CIMETRIX INCORPORATED

CIMETRIX LICENSE AGREEMENT

Table of Contents

• Introduction
• Definitions
• End User License Terms
• Solution Provider Terms
• Service Terms
• General Provisions

Introduction

This Cimetrix License Agreement for Subscription-Based Solutions (“CLA-S”) governs all Cimetrix Software obtained, received, or used by Solution Providers that bundle Cimetrix Software with other software and/or hardware and offer the resulting Bundled Products as cloud-based solutions to End Users for use on a subscription basis. This CLA-S also governs any Cimetrix Software installed on any hardware that is used by End Users to enable or facilitate their use of the cloud-based solutions. Since this CLA-S covers multiple different uses of Cimetrix Software, it is divided into different sections that may or may not apply to you.

If you are an Solution Provider, the End User License Terms govern your use of Cimetrix Software and Documentation as an End User, including software development kits (SDKs) or other Cimetrix Software put to Internal Use, such as in your test labs or demo centers. The Solution Provider Terms govern your bundling of Cimetrix Software with other software and/or hardware to create Bundled Products that you host and offer as cloud-based solutions and services to End Users on a subscription basis. The General Provisions apply to everyone. The Service Terms govern any Services that you receive from Cimetrix.

If you are an End User or its Affiliate, the End User License Terms govern your use of any Cimetrix Software that is installed on any hardware that you own or control. The General Provisions apply to you, and the Service Terms govern any Services you receive from Cimetrix.

Definitions

SDK License: An SDK License permits one (1) named individual (the “Named User”) associated with a Solution Provider to install and make Internal Use of the SDK on a single Computing Device or, if the Solution Provider has current support coverage from Cimetrix, on up to five (5) Computing Devices directly used by the Named User, provided that only one instance of the SDK may be actively running at a time. If support is not renewed, the Named User must remove the SDK from all but one (1) Computing Device. Cimetrix will issue a COA and valid license files as appropriate for each SDK License that you purchase. A valid license file must be installed on each Computing Device that runs the SDK. The SDK may only be used for developing Bundled Products. You may transfer the SDK License from one Named User to another Named User within your software engineering team.

Component License: A Component License authorizes the local installation, on one or more Computing Devices owned or controlled by an End User (or a Solution Provider), of Cimetrix Software Components that relate to a Bundled Product. In no event, however, shall an entire, stand-alone copy of any Cimetrix product be installed on any Computing Device owned or controlled by an End User.

2. Access. You agree not to disclose or provide access to the Cimetrix Software or any Confidential Information of Cimetrix to any Person except on a need-to-know basis to employees and other Persons not competitors of Cimetrix who have contracted to provide you services, provided that Solution Providers may provide access to the functionality of Bundled Products to End Users pursuant to Subscription Agreements as stated in the Solution Provider Terms and may install Cimetrix Software Components on hardware owned or controlled by an End User pursuant to the Component License set forth above. It is your responsibility to ensure that all employees and service providers comply with this CLA-S and do not use the Cimetrix Software or any Cimetrix Confidential Information to compete with Cimetrix. You agree to use your best efforts to ensure that all Persons having access to the Cimetrix Software and any Cimetrix Confidential Information protect them from unauthorized use, copying, and disclosure.
3. Compatible OS software/licenses. Cimetrix Software requires use of compatible operating system (OS) Software. It is your responsibility to acquire compatible operating system Software and all required licenses for the use of such Software. Cimetrix has no responsibility with respect to that Software.
4. Customization. Cimetrix may in its sole discretion provide you additional Software that customizes the Cimetrix Software used on your system. Such Software and any associated media shall be owned exclusively by Cimetrix and shall be part of the Cimetrix Software governed by these End User License Terms.
5. Evaluation versions. Any Cimetrix Software designated as an "Evaluation Version" (using those words or words of similar meaning) may not be used for any purpose other than evaluation or testing and must be promptly returned to Cimetrix at its request. In such event, you must destroy all Copies of the Cimetrix Software, such as electronic Copies, that you cannot return to Cimetrix.
6. No Source Code. This CLA-S does not entitle you to receive or otherwise have access to any of the Source Code of any Cimetrix Software.
7. Transfer. You agree that your rights to use the Cimetrix Software may not be sold, assigned, licensed, or otherwise transferred, by operation of law or otherwise (such as by merger), without the prior written consent of Cimetrix, except as expressly provided herein. Your license rights in the Cimetrix Software will not be transferred to a successor entity, unless such entity expressly agrees in writing to be bound by all the terms and conditions of this CLA. If you properly obtained the Cimetrix Software embedded in a Bundled Product, however, you may transfer your license rights under this CLA if you: (a) transfer all of your right, title, and interest in and to the complete, original Bundled Product; (b) provide your transferee and specifically bring to its attention this CLA, at or before the time you transfer physical possession of the Bundled Product; and (c) you retain no Copy of the Cimetrix Software. In all cases involving Bundled Products, if the Cimetrix Software does not remain a part of the original Bundled Product, the Cimetrix Software may not be used or transferred, and you may not transfer your license rights under this CLA.
8. Effective date. These End User License Terms, as supplemented by the Definitions and General Provisions, are effective from the date the Cimetrix Software is made available to you, either alone or as part of a Bundled Product, and will remain in force until terminated as provided in this CLA-S.
9. Term and termination. This CLA-S shall remain in effect for you in your capacity as an End User until this CLA-S is terminated by you, by Cimetrix, by operation of the terms hereof, or otherwise by operation of law. You may terminate this CLA-S as it applies to you in your capacity as an End User at any time by uninstalling and destroying all Copies of the Cimetrix Software that are in your possession or control as an End User and notifying Cimetrix in writing of the termination and your removal and destruction of the Cimetrix Software. This CLA-S and your associated license to use the Cimetrix Software in your capacity as an End User shall otherwise terminate upon the earliest occurrence of any of the following events: (a) a breach by you of any term, provision, or obligation of this CLA-S; (b) any assignment, transfer, or disposition of the Cimetrix Software by you, except as expressly provided in this CLA-S or as otherwise expressly authorized in advance in writing by Cimetrix, or (c) mutual written agreement with Cimetrix. On termination of this CLA-S as applicable to you in your capacity as an End User for any reason, you shall promptly uninstall and destroy all Copies of the Cimetrix Software that are in your possession or control as an End User and confirm in writing to Cimetrix that you have properly done so.
10. Improvements. In its sole discretion, Cimetrix may make updates, upgrades, or other Improvements of the Cimetrix Software available to you. Normal product updates are provided to clients who purchase ongoing support services from Cimetrix. You have the right not to accept any Improvement, except that your failure to accept Improvements will void the Limited Warranty provided in these End User License Terms, to the extent the failure to accept and install the Improvement interferes with the operation or functionality of the Cimetrix Software. The terms and conditions of this CLA-S shall apply to all Improvements, unless you accept updated terms, or another agreement governs the Improvements.
11. Support. These End User License Terms do not entitle you to any support or other Services with respect to the Cimetrix Software, including without limitation releases of the Cimetrix Software that correct errors or defects in the Cimetrix Software (except as provided in the Limited Warranty) or that contain Improvements to the Cimetrix Software. You must purchase the right to receive Software support or other Services from Cimetrix or an authorized distributor separately.
12. Limited warranty. The Cimetrix Software is provided to you with and subject to the following limited warranty and associated terms and conditions:  

