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Software Licence Agreement

This Agreement is made between GE Sensing (“Licensor”) and the purchaser (“Licensee”).
Licensor and Licensee hereby agree as follows:

1. DEFINITIONS

1.1 “Documentation” shall mean any user manuals and other printed materials delivered to Licensee by Licensor in conjunction with the Programs.

1.2 “Intellectual Property Rights” shall mean patent rights (including patent applications and disclosures), copyright rights, trademark/service mark rights, trade dress rights, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.

1.3 “Programs” shall mean those computer software programs identified in the attached Exhibit A, in object or executable code form, including all modifications, enhancements, and revisions thereto that are either (i) expressly authorized by Licensor in writing, or (ii) made by Licensor pursuant to a Software Support Agreement between the parties, if any. 

2. LICENSE.

2.1 License Grant.  Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a nontransferable, nonexclusive license to use the Programs (in object code form) and Documentation, provided that this license is expressly limited to use at the Site, the type and number of computers as set forth on Exhibit A.

2.2 License Restrictions

2.2.1 Licensee has no right to transfer, assign, pledge, sublicense or otherwise distribute the Programs or Documentation to any third party.

2.2.2 Licensee agrees that it has no right:  (i) to modify, enhance, revise, disassemble, decompile or reverse engineer the Programs or to permit any third party to do so; or (ii) to copy the Programs, except for making a single copy of the Programs for archival purposes.

2.3 Limited Rights.  Licensee’s rights in the Programs and Documentation shall be limited to those expressly granted in this Section 2.  Licensor reserves all rights and licenses in and to the Programs and Documentation not expressly granted to Licensee under this Agreement.

3. DELIVERY

3.1 Delivery.  All Programs shall be considered delivered upon receipt by Licensee.  Licensee’s rights to use the Programs pursuant to this Agreement shall begin at the time of delivery.

4. OWNERSHIP

Licensor and its suppliers own all worldwide right, title, and interest in and to the Programs and Documentation and all worldwide Intellectual Property Rights therein, whether or not the Licensor combines the Programs or Documentation with any other product.  Licensee shall not delete or in any manner alter the copyright, trademark, and other proprietary rights notices of Licensor and its suppliers appearing on the Programs and Documentation as delivered to Licensee.

5. PAYMENT

5.1 Payment Terms.  Payment of all license fees and other fees shall be due and payable within thirty (30) days of the date of Licensor’s invoice(s) thereof, unless otherwise agreed in writing.  Licensee shall pay all amounts due under this Agreement in U.S. currency, free of any and all currency controls or other restrictions.  All past due amounts shall incur interest at a rate equal to the lower of 1.5% per month or the highest rate permitted by law, beginning as of forty (40) days after the applicable due date.

5.2 Additional Charges. All amounts specified herein are net amounts to be received by Licensor and are exclusive of, and Licensee shall be responsible for and shall pay, any and all taxes, duties, and charges incurred in the performance of this Agreement wherever incurred, including, but not limited to, sales, use, and value added taxes, customs duties, tariffs, or other similar taxes, assessments, or excises, wire transfer fees for each party, withholding taxes, duties and charges imposed by Federal, State or local governmental authorities of any country, however designated or levied (but excluding U.S. corporate income taxes of Licensor), including government charges assessed by any jurisdiction on telecommunication, information, and data processing services, whether payable directly by Licensee or indirectly through Licensor in compliance with applicable law; all of which shall be Licensee’s responsibility and are not subject to set-off, reduction, or deduction for any reason whatsoever, including any currency control restrictions, expenses, costs, taxes, duties, assessments, or liabilities incurred by Licensee or imposed on Licensor as a result of this Agreement. Licensee agrees to provide Licensor with official tax receipts and copies of all governmental filings relating to amounts withheld from payments to Licensor mandated by applicable law. Without limiting the foregoing, Licensee shall indemnify and hold harmless Licensor from and against all claims, actions, judgments, liabilities, expenses, and costs (including penalties and interest levied) arising from or related to Licensee’s failure to comply with this Section 5.2.  If Licensee is prohibited by law from making payments hereunder free of such deductions or withholdings, Licensee shall immediately notify Licensor and pay Licensor any additional sum(s) equal to such deduction or withholding.

