Kymera EULA

Software License & Support Terms & Conditions

These terms are a legal agreement between Kymera Systems Inc. ("Kymera") of Drayton Valley Office – 4709 Beckett Road, Drayton Valley, AB, Canada and the licensee who accepts these terms and downloads the software from the Inductive Automation Module Marketplace (the "Licensee").

A Licensee who has previously entered into a license agreement for the use of Kymera software hereby agrees to the amendment of that license and agrees to be bound by these terms as a condition of using any updates or upgrades to the software. These terms replace the previous license agreement.

Please read all the terms before indicating acceptance. These terms apply to Kymera modules, software, support services and any updates, upgrades, supplements, new features released by Kymera in respect of the licensed software, unless other terms accompany those items. If so, those terms apply. By using Kymera software and support, or any updates to the software, Licensee accepts these terms. If Licensee does not accept them, Licensee is not authorized to use the software or services or any updates to the software. Licensee is bound by these terms even if it does not read all the terms.

1.0		DEFINTIONS

1.1		"Effective Date" means the date on which the following has occurred: payment of the License Fee and acceptance of these terms by Licensee;
1.2		"Kymera Software" means licensed Kymera software module, and any fixes, patches or updates released by Kymera, as listed in the Inductive Automation Module Marketplace download screen;
1.3		"Licensee" means the company or other legal entity acquiring a license to the Kymera Software under these Terms and Conditions;
1.4		"License Fee" is defined in Section 4.1;
1.5		"Licensor IP" is defined in Section 2.5;
1.6		"Support" means the technical support provided by Kymera in relation to the Kymera Software, together with any supplied help file, users’ manual or other documentation which is accessible as part of the Kymera Software, subject to the Kymera Support Policy;
1.7		"Term" is defined in Section 9.1;
1.8		"User" means Licensee’s authorized end–user of the Kymera Software.

2.0		LICENSE

2.1 Grant of License. The Kymera Software is licensed to Licensee (not sold) based on the number of copies of Kymera Software that Licensee installs. Licensee is granted a non-exclusive, non-sublicensable, non-assignable, and non-transferable license, for use by the Users, to install and run the Kymera Software during the Term, conditional upon payment of the License Fee. The license granted under these Terms and Conditions is granted only to Licensee and not to any affiliated companies. Licensee is only permitted to install and run the permitted number of copies of the Kymera Software for the permitted number of Users, servers, processors, devices and physical location(s) all as set out in the Inductive Automation Module Marketplace download screen or as may be otherwise restricted by the license key. Unless otherwise set out in the Inductive Automation Module Marketplace download screen or as may be otherwise restricted by the license key, the Kymera Software is licensed to unlimited Users within the Licensee corporate entity.
2.2 Device Licenses. Certain modules require additional licenses for registered devices. Licensee shall acquire a license for the total number of registered devices that use, run or access the Kymera Software .
2.3 Circumvention Prohibited. Any hardware or software used by Licensee to directly or indirectly access the Kymera Software, pool connections, or reduce the number of devices or users that directly access or use the Kymera Software (sometimes referred to as "multiplexing" or "pooling", does not reduce the number of device licenses or user licenses that Licensee requires. If Licensee exceeds the maximum number of registered devices, or permitted Users, through any such method, Licensee will be in breach of this license.
2.4 Licensee’s Representation & Warranty. Licensee represents and warrants that it has a valid license from Inductive Automation for the use of Inductive Automation software and that Licensee or the person entering into these Terms and Conditions has the authority to do so, and in doing so will not violate any other agreement to which Licensee is a party.
2.5 Intellectual Property. Kymera and its third–party licensors own any and all any intellectual property rights and all right, title and interest in and to the Kymera Software and any documentation supplied with the Kymera Software or Support, and the trade-marks of Kymera (collectively the "Licensor IP"). Licensor IP is protected by Canadian, US and international copyrights. All inventions, discoveries, improvements, software, copyright, know-how or other intellectual property, whether or not protected by patent or copyright, created prior to or during this agreement pertaining to Licensor IP, is and will remain the sole and absolute property of Kymera. Licensee will maintain any proprietary notices which may appear on the Licensor IP.