Cimetrix warrants for a period of ninety (90) days from the date the Cimetrix Software is made available to you that the Cimetrix Software, when properly installed and used in compliance with the Documentation, shall operate on compatible equipment and operating system software substantially in accordance with the specifications set forth in the Documentation (the “Limited Warranty”). The Limited Warranty is contingent upon your notifying Cimetrix in writing of any errors and non-conformities within ninety (90) days after you receive the Cimetrix Software. Changes made to any Cimetrix Software during the warranty period to correct any errors will not extend the warranty period. Cimetrix does not warrant that the Cimetrix Software will meet your requirements, that the operation of the Cimetrix Software will be uninterrupted, error-free, or secure, or that all defects will be corrected.

Your only remedy, if the Cimetrix Software fails in a material manner to perform substantially in accordance with the published specifications, is for Cimetrix to use reasonable efforts to remedy any such material failure or to accept return of the Cimetrix Software, in full satisfaction of any and all claims you may have. The Limited Warranty is also subject to the following other limitations and disclaimers:

The Limited Warranty does not cover damage to the Cimetrix Software, or to any End User or third-party equipment, caused by power spikes or other potentially harmful environmental or operating conditions; third-party software and other materials, acts of god, terrorism, or sabotage; user error; third-party devices; configuration changes not completed by or under the express direction of Cimetrix; or End User abuse, neglect, and/or negligence. The Limited Warranty does not extend to software viruses, corrupted software, or data. The Limited Warranty will be rendered null and void if any attempt is made to modify the Cimetrix Software by anyone other than Cimetrix or Person(s) acting under the express written direction of Cimetrix.

The Cimetrix Software is not designed to be fault tolerant. The Cimetrix Software is not designed, manufactured, or intended for use with on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities; aircraft navigation or aircraft communication or control systems; direct life support machines; weapons systems; or other uses in which failure of the software could lead directly to death, personal injury, or severe physical or environmental damage. Cimetrix disclaims all liability for any death, injury, or damage resulting from any such use of the Cimetrix Software.

The Cimetrix Software is only compatible with certain computers and operating systems. It is not warranted for non-compatible computers or operating systems. Call Cimetrix for information about compatibility. Cimetrix makes no representations or warranties regarding the compatibility of any third-party Software or hardware. The published specifications for the Cimetrix Software may be updated by Cimetrix from time to time, and any such update will constitute a change in specifications and the Limited Warranty.

With respect to any Services provided by Cimetrix, it is your responsibility to back up the contents of your hard drives, including any data that you have stored or Software installed thereon before the Services begin. Cimetrix will not be responsible for any damage to or loss of any programs, data, or other information stored on any media involved in the Services provided by Cimetrix.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING PROVISIONS CONTAIN THE ONLY REMEDIES YOU WILL HAVE IF THE CIMETRIX SOFTWARE DOES NOT PERFORM ACCORDING TO THE LIMITED WARRANTY OR YOUR EXPECTATIONS. THE REASON FOR THIS LIMITATION IS THAT THE CONSIDERATION FOR THE CIMETRIX SOFTWARE REFLECTS AN ALLOCATION OF RISKS BETWEEN YOU AND CIMETRIX, AND THE CONSIDERATION WOULD NATURALLY HAVE TO BE HIGHER IF ADDITIONAL REMEDIES WERE AVAILABLE TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE, PROVINCE TO PROVINCE, AND COUNTRY TO COUNTRY.

