanuc warrants that the Application Software will be in
substantial conformance with the specifications in the manual pertaining
thereto as of the date of shipment by GE Fanuc. If, within ninety (90)
days of date of shipment, it is shown that the Application Software does
not meet this warranty, GE Fanuc will, at its option, either correct the
defect or error in the Application Software, free of charge, or make
available to Customer satisfactory substitute software, or, if GE Fanuc
deems the foregoing to be not reasonably practicable, return to Customer
all payments made as license fees and terminate the license with respect
to the Application Software affected.
This warranty:
(a) does not extend to defects arising from changes made to the
Application Software or the hardware with which it is intended to operate
other than by GE Fanuc;
(b) will be rendered void by any evidence of tampering with the
Application Software; and (c) does not extend to any hardware components,
subsystems peripherals, or other non-GE Fanuc-developed Application
Software whether or not supplied by GE Fanuc. GE Fanuc does not warrant
that operation of the Application Software will be uninterrupted or error
free or that it will meet Customer's needs. All other portions of the
Licensed Software are provided "as is" without warranty of any kind.
3.2 WITH RESPECT TO THE SOFTWARE WHICH IS THE SUBJECT OF
THIS AGREEMENT, THE FOREGOING WARRANTIES ARE EXCLUSIVE
AND ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN,
ORAL, IMPLIED OR STATUTORY. NO IMPLIED OR STATUTORY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE SHALL APPLY.
4. LIMITATION OF LIABILITY
4.1 IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT,
BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE SHALL GE FANUC OR ITS SUPPLIERS
BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR
PENAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT
OR REVENUES, LOSS OF USE OF THE LICENSED SOFTWARE OR ANY
PART THEREOF, OR ANY ASSOCIATED EQUIPMENT, DAMAGE TO
ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE
PRODUCTS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWN
TIME COSTS, OR CLAIMS OF CUSTOMER'S CUSTOMERS AND
TRANSFEREES FOR SUCH DAMAGES EVEN IF GE FANUC HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.2 EXCEPT AS PROVIDED IN SECTION 5, INDEMNITY, IN NO EVENT,
WHETHER AS A RESULT OF BREACH OF CONTRACT OR WARRANTY,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE,
SHALL GE FANUC'S LIABILITY TO CUSTOMER FOR ANY LOSS OR DAMAGE
ARISING OUT OF, OR RESULTING FROM THIS AGREEMENT, OR FROM ITS
PERFORMANCE OR BREACH, OR FROM THE LICENSED SOFTWARE OR ANY
PART THEREOF, OR FROM ANY SERVICE FURNISHED HEREUNDER,
EXCEED THE QUOTED CHARGES FOR THE LICENSED SOFTWARE. ANY
SUCH LIABILITY SHALL TERMINATE UPON THE TERMINATION OF THE
WARRANTY PERIOD AS SET FORTH IN SECTION 3.
4.3 If GE Fanuc furnishes Customer with advice or other assistance which
concerns Licensed Software or any portion thereof supplied hereunder or
any system or equipment on which any such software may be installed and
which is not required pursuant to this Agreement, the furnishing of such
advice or assistance will not subject GE Fanuc to any liability, whether
in contract, warranty, tort, (including negligence), strict liability,
or otherwise.
4.4 The products to be licensed or sold hereunder are not intended for
use in any nuclear, chemical or weapons production facility or activity,
or other activity where failure of the products could lead directly to
death, personal injury or severe physical or environmental damage. If
so used, GE Fanuc disclaims all liability for any damages arising as a
result of the hazardous nature of the business in question, including
but not limited to nuclear, chemical or environmental damage, injury or
contamination, and Customer shall indemnify, hold harmless and defend
GE Fanuc, its officers, directors, employees and agents against all such
liability, whether based on contract, warranty, tort (including
negligence), or any other legal theory, regardless of whether GE Fanuc
had knowledge of the possibility of such damages.
5. INDEMNITY
5.1 GE Fanuc warrants that the Application Software shall be delivered
free of any rightful claim for infringement of any United States patent
or copyright. If notified promptly in writing and given authority,
information and assistance, GE Fanuc shall defend, or may settle, at its
expense, any suit or proceeding against Customer so far as based on a
claimed infringement which would result in a breach of this warranty and
GE Fanuc shall pay all damages and costs awarded therein against Customer
due to such breach. In case the Application Software is in such suit
held to constitute such an infringement and its use is enjoined, GE Fanuc
shall, at its expense and option, either procure for Customer the right
to continued use, or replace same with a non-infringing product or part,
or modify the Application Software so that it becomes non-infringing, or
remove the software and refund the license charge pertaining thereto
(less reasonable depreciation for any period of use) and any
transportation costs separately paid by Customer. The foregoing states
the entire liability of GE Fanuc for patent and copyright infringement
by the Licensed Software or any part thereof.
5.2 The indemnity under the preceding paragraph shall not apply to any
use of Application Software in conjunction with any other product in a
combination not furnished by GE Fanuc as a part of this transaction.
As to any such use in such combination, GE Fanuc assumes no liability
whatsoever for patent and copyright infringement and Customer will hold
GE Fanuc harmless against any infringement claims arising therefrom.
6. TERM AND TERMINATION
6.1 You may terminate the license granted hereunder at any time by
destroying the Licensed Software together with all copies thereof and
notifying GE Fanuc in writing that all use of the Licensed Software has
ceased and that same has been destroyed.
6.2 GE Fanuc, upon thirty (30) days notice, may terminate this Agreement
or any license hereunder if Customer fails to perform any obligation or
undertaking to be performed by it under this Agreement or if Customer
attempts to assign this Agreement without the prior written consent of GE
Fanuc. Within twenty (20) days after any such termination of this
Agreement, Customer shall certify in writing to GE Fanuc that all use of
the Licensed Software has ceased, and that same has been returned or
destroyed, in accordance with GE Fanuc's instructions.
6.3 Sections 4, 6 and 7 of this Agreement shall survive any expiration or
termination and remain in effect. Termination of this Agreement or any
license hereunder shall not relieve Customer of its obligation to pay any
and all outstanding charges hereunder nor entitle Customer to any refund
of such charges previously paid.
7. EXPORT
7.1 If you intend to export (or reexport), directly or indirectly, the
software products or technical information relating thereto supplied
hereunder or any portion thereof, it is your responsibility to assure
compliance with U.S. export control regulations and, if appropriate, to
secure any required export licenses in your own name.
8. GENERAL
8.1 This Agreement shall be governed by the laws of the State of Delaware,
without regard to its conflict of law provisions. The provisions of the
United Nations Convention on the International Sale of Goods shall not
apply to this Agreement. Should you have any questions concerning this
Agreement, you may contact GE Fanuc by writing to:
GE Fanuc, One Columbia Circle, Albany, NY 12203.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT,
UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND
CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US AND
SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN,
AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT. FURTHER, NO CHANGE OR
AMENDMENT TO THIS AGREEMENT SHALL BE EFFECTIVE UNLESS
AGREED TO BY WRITTEN INSTRUMENT SIGNED BY A DULY
AUTHORIZED REPRESENTATIVE OF GE FANUC.
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