3.0		DATA

3.1 Data Archiving & Security. Kymera does not host data in connection with Licensee’s use of the Kymera Software. Licensee is responsible for archiving and data back–up for its own purposes and for security and encryption of any confidential or sensitive content or data. Licensee is solely responsible for any content or data that is input, output, uploaded or downloaded by Licensee through the Kymera Software.

4.0		PAYMENTS

4.1 License Fee. As a condition of licensing the Kymera Software and obtaining Support, Licensee agrees to pay the license fees to Inductive Automation as listed in the Inductive Automation Module Marketplace download screen (collectively the "License Fee").
4.2 Other Payments or Expenses. Licensee will be responsible for the payment of any applicable taxes related to the license of Kymera Software or Support, and any additional modules which may be licensed from time to time, as set forth in the Inductive Automation Module Marketplace download screen.

5.0		SUPPORT SERVICES

5.1 Support. Kymera will provide Support on the terms of the Kymera Support Policy, depending on the Licensee’s support package with Inductive Automation.
5.2 Software Maintenance. Depending on the Licensee’s support package with Inductive Automation, Kymera will make available generally released program updates on the terms of the Support Policy, excluding any new versions, upgrades or new modules released by Kymera as a separately–priced item.

6.0		RESTRICTIONS

6.1		Restrictions. Licensee shall not, and shall not authorize any third party to:
	(a) make unauthorized copies of Licensor IP;
	(b) modify, decompile, disassemble, translate into another computer language, create derivative works, access the source code, hack, decrypt, rename files, or otherwise reverse engineer Licensor IP;
	(c) incorporate any portion of Licensor IP into any products which will be sold, licensed or transferred to a third party;
	(d) use Licensor IP in connection with a computer based service business for others, or display the visual output of Licensor IP for others;
	(e) distribute, sell, lease, transfer, assign, trade, rent, lease or lend Licensor IP or publish, license, sublicense or cross–license Licensor IP or any part thereof and/ or copies thereof to others;
	(f) use Licensor IP or any part thereof in violation of any law or regulation, or for any purpose other than as expressly permitted in these Terms and Conditions;
	(g) distribute screen shots, or disclose to a third party the results of any benchmark test of Licensor IP without approval by Kymera;
	(h) permit any person other than authorized Users to use the Kymera Software; or
	(i) copy, misuse or duplicate the layout and design of Licensor IP, or the underlying code and database structures.