Solution Provider Terms

1. Authorization. A Solution Provider is authorized to (a) bundle Cimetrix Software with software and/or hardware of the Solution Provider and/or its third-party suppliers, as specified in writing by and between Cimetrix and the Solution Provider, and (b) install and host the resulting Bundled Product on one or more Computing Devices owned or controlled by the Solution Provider for use as a cloud-based solution offered to End Users for Internal Use pursuant to Subscription Agreements. A Solution Provider is also authorized to distribute to End Users any required Cimetrix Software Components.
2. Monthly reports. The Solution Provider shall provide Cimetrix with complete, accurate written monthly reports of the usage of Bundled Products by the Solution Provider’s End User customers. The monthly reports shall contain sufficient detail to make a proper calculation of the fees the Solution Provider owes to Cimetrix and shall be provided to Cimetrix by 10th calendar day after the end of each month.
3. Payment of fees. The Solution Provider agrees to pay Cimetrix a monthly fee for each Integration Point that accesses or uses a Bundled Product during the calendar month. The applicable monthly fee will be specified in a written proposal from Cimetrix or its Authorized Sublicensor and accepted by the Solution Provider through the issuance of a purchase order and will apply for the time periods stated in the proposal and for any time periods subsequently agreed by the parties in writing. Otherwise, Cimetrix's standard Solution Provider fees will apply. The Solution Provider agrees to pay Cimetrix the applicable fees on a monthly basis, by the last day of the next month, based on what the Solution Provider has invoiced or should have invoiced to the End Users, whichever amount is greater, and not based on whether and when the Solution Provider actually collects from the End Users. In other words, the Solution Provider, not Cimetrix, shall bear the risk of non-collection from the End Users.
4. Records examinations. Cimetrix shall have the right, upon ten calendar days’ notice, to examine and prepare excerpts and make copies of the Solution Provider’s applicable books and records to determine and verify (a) access to and usage levels of the Bundled Products by the End User customers of the Solution Provider, (b) the completeness and accuracy of the Solution Provider’s monthly reports to Cimetrix, (c) the calculation and the Solution Provider’s timely payment of all required fees to Cimetrix, and (d) the Solution Provider’s compliance with the CLA-S. Cimetrix may exercise these rights using its own employees or third-party contractors. If any examination reveals an underpayment of fees to Cimetrix, Solution Provider agrees to make prompt payment to Cimetrix of all fees due and owing, with applicable interest. If any underpayment equals seven percent or more of the required fees for the period examined, or for any twelve-month period contained within such examination period, the Solution Provider shall pay to Cimetrix the reasonable costs and expenses of the examination, as specified in a Cimetrix invoice. These rights shall survive for three years after termination of this CLA-S by either party.
5. Required documentation. The Solution Provider agrees to include a copy of or link to this CLA-S, or at a minimum the Definitions, End User License Terms, and General Provisions of this CLA-S, with the documentation that the Solution Provider requires the End User to accept, to acquire any Cimetrix Software that must be installed on hardware owned or controlled by the End User to enable or facilitate the End User’s use of the Bundled Product by subscription with the Solution Provider. However, if the Solution Provider has an end user agreement that is at least as protective of Cimetrix and its Software and Documentation as the Definitions, End User License Terms, and General Provisions of this CLA-S (an “End User Agreement”), the Solution Provider may distribute that Cimetrix Software pursuant to the Solution Provider's qualifying End User Agreement, after Cimetrix has given written approval of the Solution Provider’s End User Agreement.
6. Security Measures. The Solution Provider agrees to implement reasonable and appropriate physical, administrative, and technological security measures and safeguards with respect to hosting Bundled Products and providing End Users access to and use of the Cimetrix Software and Bundled Products.
7. Support. Cimetrix makes integration Services and training and support programs available to Solution Providers under the Service Terms of this CLA-S. Descriptions and pricing for the Cimetrix integration Services and training and support programs are available from Cimetrix. These Solution Provider Terms do not give Solution Provider any license or right to any Cimetrix Source Code.
8. Resellers. If the Solution Provider offers subscriptions for the use of Bundled Products through resellers, the Solution Provider shall ensure that each of them complies with all applicable terms and conditions of this CLA-S and shall be responsible to Cimetrix for any failure of compliance.
9. Use of related Cimetrix IP. Cimetrix marks in connection with the authorized offering of subscriptions to End Users to use Bundled Products and providing subscription services. All uses that the Solution Provider makes of Cimetrix marks shall comply with the Cimetrix Trademark Guidelines and Policies, as Cimetrix may amend them from time to time in its sole discretion. All goodwill arising from the use of Cimetrix marks shall belong solely to, and inure to the exclusive benefit of, Cimetrix. In addition, with the prior written consent of Cimetrix, a Solution Provider may modify, copy, use, and/or distribute Documentation associated with the Cimetrix Software included in the Solution Provider’s Bundled Products, to adapt the Documentation for use with the Bundled Products and instruct End Users in their proper use. All such Modifications and all resulting Derivative Products, as well as all of the Intellectual Property associated with such Modifications and Derivative Products, shall be owned exclusively by Cimetrix, except for any pre-existing works of authorship, such as text, graphics, audio, video, documentation, or other materials that relate to the Solution Provider’s and/or its third-party licensors’ software and/or hardware that is combined with the Cimetrix Software to create the Bundled Products.
10. Agreement not to make any additional representations or warranties. The Solution Provider and Cimetrix agree not to make any written or oral representations, warranties, or commitments about the other party's products that are inconsistent with published documentation for such products or (for Cimetrix products) the End User License Terms. The Solution Provider and Cimetrix also each agree to conduct business at all times in a manner that reflects favorably on the other party and its products, subject to each party's right to seek judicial relief for any breach or threatened breach of this CLA-S.
11. 11. Compliance with Laws. The Solution Provider shall comply with all laws, rules and regulations (including local, international and foreign laws, rules and regulations such as U.S. federal and state laws, rules, and regulations) (“Laws”) that apply to its provision of services to End Users using the Cimetrix Software and Bundled Product(s), including Laws on the privacy, use, and protection of personal information, financial information, and other relevant information of End Users and their personnel.
12. Term and Termination. These Solution Provider Terms, as supplemented by the Definitions and the General Provisions, will become effective when you purchase an SDK from Cimetrix or an Authorized Sublicensor and accept a written proposal from Cimetrix or an Authorized Sublicensor specifying the Bundled Products you will create and offer as cloud-based solutions and services to End Users pursuant to this CLA-S. Then, and only then, will you become an authorized Cimetrix Solution Provider. You may terminate your participation as an authorized Cimetrix Solution Provider on thirty (30) days written notice to Cimetrix, unless you have agreed to minimum payments or other minimum economic requirements. In those instances, you may terminate your participation as an authorized Cimetrix Solution Provider on thirty (30) days written notice to Cimetrix only after making the minimum required payments and fulfilling all other economic requirements. Cimetrix may terminate your status as an authorized Cimetrix Solution Provider for any breach by you that is not cured within thirty (30) days after you receive notice of the breach from Cimetrix. On termination of this CLA-S as to you in your capacity as a Cimetrix Solution Provider for any reason, you shall promptly uninstall and destroy all Copies of the Cimetrix Software that are in your possession or control in your capacity as a Cimetrix Solution Provider and confirm in writing to Cimetrix that you have properly done so.  
    