6. WARRANTIES

6.1 Limited Program Warranty.  Licensor warrants that, for a period of ninety (90) days after delivery, the Programs shall function substantially in accordance with the Documentation.  As Licensee’s sole and exclusive remedy and Licensor’s entire liability for any breach of the foregoing warranty, Licensor shall, at its sole option:  (i) repair or replace, at no additional charge to Licensee, any Programs which fail to meet this limited warranty; or (ii) if, despite using its reasonable efforts, Licensor is unable to repair or replace the Programs, refund to Licensee the applicable license fees paid for the nonconforming Program after Licensee returns the nonconforming Program to Licensor, less a reasonable rental charge for the period during which Licensee had use of the Program, using straight-line depreciation assuming a useful life of the Program of three (3) years.  The limited warranty set forth herein shall automatically become null and void if a party other than Licensor modifies the Programs in any way.

6.2 Disclaimer Of Warranties.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, LICENSOR MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE PROGRAMS OR DOCUMENTATION PROVIDED BY LICENSOR TO LICENSEE HEREUNDER, EITHER EXPRESS OR IMPLIED.  LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  LICENSOR DOES NOT WARRANT THAT THE PROGRAMS SHALL BE ERROR-FREE OR THAT THEY SHALL FUNCTION WITHOUT INTERRUPTION. 

7. LIMITATIONS OF LIABILITY

7.1 Exclusion of Damages.  REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS, LIABILITY OR DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOSS OF USE, DATA, BUSINESS OR PROFITS) WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, PRODUCT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, LIABILITY OR DAMAGES.

7.2 Total Liability.  IN NO EVENT SHALL LICENSOR’S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, PRODUCT LIABILITY OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF LICENSE FEES PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT.

7.3 Basis of the Bargain.  Licensee agrees that the disclaimers of warranty and limitations of liability set forth in Sections 6 and 7 shall apply upon delivery of the Programs to Licensee.  Licensee acknowledges that Licensor has set its prices and entered into this Agreement in reliance upon such disclaimers of warranty and the limitations of liability and that the same forms an essential basis of the bargain between the parties.

8. INDEMNIFICATION

8.1 Licensee shall indemnify, defend, and hold Licensor harmless from and against all claims, liabilities, actions, suits, demands, fines, penalties and all costs and expenses incurred by Licensee in connection therewith (including reasonable attorneys fees) arising out of or related to (a) Licensee’s use of the Programs in combination with software or hardware that is not specifically approved by Licensor in writing; (b) Licensor’s compliance with designs or specifications provided by Licensee; (c) any modification, enhancement or revision made to the Programs by anyone other than Licensor; or (d) Licensee’s failure to use any modification, enhancement or revision provided to Licensee by Licensor for the purpose of avoiding a claim of infringement.

9. CONFIDENTIAL INFORMATION

9.1 Definition.  “Confidential Information”, as used in this Agreement means the Programs, trade secrets and all other information furnished by one party to this Agreement to the other hereunder, in whatever form or format, and whether they are technical, engineering, operational or economic nature that is treated by the disclosing party as confidential and is identified as such at the time of disclosure.  The party receiving Confidential Information shall not use or disclose any Confidential Information disclosed to it except as expressly permitted herein and shall use all reasonable measure to maintain the confidence of all such Confidential Information, which measures shall in no event be less than the measures that it routinely takes to protect its own Confidential Information of similar importance.  The obligation not to use or disclose Confidential Information shall continue in full force and effect, notwithstanding the expiration or termination of this Agreement for any reason, for a period of three (3) years from the date hereof; provided that the obligations of the parties with respect to trade secrets shall continue for the maximum period allowable under applicable law.

9.2 Exceptions.  Confidential Information shall not include information if recipient can prove with documentation that: (a) prior to disclosure hereunder it was already in the receiving party’s possession without any obligation of confidentiality or non-use owed to the disclosing party; (b) prior to or subsequent to disclosure hereunder it was obtained by the receiving party from a third party; (c) prior to the disclosure by the disclosing party it was in the public domain; (d) subsequent to disclosure it enters the public domain through no action in violation of this Agreement by the receiving party; and (e) it was independently developed by the receiving party without the benefit of the discloser’s Confidential Information.