7.0		LIMITATION OF LIABILITY & DISCLAIMER OF WARRANTY

7.1 DISCLAIMER. The Kymera Software and Support are provided "AS IS" without warranties, conditions or representations of any kind, and Kymera expressly disclaims, to the fullest extent permitted by applicable law, any warranty, representation or condition, express or implied, statutory or otherwise, whether arising from trade or course of dealing, including, without limitation, any warranty that the Kymera Software and Support (i) shall correspond with a particular description, (ii) are of merchantable quality, (iii) are fit for Licensee’s particular purpose, (iv) are durable for a reasonable period of time, (v) do not and will not infringe any patent, trade–mark, trade–secret or other intellectual property or other proprietary rights of any third party (other than as set forth in Section 7.4), (vi) are bug or error free, or (vii) are accessible through all devices or browsers. Licensee acknowledges that entry, conversion and storage of data is subject to human and machine error and that Kymera shall not be liable to Licensee or Licensee’s Users for any loss, corruption or errors in data, including detrimental reliance on erroneous, manipulated or corrupted data. Kymera is not responsible for third–party software vendors including Inductive Automation and its software. Kymera makes no representations or warranties with respect to such third–party software vendors, nor do they have any authority to bind Kymera or modify any terms of these terms, verbally or otherwise. Kymera disclaims all liability in connection with any third–party software, modules, viruses, hardware or failures in the internet. Kymera cannot warrant that the Kymera Software will be compatible with all third–party software or platforms which may now or in the future be used by Inductive Automation or others. Licensee acknowledges that Kymera has no authority over Inductive Automation and cannot obligate Inductive Automation to integrate the Kymera Software in any way.
7.2 ALLOCATION OF RISK. Kymera shall not be liable for any monetary damages whatsoever with respect to Licensee’s or any of Licensee’s Users’ use of the Kymera Software hereunder, nor shall Kymera be liable for any indirect, incidental, consequential, special, punitive or exemplary damages arising out of these Terms and Conditions, even if Kymera is advised of the possibility of such damages. The entire risk as to the results and performance of the Kymera Software and Support is assumed by Licensee and Licensee agrees to implement and adopt reasonable measures to examine and confirm results prior to use, to back–up and reconstruct data, and limit exposure to errors and failures in data and storage media.
7.3 LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF KYMERA, WHETHER UNDER THE EXPRESS OR IMPLIED TERMS OF THESE TERMS AND CONDITIONS, IN TORT (INCLUDING NEGLIGENCE OR OTHER DUTY OF CARE) OR AT COMMON LAW, FOR ANY LOSS OR DAMAGE INCLUDING BUT NOT LIMITED TO ANY DATA LOSS OR CORRUPTION, SUFFERED BY LICENSEE OR ANY OF LICENSEE’S USERS OR THIRD PARTIES, WHETHER DIRECT, INDIRECT OR SPECIAL, OR ANY OTHER SIMILAR DAMAGE THAT MAY ARISE OR DOES ARISE FROM THE KYMERA SOFTWARE AND SUPPORT OR ANY BREACH OF THESE TERMS AND CONDITIONS BY KYMERA, SHALL IN NO EVENT EXCEED THE NET FEES RECEIVED BY KYMERA FOR THE LICENSE OF THE KYMERA SOFTWARE BY LICENSEE.
7.4 INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT. In the event any litigation is commenced by an unaffiliated third party alleging that the Kymera Software, when used in accordance with these Terms and Conditions, infringes any patent issued to or copyright registered by an unaffiliated third party in Canada as of the Effective Date, Licensee’s sole remedy shall be as follows: to immediately notify Kymera in writing and thereafter Kymera may elect at its option and expense and without obligation to do so before or after any injunction or other order by a court of competent jurisdiction, to either (a) procure for Licensee the right to continue to run the Kymera Software, (b) modify the Kymera Software to make it non–infringing, (c) replace the Kymera Software with a functional non–infringing equivalent, in which case Licensee will cease using the Kymera Software immediately; or (d) refund the License Fee paid by Licensee and terminate these Terms and Conditions. The foregoing represents Licensee’s entire and sole remedy and the entire and sole liability of Kymera for infringement or claims of infringement relating to the Kymera Software. If any other type of third party claim is brought against Licensee regarding any Licensor IP, Licensee must notify Kymera promptly in writing. Kymera may, at its option, choose to treat these claims as being covered by this section.

8.0		INDEMNITY

8.1 Licensee Indemnity. Licensee indemnifies, holds harmless and defends Kymera against any and all third–party claims (including all associated legal fees and disbursements actually incurred) against Kymera arising out of a breach by Licensee or Licensee’s Users of the obligations under these Terms and Conditions, or the use or misuse of the Kymera Software by Licensee or any of Licensee’s Users.

9.0		TERM & TERMINATION

9.1 Term. This Agreement will start on the Effective Date and will continue until terminated under these Terms and Conditions (the "Term").
9.2 Termination. Licensee may terminate these Terms and Conditions without cause at any time, in which case any prepaid amounts will be non–refundable. Licensee may also terminate these Terms and Conditions on 21 days’ written notice if Kymera is in breach of these Terms and Conditions and such breach has not been cured within the notice period. Kymera shall have the right to terminate these Terms and Conditions (a) on 21 days’ written notice if Licensee is in breach of any material term of these Terms and Conditions or any other agreement with Kymera and such breach has not been cured within the notice period; or (b) immediately without notice if Licensee is bankrupt, insolvent or the subject of any proceeding under the Bankruptcy and Insolvency Act or CCAA, or any other statute of similar purpose which has not been successfully resolved in Licensee’s favour within 30 days. Such termination shall be in addition to and not in lieu of any legal remedies otherwise available to the terminating party.
9.3 Effect of Termination. Upon termination or expiry of these Terms and Conditions, Licensee will cease all use of any Licensor IP.