    

Service Terms

The following terms and conditions (the “Service Terms”) govern all of the Services that Cimetrix performs or otherwise provides, including training and support, whether or not a fee is charged for the Services:

1. Cimetrix Services. Cimetrix provides training, onboarding, coaching, technical support, and other Services for its products, as described in the Cimetrix  Client Support Overview, which Cimetrix may modify from time to time in its sole discretion. Any changes to the Client Support Overview will only apply to Service orders placed or Service proposals made by Cimetrix after the changes. Please check the most recent version of the Client Support Overview before placing any order for Services.
2. Limited warranty. Cimetrix will perform its Services with reasonable skill and diligence and in substantial compliance with Cimetrix’s applicable written descriptions, if any, for such Services contained in the Client Support Overview or the written specifications agreed by the parties in writing for any associated deliverables (the “Limited Services Warranty”). If any Service or associated deliverable does not comply with the Limited Services Warranty, and you notify Cimetrix within thirty (30) days of receiving the applicable Service or deliverable, Cimetrix will, at its option and expense, either (a) re-perform the Service or correct the deliverable so that it complies with the Limited Services Warranty, or (b) provide you a refund for the applicable Service or deliverable, in which case your ownership or right to use the applicable Service or deliverable will terminate and belong to Cimetrix. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE REMEDY PROVIDED HEREIN WILL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY NONCOMPLIANCE WITH THE LIMITED SERVICES WARRANTY. THE LIMITED SERVICES WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE, PROVINCE TO PROVINCE, AND COUNTRY TO COUNTRY.
3. Intellectual Property ownership. Any and all Confidential Information, materials, data, and other Intellectual Property that you or your licensors own and that you provide to Cimetrix to assist Cimetrix in performing any Services (“Client IP”) shall, as between Cimetrix and you and your licensors, remain the sole and exclusive property of you or your licensors. Similarly, any and all Confidential Information, Cimetrix Software and Documentation, materials, data, and other Intellectual Property owned by Cimetrix or its licensors (“Cimetrix IP”) and used by Cimetrix in providing Services shall, as between you and Cimetrix and its licensors, remain the sole and exclusive property of Cimetrix or its licensors. Any and all Improvements made to the Cimetrix IP in performing the Services and any new Intellectual Property relating to the Cimetrix IP that is created in performing the Services, whether or not you participate in creating them, shall be the sole and exclusive property of Cimetrix or its licensors. Any and all Improvements and new Intellectual Property solely relating to the Client IP and not to the Cimetrix IP that Cimetrix creates or helps to create while performing Services shall be your or your licensors sole and exclusive property. In case of doubt or good-faith dispute, the Intellectual Property will belong exclusively to Cimetrix. The parties agree to perform all acts and deliver all assignments and other instruments necessary and appropriate to effectuate the provisions of this section.
4. Services acknowledgement. You acknowledge that Cimetrix and its service team provide Services to customers in various industries and that the expertise and proficiency that Cimetrix and its service team develop in helping integrate Cimetrix Software with the software and hardware of its customers benefits all customers and reduces the overall cost of Cimetrix’s Services. You also acknowledge that if the members of Cimetrix’s service team were precluded from working on projects and providing Services for different customers in the same industry, Cimetrix could not operate its business efficiently, Cimetrix would not be able to develop and retain the expertise it needs to solve customer issues effectively, and its Services may be cost-prohibitive. For that reason, notwithstanding anything contained in this Agreement, including Sections 15 of the General Provisions, you agree that it will not be a breach of this CLA-S or constitute an infringement, misappropriation, or other violation of your Intellectual Property rights or the Intellectual Property rights of your third-party suppliers for the members of Cimetrix’s service team, after providing you Services, to use the information retained in their unaided memories to provide Services or deliverables to other customers of Cimetrix, including customers in your same industry. If you have concerns about the potential use of any specific information that may constitute your Intellectual Property or the Intellectual Property of your third-party suppliers, you must discuss the matter with Cimetrix before the information is disclosed to Cimetrix and reach a mutual written understanding with Cimetrix of any alternative procedures or requirements that will be used. Otherwise, the provisions of this Section 4 of these Service Terms will apply to all information provided to Cimetrix.
   
   

General Provisions

The following General Provisions apply to all users and recipients of Cimetrix products and Services: 