9.3 Legally Required Disclosure.  If the receiving party is required by law, governmental regulation, subpoena or court order to disclose any of the Confidential Information, the receiving party shall endeavor to give prompt, prior written notice of the proposed disclosure and the reason for such disclosure to the disclosing party.  The receiving party thereafter shall reasonably cooperate with all lawful requests of the disclosing party to prevent or limit the disclosure required by law and shall only disclose such Confidential Information as its own legal counsel advises it is required to be disclosed by the terms of the law, government regulation, subpoena or court order.  The receiving party shall not be in breach of this Article 9 by disclosing Confidential Information in compliance with the provisions of this Section 9.3.

9.4 Requisite Powers.  Each disclosing party represents and warrants to the receiving party it has all requisite powers, rights and authorities lawful to disclose its Confidential Information to the other.

10. TERM AND TERMINATION

10.1 Term.  This Agreement shall begin on the Effective Date and shall remain in effect thereafter unless terminated in accordance with the terms of this Agreement.  The term of this Agreement with respect each individual Program license granted by Licensor hereunder shall begin upon the date of receipt by Licensee of the applicable Program and shall remain in effect thereafter unless terminated earlier by either party in accordance with the terms of this Agreement.

10.2 Termination for Breach.  Either party may terminate this Agreement with respect to one or all of the Programs in the event of a breach or default by the other party to this Agreement; provided however, no such termination shall occur until the non?breaching/defaulting party shall have given written notice of the breach or default to the breaching/defaulting party and such breach or default shall not have been cured within five (5) days in the event of a monetary breach or default and thirty (30) days in the event of a non?monetary breach or default.

10.3 Automatic Termination.  This Agreement shall terminate automatically if:  (i) either party becomes the subject of any voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) either party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.

10.4 Effect of Termination.  Upon any termination of this Agreement or of any individual Program license, Licensee shall promptly return to Licensor or destroy the applicable Programs and Documentation and all copies and portions thereof, in all forms and types of media related thereto, and provide Licensor with an written certification signed by a duly authorized representative of Licensee, certifying to Licensee’s compliance with the foregoing.

10.5 Nonexclusive Remedy.  Termination of this Agreement by either party shall be a nonexclusive remedy for breach and shall be without prejudice to any other right or remedy of such party.

10.6 Survival.  The rights and obligations of the parties contained in Sections 4, 5, 6.2, 7, 8, 9, 11 and 12 shall survive the termination of this Agreement or of any individual Program license.

11. DISPUTE RESOLUTION

11.1 Governing Law.  The parties invoke the laws of the State of New York, USA, regarding the protection of their rights and enforcement of their obligations hereunder and they mutually stipulate and agree that this Agreement is in all respects (including but not limited to, all matters of interpretation, validity, performance and the consequences of breach and termination) to be exclusively construed, governed and enforced in accordance with the internal laws of the State of New York, USA, excluding all conflict of laws rules as from time to time amended and in effect. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement. Except as provided in Section 11.2 (Arbitration) and Section 11.3 (Injunctive Relief), any action related to or arising out of this Agreement shall be venued solely in the Southern District of New York and the parties irrevocably commit to the jurisdiction of said courts. 

11.2 Arbitration. Except for claims seeking injunctive relief for which court relief may be sought, Licensor or Licensee, as the case shall be, shall arbitrate any dispute resulting from or arising as a result of this Agreement. Any such arbitration shall be in accordance with the commercial rules of the American Arbitration Association (“AAA”).  Any such arbitration shall be held in the Southern District of New York and directed by the AAA. Notwithstanding the foregoing or the then-current specified commercial rules of the AAA, the following shall apply with respect to the arbitration proceeding: (a) the arbitration proceedings shall be conducted by one (1) arbitrator selected by the parties, provided, if the parties fail to make such designation within five (5) days after receipt by the AAA of the demand for arbitration, the AAA shall make the appointment in its sole discretion (provided such arbitrator shall have experience and knowledge of software and international software distribution transactions); and (b) the existence, subject, evidence, proceedings and rulings resulting from the arbitration proceedings shall be deemed Confidential Information, and shall not be disclosed by either party, their representatives, or the arbitrator except: (i) to the professional advisors of each of the parties; (ii) in connection with a public offering of securities of either of the parties; (iii) as ordered by any court of competent jurisdiction; or (iv) as required to comply with any applicable governmental statute or regulation.

