Electronic License Grant Terms

8/17/2019 Electronic License Grant Terms

1/8

ETAP LICENSE AGREEMENT

IMPORTANT – READ CAREFULLY:

A. NOTICE. IF YOU (AS DEFINED BELOW) HAVE PREVIOUSLY EXECUTED A LICENSE

AGREEMENT (“PRE-EXISTING AGREEMENT”) WITH THE LICENSOR (AS DEFINEDBELOW) FOR THE SOFTWARE KNOWN AS “ELECTRICAL TRANSIENT ANALYZER

PROGRAM,” THE PRE-EXISTING AGREEMENT SHALL GOVERN YOUR RIGHTS AND

OBLIGATIONS WITH REGARD TO THE PORTION(S) OF SUCH SOFTWARE BEING

INSTALLED AT THIS TIME AND THE ETAP LICENSE AGREEMENT THAT FOLLOWS

SHALL NOT APPLY TO YOU REGARDLESS OF YOUR ACCEPTANCE OF THIS

AGREEMENT BY CLICKING “ACCEPT” BELOW. IF YOU (“LICENSEE” AS DEFINED

BELOW) HAVE NOT PREVIOUSLY EXECUTED A LICENSE AGREEMENT WITH THE

LICENSOR, YOU MUST READ THIS ETAP LICENSE AGREEMENT CAREFULLY BEFORE

INSTALLING, ACCESSING, OR USING THE SUBJECT SOFTWARE, AS DEFINED IN THE

AGREEMENT BELOW. BY CLICKING THE “ACCEPT” BUTTON BELOW, (A) YOU

INDICATE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS STATED IN THE

ETAP LICENSE AGREEMENT BELOW ON BEHALF OF THE ENTITY FOR WHICH YOU

ARE AUTHORIZED TO ACT (E.G., AN EMPLOYER OR PRINCIPAL) AND ACKNOWLEDGE

THAT SUCH ENTITY IS LEGALLY BOUND BY THIS AGREEMENT, OR IF THERE IS NO

SUCH ENTITY FOR WHICH YOU ARE AUTHORIZED TO ACT, YOU ACCEPT THIS

AGREEMENT ON BEHALF OF YOURSELF AS AN INDIVIDUAL AND ACKNOWLEDGE

THAT YOU ARE LEGALLY BOUND BY THIS AGREEMENT, AND (B) YOU REPRESENT

AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON

BEHALF OF AND BIND SUCH ENTITY (IF ANY) OR YOURSELF.

IF YOU ARE NOT AUTHORIZED TO ENTER INTO THE AGREEMENT BELOW, OR IF YOUDO NOT CLICK “ACCEPT” BELOW, THEN YOU MUST CLICK ON THE “CANCEL”

BUTTON BELOW, YOU MUST NOT INSTALL, ACCESS, COPY OR USE ANY PART OF THESOFTWARE AND YOU MUST RETURN THE SOFTWARE AND ACCOMPANYINGDOCUMENTATION TO LICENSOR.

B. Definitions. As used in this Software License Agreement, the following terms are defined as followsand other defined terms shall have the meaning ascribed to them in this Software License Agreement:

1. “Agreement” means this ETAP License Agreement.

2. “Licensee” means the individual or entity as defined in the purchase orders or other similar

purchase documentation that is specifically granted the right to use the Software under thisAgreement.

3. “Licensor” means Operation Technology, Inc.

4.

“Portion” means parts of the computer program in object code provided access to by Licensor toLicensee and expressly and specifically identified in purchase orders or other similar

documentation, which purchase orders or other similar documentation may be dated either priorto or after the date of this Agreement.


2/8

5. “Software” means the computer programs in object code as well as Security Key(s), Computer

user Guide and other printed or electronic supporting materials provided by Licensor to Licenseein relation to the computer program known as “Electrical Transient Analyzer Program” or ETAP .

6.

“You” means the Licensee.

GENERAL TERMS AND CONDITIONS

This ETAP License Agreement (the “Agreement”), effective as of the date You accept the terms

hereof (unless returned as specified above or in the case of the existence of a Pre-Existing Agreement)(the “Effective Date”), is entered into between Licensor and Licensee. The parties agree as follows:

1. License Grant. Licensor does hereby grant a nontransferable and nonexclusive right to Licenseeto use Portions of the Software entitled “Electrical Transient Analyzer Program” (ETAP), under theTerms stated in this Agreement, for that number of Licenses used by the Licensee or Licensee’semployees and authorized users by any means such as computers, processors, servers, terminals and othercomputer equipment (“Physical Machines”) or software-based or cloud-based virtual servers, computers

and processors (“Virtual Machines”) equal to or less than the number of licenses purchased by Licensee(pursuant to relevant purchase orders or other similar documentation). For example, if Licensee has

purchased four (4) licenses, Licensee may only access or use the Software on a total of four (4) PhysicalMachines and/or Virtual Machines at any one time. The Software may not, under any circumstances, be

used in any manner not specifically permitted by the type of license purchased (as defined in Section 12 below and pursuant to relevant purchase orders or other similar documentation) including, but not limitedto, use on any network, cloud and/or virtual machine application, even if such use is technologically

possible. The Software is not licensed for commercial hosting. Any use of the Software in a mannerinconsistent with the terms of this license grant and Agreement shall be deemed a breach of the terms of

this Agreement and shall constitute a breach or and termination of this Agreement. Unless agreed by theParties in writing otherwise, this Agreement shall apply to all Portions of Software provided by Licensorto Licensee at any time.