1. Relationship of the parties. You and Cimetrix are independent parties and nothing herein will make the parties joint ventures, co-owners, or participants in any joint or common undertaking.
2. Successors and assigns. This CLA-S shall be binding upon, and inure to the benefit of, the parties and their permitted assigns, if any.
3. Authorized sublicensors. Notwithstanding anything to the contrary in this CLA-S, if you obtain your Cimetrix products or Services through a Cimetrix Authorized Sublicensor, this CLA-S will constitute a contract between you and the Authorized Sublicensor, not Cimetrix. In that case, all references in this CLA-S to “Cimetrix” as the contracting party will mean and refer to the Authorized Sublicensor, instead of Cimetrix, but Cimetrix will be a third-party beneficiary of the contract with the right to enforce it. Not all Cimetrix authorized software providers, systems integrators, or distributors are Authorized Sublicensors, however, so your contract will still be with Cimetrix unless you obtain your Cimetrix products and Services through an Authorized Sublicensor.
4. Invoices and payment. Unless you and Cimetrix agree to different payment terms in writing, or except as otherwise provided in this CLA-S, all fees and other amounts charged by Cimetrix under this CLA-S will be due within thirty (30) days of the date of the Cimetrix invoice. You agree to pay all amounts to Cimetrix in U.S. Dollars (unless Cimetrix agrees in writing to accept payment in a different currency), without offsets or deductions of any kind, except as expressly provided in this CLA-S. Notwithstanding the foregoing, Cimetrix shall have the right to require you to pay for items and Services in advance if you fall out of good financial standing with Cimetrix. All amounts not received by Cimetrix by the due date shall accrue interest at the rate of one and a half percent (1.5%) per month or the maximum legal rate allowed by law, whichever is less. Within thirty (30) days from the date of any invoice issued by Cimetrix, you agree to give Cimetrix written notice of any dispute that you have about the invoice. If you do not do so, the invoice shall be deemed correct in all respects. Cimetrix's prices exclude all federal, state, local, and foreign sales, use, value-added, alternative, add-on minimum, transfer, property, franchise, license, excise, import, export, registration, and other taxes, tariffs, duties, and fees.
5. Responsibility for employees, contractors, and others. You are fully responsible for the actions of each of your officers, directors, employees, contractors, dealers, agents, and Affiliates with respect to all Cimetrix Software, and Documentation, whether or not such Person was or is acting with the scope of his or her employment, appointment, agency, or contract. 
6. Proper books and records. You agree to keep all proper books and records relating to the Cimetrix Software, the Documentation, the Services, and your performance of this CLA-S. You also agree to provide Cimetrix, for no additional consideration, all assignments that are required by this CLA-S.
7. Notices.  All notices, authorizations, and requests in connection with this CLA-S shall be deemed given (a) five days after being deposited in the U.S. mail, postage prepaid, certified or registered, return-receipt requested; or (b) one day after being sent by overnight courier, charges prepaid, with a confirming fax; provided they are addressed to the party’s last-known address or to such other address as the party to receive the notice or request so designates by written notice.
8. Construction of agreement.  TThe headings throughout this CLA-S are for reference purposes only, and the words contained therein shall in no way be held to explain, modify, or aid in the interpretation, construction or meaning of the provisions of this CLA-S. This CLA-S shall be construed as though both parties had drafted it or had equal opportunity to do so.  
9. No third party beneficiaries.  The provisions of the CLA-S are solely for the benefit of the parties and their successors and permitted assigns and not for any other Person, and the provisions of the Contracts (Rights of Third Parties) Act of Singapore (Cap 53B) and any other equivalent legislation otherwise entitling a third person to enforce any right or remedy under the CLA-S are hereby excluded; provided that nothing herein is intended to prevent Cimetrix from relying on and/or enforcing the terms and conditions of the CLA-S in relation to a contract between you and a Cimetrix Authorized Sublicensor (if you obtain your Cimetrix products or Services through such Authorized Sublicensor).
10. Compliance with laws. You agree to comply with all applicable Laws with respect to your possession, use, distribution, and protection of Cimetrix Software and Documentation, your exercise of any licenses or other rights pursuant to this CLA-S, and your receipt of any Cimetrix Services. Cimetrix shall have the right to intervene in any action or proceeding involving any Cimetrix Software or Documentation.
11. Waiver. No failure by any party to insist upon the strict performance of any covenant, duty, term, or condition of this CLA-S, or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach or of any other covenant, duty, term, or condition. Either party may, but shall be under no obligation to, waive any of its rights or any conditions to its obligations hereunder, or any duty, obligation, or covenant of the other party. No waiver shall be effective unless it is stated in writing and signed by a duly authorized representative of the waiving party. No waiver shall affect or alter the remainder of this CLA-S, but each and every other covenant, duty, term, and condition hereof shall continue in full force and effect with respect to any other existing or subsequently occurring breach.
12. Cimetrix changes. Cimetrix reserves the right to change this CLA-S, or any of its terms and conditions, at any time in its sole discretion, provided that any such changes shall only apply to existing customers thirty (30) days after Cimetrix announces that changes have been made to the CLA-S. It is your responsibility to review the CLA-S and become familiar with its provisions and any changes to them.
13. Reservation of rights.  The Cimetrix Software is licensed to you, not sold. All ownership of, and all associated right, title, and interest in and to, the Cimetrix Software and Documentation and the proprietary, confidential, and trade secret information, techniques, and technology embodied or contained in them shall be retained by Cimetrix and/or its licensors. You also agree that Cimetrix will own all Copies of Cimetrix Software and Documentation, whether you, Cimetrix, or any other Person makes the Copies. This CLA-S only grants you a limited right to use the Cimetrix Software and Documentation as expressly provided in this CLA-S. This CLA-S does not grant you any rights to Cimetrix Source Code or to patents, copyrights, trade secrets, trademarks, or any other rights with respect to the Cimetrix Software, Documentation, or Services, except as expressly provided herein. Cimetrix and its licensors reserve all Intellectual Property and other rights not expressly granted to you in this CLA-S. Cimetrix shall have the exclusive right, in its sole and absolute discretion, to enforce the Intellectual Property rights associated with the Cimetrix Software, Documentation, and Services.