11.3 Injunctive Relief. In the event Licensee is in breach, or threatens to breach any part of this Agreement, Licensee acknowledges and agrees that Licensor will be greatly damaged, and such breach(es) will be irreparable and damages associated therewith will be difficult to quantify; therefore, Licensor may apply to any court of competent jurisdiction, who, notwithstanding the provisions of Section 11.1 (Governing Law), will apply the laws of its own jurisdiction in determining whether relief shall be granted to Licensor, for injunctive or other equitable relief to restrain such breach or threat of breach, without impairing, invalidating, negating or voiding Licensor’s rights to relief either at law or in equity. In the event that any or all of the covenants hereunder are determined by the court of competent jurisdiction to be invalid or unenforceable, by reason that the breadth of restrictions are too great, or for any other reason, these covenants shall be modified and interpreted to extend over the maximum geographic area, period of time, range of activities or other restrictions to which they may be enforceable.

12. GENERAL

12.1 Assignment.  Licensee may not assign all or a portion of this Agreement without Licensor’s prior written consent.  Any attempted assignment without Licensor’s consent shall be void and of no effect. Licensor may assign this Agreement to any person or entity, including but not limited to, any parent, subsidiary or affiliate of Licensor or any assignee of the programs, without obtaining the consent of Licensee. 

12.2 Compliance with Laws.  Each party shall comply in all material respects with all laws, rules, and regulations of the United States and other countries that may be applicable to the Programs or to each party’s activities under this Agreement.

12.3 Government Approval.  If the laws or regulations of any country require this Agreement to be approved by or registered with any government agency, Licensee shall be solely responsible for such obligations.  Licensor shall have the right to withhold delivery of the Programs until it has received satisfactory evidence that any required approvals or registrations have been obtained.

12.4 Export Control.  Licensee acknowledges that the distribution of the Programs and its documentation, and any technical data related thereto (collectively “Licensor Technology”) is subject to U.S. export control laws and regulations, including but not limited to the U.S. Export Administration Act of 1979, as amended, and the regulations promulgated thereunder.  Licensee shall not export or re-export, directly or indirectly, any Licensor Technology, to any destination or to any third party or for any uses that are restricted by U.S. export control laws and regulations, including without limitation to any party that is involved in sensitive or unguarded nuclear activities, or activities related to chemical or biological weapons or missiles, unless Licensee first obtains the required authorizations from the U.S. Department of Commerce or other appropriate governmental agencies.

12.5 Severability.  If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision shall be enforced to the maximum extent permissible and the other provisions of this Agreement shall remain in full force and effect.

12.6 Waiver.  The failure by either party to enforce any provision of this Agreement shall not constitute a waiver of future enforcement of that or any other provision.

12.7 Notices.  All notices required or permitted under this Agreement shall be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery service, or by certified mail, and in each instance shall be deemed given upon receipt.  All communications shall be sent to the addresses set forth above or to such other address as may be specified by either party to the other in accordance with this Section.  Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section.

12.8 Force Majeure.  Licensor shall not be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, act of God or governmental action.

12.9 Relationship of the Parties.  The parties to this Agreement are independent contractors and this Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.  Neither party shall have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

12.10 Counterparts.  This Agreement may be executed in counterpart, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument.

12.11 Entire Agreement.  This Agreement and its exhibits are the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior or contemporaneous agreements, communications, and understandings (both written and oral) regarding such subject matter.  Any waiver, modification or amendment of any provision of this Agreement shall be effective only if in writing and signed by duly authorized representatives of the parties hereto.

12.12 Attorneys Fees.  In the event that either party resorts to legal action to enforce its rights under this Agreement, the prevailing party in such action shall be entitled to have all costs and expenses incurred in such action, including courts costs and reasonable attorneys fees, paid by the other party.