10.0		VERIFICATION & PRODUCT IMPROVEMENT

10.1 Verification. Kymera has the right to monitor usage and verify compliance with the terms of these Terms and Conditions and Licensee agrees to provide Kymera with information as may be reasonably requested from time to time regarding usage for product improvement and other compliance requirements.

11.0		GOVERNING LAW & DISPUTES

11.1 Governing Law & Disputes. This Agreement is governed by the laws of the Province of Alberta, Canada, without regard to its conflict of laws rules. Both parties agree that by entering into these Terms and Conditions they have attorned to the exclusive jurisdiction of the courts in the Province of Alberta for the resolution of any disputes related to these Terms and Conditions.

12.0		GENERAL TERMS

12.1 Commercial Third–Party Licenses. Licensee is required to obtain and maintain any commercial third–party hardware and software which may be required to use the Kymera Software (including Inductive Automation software, any wireless data communications services from a service provider; and any wireless handheld end–user devices).
12.2 Assignment. Licensee will not assign, transfer, encumber or otherwise dispose of any or all of the rights granted to Licensee under these Terms and Conditions without the prior written consent of Kymera, provided however that if Licensee provide written notice to Kymera with sufficient details, consent will not be unreasonably withheld if the assignment is part of a duly authorized corporate re–organization or duly authorized disposition of all or substantially all of the assets of the licensee. Kymera may assign these Terms and Conditions to a third–party upon written notice to Licensee.
12.3 No Partnership. Nothing contained in these Terms and Conditions is to be deemed or construed to create between the parties a partnership or joint venture. No party has the authority to act on behalf of any other party, or to commit any other party in any manner at all or cause any other party's name to be used in any way not specifically authorized by these Terms and Conditions.
12.4 Enurement. Subject to the limitations in these Terms and Conditions, these Terms and Conditions operates for the benefit of and is binding on the parties and their respective successors and permitted assigns.
12.5 No Waiver. No condoning, excusing or overlooking by any party of any default, breach or non observance by any other party at any time regarding any terms of these Terms and Conditions operates as a waiver of that party's rights under these Terms and Conditions. No exercise of a specific right or remedy by any party precludes it from or prejudices it in exercising another right or pursuing another remedy or maintaining an action to which it may otherwise be entitled either at law or in equity.
12.6 Survival. All terms which require performance by the parties after the expiry or termination of these Terms and Conditions, will remain in force despite these Terms and Conditions's expiry or termination for any reason. The following terms shall survive termination: 2.5, 7.0, 9.3 and 11.0.
12.7 Language. It is the express will of the parties that these Terms and Conditions and all related documents be drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.
12.8 Severability. Part or all of any section that is indefinite, invalid, illegal or otherwise voidable or unenforceable may be severed and the balance of these Terms and Conditions will continue in full force and effect.
12.9 Export Controls. Licensee may not use, export or re–export the Kymera Software except as authorized by applicable United States or Canadian law. By using the Kymera Software, Licensee represents and warrants that Licensee is not located in, under control of, or a national or resident of any country subject to export controls.
12.10 Entire Agreement. These Terms and Conditions and the Support Policy set out the entire understanding between the parties related to the licensing of Kymera Software and the Support.
12.11 Changes. On release of any update or upgrade to the Kymera Software, Kymera reserves the right to modify these Terms and Conditions and to impose new or additional terms or conditions on Licensee’s use of the Kymera Software. The then–current terms (including any modifications and additional terms and conditions if applicable) will be presented to the Licensee and will be effective immediately upon Licensee’s acceptance of the terms and continued use of the Kymera Software.
12.12 Electronic Acceptance. This Agreement may be agreed to by electronic acceptance.
12.13 If Licensee has questions about these terms or wish to contact Kymera for any reason, please contact us at: sales@kymerasystems.com; Drayton Valley Office – 4709 Beckett Road, Drayton Valley, AB, Canada