14. No reverse engineering. You agree that neither you nor any Person that is given access to Cimetrix Software by you will decompile, disassemble, reverse engineer, or modify the Cimetrix Software, except with the express written permission of Cimetrix and strictly in accordance with such permission, or except as authorized by law notwithstanding this provision, but only after contacting Cimetrix to try to resolve any compatibility or use issues. You agree not to make or enable any Person to make any unauthorized copies of Cimetrix Software or to break or make any unauthorized Copies of any Cimetrix license code.
15. Confidential Information. You agree to keep any and all Confidential Information of Cimetrix that you receive and that you uncover strictly confidential, to use the Confidential Information solely for the proper performance of this CLA-S, and to notify Cimetrix of any unauthorized disclosure or use of Confidential Information that you suspect or that comes to your attention. Cimetrix agrees to keep any and all Confidential Information that you provide to Cimetrix strictly confidential, to use the Confidential Information solely for the proper performance of this CLA-S, and to notify you of any unauthorized disclosure or use of Confidential Information that comes to Cimetrix’s attention. Notwithstanding the foregoing, the obligations of this section shall not apply to any information that the receiving party (“Recipient”) can prove, with contemporaneous written records: (a) was at the time of disclosure already in the public domain or becomes available to the public through no breach by Recipient of this CLA-S, except that Confidential Information shall not be deemed to be in the public domain merely because part of the Confidential Information is embodied in general disclosures or because individual features, components, or combinations thereof are now or become known to the public; (b) is received by Recipient from a third party lawfully permitted to disclose such information to Recipient; (c) was already in Recipient's lawful possession without any breach of any confidentiality provision, (d) is independently developed by Recipient without the benefit of any of the Confidential Information; (e) is approved for release by written agreement of other party; or (f) is required to be disclosed to comply with legal requirements or a judicial or official order or decree, provided that (i) Recipient first gives at least ten (10) days advance written notice to the other party of the required disclosure, if legally permitted, (ii) limits the disclosure to what is legally required, and (iii) if notice cannot legally be provided to other party, makes reasonable efforts to secure confidential treatment of the Confidential Information prior to its disclosure. If you have signed a confidentiality or non-disclosure agreement (“NDA”) with Cimetrix, this CLA-S does not supersede or replace the NDA, which will continue to govern disclosures made under that agreement, except as provided in Section 4 of the Service Terms. If there is any conflict between the NDA and this CLA-S as it relates to Cimetrix Confidential Information, this CLA-S will control.
16. Export Restrictions and Economic Sanctions. Cimetrix Software and Documentation may be subject to export control and economic sanctions laws and regulations, including, without limitation, the United States Export Administration Regulations (“EAR”) and the laws and regulations of other jurisdictions (“Export Control Laws”). By accessing, installing, distributing, or otherwise using Cimetrix Software or Documentation, you: (a) acknowledge and agree that the existence and validity of this CLA-S between you and Cimetrix and Cimetrix’s obligations under the CLA-S are subject to compliance with all applicable Export Control Laws, including, without limitation, the EAR; (b) represent and warrant to Cimetrix that you are not restricted from receiving Cimetrix Software or Documentation under Export Control Laws; (c) agree to comply with all applicable Export Control Laws, including, without limitation, by fulfilling any requirements (including obtaining any necessary export license or other governmental approval) before exporting, re-exporting, or transferring any Cimetrix Software or Documentation, any part thereof, or any process or service that is the direct product of the Cimetrix Software; (d) agree, without limiting the generality of the foregoing, that you will not, and will not permit any third parties to, directly or indirectly, export, re-export, or transfer any Cimetrix Software or Documentation, any part thereof, or any process or service that is the direct product of the Cimetrix Software or Documentation, to any jurisdiction or country to which, or to any party to whom, the export, re-export, or transfer of Cimetrix Software or Documentation is prohibited by any Export Control Laws.
17. U.S. Government Restricted Rights. Cimetrix Software and Documentation is commercial computer software developed at private expense, is published and copyrighted, and is provided with Restricted Rights. Use, duplication, and disclosure by civilian agencies of the U.S. Government shall be governed by the terms and restrictions of this CLA-S and FAR § 52.227-14 Alternative III(g)(3) (June 1987), as applicable, subject to FAR § 52.227-19(c) (June 1987). Use, duplication, and disclosure by agencies of the U.S. Department of Defense shall be governed by the terms and restrictions of this CLA-S, as provided in DFARS § 227.7202 (10/14/98). The “contractor” and “licensor”, as referred to in the U.S. Government FAR and DFARS regulations, is Cimetrix Incorporated. Additional information about Cimetrix, including its address, is available at www.cimetrix.com.
18. Third-Party Software. Some Cimetrix Software contains or uses third-party software or other materials protected by copyright laws, international copyright treaties, and other intellectual property laws and treaties. The third-party software and materials and their associated terms and conditions of use are addressed in a document entitled  Third Party Acknowledgements and Terms which is hereby incorporated into these General Provisions and which Cimetrix may modify from time to time in its sole discretion
19. Independent developments. Each party will remain free to develop any and all products and Intellectual Property as that party in its sole discretion chooses, provided that (a) the party does so independent of the other party’s disclosures and Confidential Information, and (b) the developing party maintains written, contemporaneous records that establish the independence of such developments.
20. Injunctive Relief. If either party breaches any of its obligations regarding the use or confidentiality of the other party’s Confidential Information or Intellectual Property, such other party shall be entitled, without limitation, to equitable relief to protect its interests, including preliminary and permanent injunctive relief, without the necessity of proving irreparable harm or damages or posting a bond or other security.
21. Proprietary notices. You agree not to remove any patent, copyright, trademark, proprietary rights, disclaimer, or product warning included on or embedded in any part of Cimetrix Software or Documentation, or any Copy that you make of any Cimetrix Software or Documentation. If you are a Solution Provider, for any Derivative Product containing any Solution Provider Modification and distributed in Object Code to an End User, you agree not to identify Cimetrix as a source of any portion of such Derivative Product and shall remove all references to Cimetrix from such Derivative Product, including any reference in any proprietary notice, disclaimer, or product warning. This removal requirement will not eliminate or diminish your obligations under the other applicable provisions of this CLA-S. The proprietary notices referenced in and required in CLA-S shall be loaded into computer memory for use, display, or reproduction, shall be embedded in program Source Code and Object Code and in the video screen display, shall be placed on any physical medium embodying the Copy of the Cimetrix Software, Documentation, or Derivative Product, if practicable, and shall be included in any associated End User manuals and other End User documentation.
22. Rights and Remedies. No right or remedy herein conferred upon or reserved to Cimetrix is exclusive of any other right or remedy, at law or in equity, but each such remedy shall be cumulative of every other right or remedy now or hereafter existing.
23. Indemnity. Subject to all of the provisions of this CLA-S, including the limitation of liability provisions, Cimetrix agrees to defend and indemnify you and your officers, directors, employees, and agents (“Your Indemnitees”) from and against, or settle, any third-party claims that (1) the Cimetrix Software, Documentation, or deliverable infringes any patents issued before release of the Cimetrix Software or Documentation or delivery of the deliverable or any copyrights or misappropriates any trade secrets; or (2) a Solution Provider’s authorized use of any Cimetrix marks infringes any mark; and to pay those damages and costs, including without limitation reasonable attorneys' fees, finally awarded against you or Your Indemnitees or amounts agreed to in a monetary settlement, that are specifically attributable to such claims. If your authorized use of the Cimetrix Software, Documentation, or deliverable, and for Solution Providers your authorized use or distribution of the Cimetrix Software, Documentation, or deliverable is, or in Cimetrix's sole opinion is likely to be, enjoined by a court of competent jurisdiction due to such infringement or misappropriation, Cimetrix in its sole discretion will (a) procure the right for you to continue such authorized use or distribution; (b) modify the Cimetrix Software, Documentation, or deliverable to eliminate the infringement or misappropriation, while maintaining substantially equivalent functionality and performance; or (c) terminate this CLA-S. This provision is your sole and exclusive remedy for any claims of infringement, misappropriation, or other violation of any third-party Intellectual Property rights of any kind. Cimetrix will have no responsibility for, and you agree to defend, indemnify, and hold harmless Cimetrix and its officers, directors, employees, and agents (the “Cimetrix Indemnitees”) from and against, or settle, any third-party claims arising from (1) your product(s); (2) your Modification of the Cimetrix Software, Documentation, or deliverable; (3) the combination of the Cimetrix Software, Documentation, or deliverable with any third-party technology or material, if the claim(s) would have been avoided but for such combination; (4) your failure to employ materials or instructions provided by Cimetrix that would have eliminated the infringement, misappropriation, or other violation; (5) the information provided to Cimetrix by you or your third-party suppliers, and (5) your breach of this CLA-S, and you agree to pay those damages and costs, including reasonable attorneys' fees, finally awarded against Cimetrix or the Cimetrix Indemnitees, or amounts agreed to in a monetary settlement, that are specifically attributable to such claims. The party seeking indemnity shall provide timely notice of the claim(s) to the indemnifying party, provide all assistance reasonably requested by the indemnifying party, and allow the indemnifying party to control the defense and settlement of the claim(s), except that no settlement shall be entered without the indemnified party’s written consent, which shall not be unreasonably withheld or delayed. 
24. Disclaimers. CIMETRIX MAKES NO WARRANTY, PROMISE, OR REPRESENTATION NOT EXPRESSLY SET FORTH IN THIS CLA-S. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR THE CIMETRIX WARRANTIES EXPRESSLY SET FORTH IN THIS CLA-S, CIMETRIX PROVIDES THE CIMETRIX SOFTWARE, DOCUMENTATION, SERVICES, AND DELIVERABLES “AS IS” AND WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, AND DISCLAIMS ANY AND ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY OF CIMETRIX, AND EVEN IF CIMETRIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING THE IMPLIED WARRANTIES (IF ANY) OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, CONDITION OF TITLE, QUIET ENJOYMENT, OR QUIET POSSESSION, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, OR OF LACK OF NEGLIGENCE. THE LIMITATIONS, DISCLAIMERS, AND EXCLUSIONS CONTAINED IN THIS CLA-S SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. NO CIMETRIX AGENT, EMPLOYEE, OR OTHER REPRESENTATIVE IS AUTHORIZED TO MODIFY OR ADD TO THE LIMITED WARRANTIES PROVIDED IN THIS CLA-S IN ANY MANNER. THE TERMS OF ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW IS LIMITED TO NINETY (90) DAYS OR TO THE SHORTEST PERIOD PERMITTED BY LAW.
25. Limitation of liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS CLA-S, IN NO EVENT WILL CIMETRIX OR ITS LICENSORS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, INDIRECT, OR SIMILAR DAMAGES, REGARDLESS OF THE FORM OF PROCEEDING OR THE THEORY OF LIABILITY, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY OF CIMETRIX, AND EVEN IF CIMETRIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION MEANS, FOR EXAMPLE, THAT NEITHER CIMETRIX NOR ITS LICENSORS ARE RESPONSIBLE OR LIABLE FOR DAMAGES OR COSTS INCURRED BY YOU OR ANY OTHER PERSON AS A RESULT OF LOSS OF TIME, DATA, INCOME, PROFITS, OR USE OF THE CIMETRIX SOFTWARE, DOCUMENTATION, AND SERVICES, OR FOR DAMAGES TO, CAUSED BY, OR AS A RESULT OF DAMAGE TO, ANY COMPUTING DEVICE OR OTHER EQUIPMENT OR PROPERTY CONTROLLED BY THE CIMETRIX SOFTWARE. SOME STATES, PROVINCES, AND COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE PRECEDING LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN ADDITION, NEITHER CIMETRIX NOR ITS LICENSORS ARE RESPONSIBLE OR LIABLE FOR DAMAGES OR COSTS INCURRED IN CONNECTION WITH OBTAINING SUBSTITUTE SOFTWARE, INCONVENIENCE, OR SIMILAR DAMAGES OR COSTS. NOTWITHSTANDING ANYTHING CONTAINED IN THIS CLA-S TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE LIABILITY OR ANY OTHER OBLIGATION OF CIMETRIX TO YOU OR TO ANY OTHER PERSON EXCEED THE PRICE PAID FOR THE LICENSE TO USE THE CIMETRIX SOFTWARE AND DOCUMENTATION SPECIFICALLY AT ISSUE OR FOR THE FEES YOU PAID TO CIMETRIX FOR THE SPECIFIC SERVICES AT ISSUE, REGARDLESS OF THE FORM OF THE CLAIM OR THE THEORY OF LIABILITY. ONCE CIMETRIX REACHES THAT LIMIT, IT MAY OFFER TO CONTINUE TO PERFORM THE OBLIGATION OR OTHERWISE DISCHARGE THE LIABILITY AT YOUR SOLE EXPENSE.