13.0		THIRD PARTY LICENSES AND NOTICES

13.1 Depending on the module licensed by Licensee, the Kymera Software may contain software from the following entities, whose inclusion is governed by the following third party licenses and require the following notices:
	(a) Excel Module (Apache POI Library), Field Data Entry (Simple XML), Scripting Module (ZXing), CloudFiles (jclouds), the SNMP module (snmp4j library) use libraries licensed under the Apache License, v 2.0, and PDF Module is also licensed under the Apache License, v 2.0: (Apache License, Version 2.0, January 2004, you may not use the listed files except in compliance with the Apache License. You may obtain a copy of the Apache License at http://www.apache.org/licenses/LICENSE-2.0 Software distributed under the Apache License is distributed on an "AS IS" BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the Apache License for the specific language governing permissions and limitations.
	(b) The SNMP module uses the Mibble library licensed under the Mibble Software License Agreement. A copy of the license can be found at http://www.mibble.org/download/commercial-license.pdf See the license for more details;

End of Terms

Support Policy

Defined Terms
Unless otherwise defined, capitalized terms are defined in the Software License & Support Terms & Conditions.

"Defect" means any material and reproducible failure of the Kymera Software to perform in all material respects in accordance with provided documentation, excluding isolated defects or errors that are not reproducible by Kymera, or do not impact or affect multiple users.
"Update" means a new release of any component of the Kymera Software with a change in the Y component of the software’s X.Y.Z version number.
"Upgrade" means a new release of any component of the Kymera Software with a change in the X component of the software’s X.Y.Z version number, incorporating significant new features or functionality.

Support Package Required – If Licensee does not have a valid paid–up support package with Inductive Automation or Kymera, support by Kymera is limited to 30 days from Effective Date.

Updates – Depending on the Licensee’s support package with Inductive Automation, Updates of the Kymera Software are developed on a regular basis as part of the Support. These Updates include corrections and fixes for Defects and other product enhancements.

Documentation Updates – Depending on the Licensee’s support package with Inductive Automation, Kymera may provide user manual updates from time to time, to keep the documentation current with capabilities of the relevant software. These updates are provided in electronic form as part of the Support and are automatically released or provided with the Updates.

Contacting Support – Depending on the Licensee’s support package with Inductive Automation, Kymera will provide Licensee with access to technical support resources (Monday to Friday 8:00 am to 5:00 pm MT via support@kymerasystems.com) for resolution of Defects through Updates or other workarounds. Licensee may be required to provide log files, configuration details and other information as required when trouble–shooting support issues. All support services are provided on an as–available basis.

Support Limitations – Support covers support for normal usage of the Kymera Software by Licensee and its Users. Kymera will support the current version of the Kymera Software. Kymera will support actively available versions of the Kymera Software. Support is subject to the following limitations:

Support does include Upgrades.
Support does not include problems encountered with third–party software, whether or not that software is used in conjunction with the Kymera Software.
System requirements may apply, as approved by Kymera, including mobile device OS versions, operating system levels, firmware levels, devices, device drivers, and applications. Kymera reserves the right to limit Support in respect of hardware or devices that fail to comply with stated criteria and reserves the right to reasonably update and modify such criteria from time to time.
Support does not include on–site support; this may be provided on a time and materials basis, based on the availability of resources and subject to a separate Statement of Work. Additional charges may apply.
This Support Policy does not apply to:

Any problems or issues caused by or attributable to user error, incompatible mobile devices or ereaders, accident, misuse, or other external cause;
Any problems or issues that could be resolved by upgrading to the then current Upgrade version of the Kymera Software;
Installation, removal or disposal of any hardware or equipment, or the provision of replacement hardware or equipment;
Any "beta" or "prerelease" software;
Third–party web browsers, email applications, and Internet service provider software or changes in mobile devices or ereader hardware or software;
Viruses, worms, malware or failures in the internet.