26. Termination. In addition to any other rights of termination provided in this CLA-S, a party may terminate this CLA-S by notice to the other party: (a) if such other party breaches any of the terms or conditions of this CLA-S or any change order; (b) if such other party generally fails to pay its debts and obligations as they mature, admits in writing its inability to do so, or makes an assignment for the benefit of creditors; and/or (c) if a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now or hereafter may exist, is filed by such other party, or if such a petition is filed against such other party by any third Person, or an application for a receiver is made as to such party by any other Person, and such petition or application is not resolved favorably with respect to such other party within ninety (90) days.
27. Effect of Termination. On termination of this CLA-S for any reason, all amounts due and owing to Cimetrix shall be accelerated and become immediately due and payable, even if longer or different terms were previously agreed by the parties. Except as otherwise expressly agreed by the parties, or as otherwise expressly provided in this CLA-S, all licenses and/or rights granted by one party to the other pursuant to this CLA-S shall terminate. The termination of this CLA-S shall not affect or impair the right of either party to recover damages or any other remedies occasioned by any breaches of the other party of this CLA-S. The following provisions of this CLA-S will survive any termination, for any reason, of this CLA-S in whole or in part and shall continue to apply after any such termination: Definitions; End User License Terms sections 2, 9 and 12; Solution Provider Terms sections 2, 3, 4, 8, 10, 11 and 12; Service Terms sections 2, 3, and 4; and General Provisions sections 1 through 11 and 13 through 30.
28. Return of Materials. On termination of this CLA-S for any reason, each party shall promptly return to the other party all of such other party’s property, materials, and Confidential Information provided pursuant to this CLA-S, except for any Confidential Information or other materials as to which the receiving party has license or other rights under this CLA-S or otherwise, unless the parties otherwise agree in writing, or except as otherwise expressly provided in this CLA-S. Instead of returning Copies of Confidential Information, the receiving party may destroy them and send written certification thereof to the disclosing party. Notwithstanding these requirements, the receiving party may retain such Copies of the other party's Confidential Information as are required to comply with applicable laws or as necessary to enforce the receiving party's rights under this CLA-S, subject to section 15 above.
29. Severability. If any provision in this CLA-S is determined by a court of competent jurisdiction to be void, invalid, unenforceable, or illegal, that provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary to eliminate its violability, invalidity, unenforceability or illegality, and the other provisions of this CLA-S shall remain unaffected and continue in full force and effect.  
30. Governing Law and Attorneys’ Fees. This CLA-S shall be governed by and interpreted in accordance with the laws of the State of Utah, USA, excluding its conflicts of law rules, unless you are located solely in China, Taiwan, or Hong Kong, in which case the laws of Singapore, excluding its conflicts of law rules, will govern this CLA-S (which choice the parties respectively agree and represent is made in good faith, legal and is not, to the best of their knowledge or belief, contrary to public policy). You agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety and does not apply to this CLA-S or to the Cimetrix Software, Documentation, or Services. Notwithstanding the foregoing, nothing in this CLA-S will diminish any rights you may have under existing consumer protection legislation or other applicable laws in your jurisdiction that may not be waived by contract. If any action, suit, or arbitration, as applicable, is instituted with respect to this CLA-S, the prevailing party shall be entitled to recover its costs, expenses, and reasonable attorneys’ fees, including but not limited to those incurred in any and all appeals. Any and all disputes arising out of or relating to this CLA-S (“Disputes”) shall be decided as follows: (a) If you reside in the United States, any and all Disputes shall be brought and decided exclusively in the federal or state courts sitting in Salt Lake County, State of Utah, USA, and the parties irrevocably consent to the exclusive jurisdiction and venue of such courts; (b) if you reside solely outside the United States and are not located solely in China, Taiwan, or Hong Kong, any and all Disputes shall be finally decided by arbitration under the then-current Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with those rules, and any such arbitration shall take place in Salt Lake City, Utah, USA; or (c) if you reside solely outside the United States and are located solely in China, Taiwan, or Hong Kong, any and all Disputes shall be finally decided by arbitration under the then-current commercial arbitration rules of the Singapore International Arbitration Centre (the “SIA Centre”) by arbitrator(s) appointed in accordance with such rules, and any such arbitration shall take place in Singapore at the SIA Center before a tribunal of one arbitrator, if the claim amounts in the arbitration demand(s) total US$1 million or less, and three arbitrators, if the amounts in the arbitration demand(s) total more than US$1 million. In such event, each party shall nominate one arbitrator, and the two arbitrators so chosen shall together select the third arbitrator. Any and all arbitration proceedings under this CLA-S shall be conducted in the English language. THE PARTIES HEREBY AGREE THAT NEITHER WILL REQUEST A JURY FOR ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS CLA-S AND EXPRESSLY WAIVE ANY AND ALL SUCH RIGHTS TO A JURY
31. Entire Agreement. This CLA-S sets forth the entire understanding and agreement between you and Cimetrix and supersedes all prior communications, proposals, representations, or agreements, whether written or oral, express or implied, with respect to the Cimetrix Software and Documentation or any other subject matter covered by this CLA-S, except as provided in section 15 above relating to NDAs. Except as expressly set forth in this CLA-S, this CLA-S may not be modified or terminated orally, and no modification or waiver shall be valid unless it is in writing, signed by the party against whom the same is sought to be enforced. NO DISTRIBUTOR, DEALER, RETAILER, SALESPERSON, OR SIMILAR PERSON IS AUTHORIZED TO MODIFY THIS CLA-S OR TO MAKE ANY WARRANTY, REPRESENTATION, OR PROMISE WITH RESPECT TO CIMETRIX SOFTWARE, DOCUMENTATION, OR SERVICES THAT IS DIFFERENT.