If Licensee becomes aware, at any point in time, that its use of the Software on Physical and/or Virtual

Machines exceeds the number of licenses Licensee has purchased, Licensee is required to immediatelystop such unauthorized use and notify Licensor of such unauthorized use.

2. Ownership of Intellectual Property Rights. Except as expressly stated in this Agreement,Licensor owns and shall retain full ownership of all of the Intellectual Property rights (including but notlimited to all copyrights) in and to the Software.

3. Ownership of Title to Software. Except as expressly provided for in this Agreement, title and

full ownership of the Software shall at all times remain with Licensor. Except as expressly stated in thisAgreement with regard to certain documentation provided by Licensor to Licensee, Licensee shall haveno title to the Software. Licensee acknowledges that Licensor retains all Intellectual Property rights, title,

and interest in the Software, including without limitation all source code, object code, machine code,commentaries and supporting materials. Licensee hereby agrees not to re-sell trade or otherwise make the

Software available to any third person or entity.

4. Trade Secrets. Methods of computation, computer coding and other processes and information

contained or implemented in the Software shall be considered to be Licensor’s trade secrets and are


3/8

highly confidential. Licensee shall not undertake to disassemble, decompile, or reverse engineer any suchtrade secrets and shall not disclose them to any third party. Licensee shall not write or develop any

software program based upon the Software received from Licensor, or any part thereof.

5. Copies. Licensee shall have the right to make copies of any documentation accompanying theSoftware code (but not the code itself) for Licensee’s use only consistent with the terms and conditions of

this Agreement. Any reproduction of such documentation shall include a copyright notice attributing allcopyrights to Licensor.

6.

ASSUMPTION OF RISK. THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE,AND CORRECTNESS OF RESULTS OF THE SOFTWARE LIES WITH LICENSEE. LICENSEEAGREES THAT LICENSOR AND ITS OFFICERS, EMPLOYEES, OR REPRESENTATIVES SHALL

HAVE NO DIRECT, INDIRECT, OR SPECIAL OBLIGATIONS OR LIABILITIES IN CONNECTIONWITH THE USE AND OPERATION OF THE SOFTWARE. FURTHERMORE, LICENSOR AND ITSOFFICERS, EMPLOYEES, REPRESENTATIVES, OR OTHER AGENTS OF LICENSOR SHALL BE

HELD HARMLESS FROM ANY CLAIMS, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ORLEGAL PROCEEDINGS ARISING OUT OF USAGE AND/OR PERFORMANCE OF THE

SOFTWARE OR OTHER SUPPORTING MATERIALS.

7.

NO WARRANTIES. THE ENTIRE RESPONSIBILITY AS TO THE APPLICATION OFTHE SOFTWARE IS WITH THE LICENSEE. EXCEPT AS EXPRESSLY STATED

OTHERWISE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT ALLOWED BY LAW,

LICENSOR DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES OF ANY KIND,

INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, WARRANTIES OF

FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF

DEALING OR USAGE OF TRADE, WARRANTIES OF TITLE OR AGAINST

INFRINGEMENT, AND ANY WARRANTIES THAT MIGHT OTHERWISE BY DEEMED TO

ARISE FROM THE USE OF THE SOFTWARE, OR PORTIONS THEREOF, OR FROM ANY

OF LICENSOR’S DOCUMENTATION OR FROM ANY MATERIALS OR SERVICES

FURNISHED OR PROVIDED TO LICENSEE UNDER THIS AGREEMENT.

8.

Indemnification. Licensee shall indemnify and hold harmless Licensor against any costs, fees ordamages arising out of any claim by a third party in connection with Licensee’s use of the Software.

9. DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NOEVENT SHALL LICENSOR BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL,INDIRECT OR PUNITIVE LOSS, DAMAGE OR EXPENSES OF ANY KIND WHATSOEVER

(INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOST GOOD WILL,BUSINESS INTERRUPTION, LOST BUSINESS, LOST SAVINGS, LOST OPPORTUNITY, LOST

DATA, OR DELAYS IN PERFORMANCE), EVEN IF IT HAS BEEN ADVISED OF THELIKELIHOOD THEREOF AND REGARDLESS OF WHETHER SOUGHT IN ANY ACTION ATLAW OR IN EQUITY AND REGARDLESS OF WHETHER BROUGHT AS A CONTRACT ACTION,

TORT, STRICT LIABILITY, STATUTORY CLAIM, OR OTHERWISE.

10. LIMITATION OF DAMAGES. IN NO EVENT SHALL LICENSOR’S CUMULATIVELIABILITY TO LICENSEE UNDER THIS AGREEMENT OR RELATED CLAIMS, INCLUDINGANY FUTURE MODIFICATION OR EXTENSION OF THIS AGREEMENT, EXCEED THE

AMOUNT PAID BY LICENSEE UNDER THIS AGREEMENT TO LICENSOR WITHIN THETWELVE (12) MONTHS PRIOR TO THE EVENT, ACTION, OR CIRCUMSTANCES GIVING RISETO THE LIABILITY OR, IF THERE ARE MULTIPLE EVENTS, ACTIONS OR CIRCUMSTANCESGIVING RISE TO SUCH LIABILITY, THE MAXIMUM CUMULATIVE AMOUNT PAID BY


4/8

LICENSEE UNDER THIS AGREEMENT TO LICENSOR IN ANY CONSECUTIVE PERIOD OFTHREE (3) YEARS.

11. Security Key. The Software is provided with a parallel or USB Socket (part number 1600),

hereafter referred to as Security Key. The Security Key is thoroughly tested before shipment, but if theSecurity Key should prove to be defective or is damaged, the Security Key can be replaced by returning

the defective Security Key to the Licensor for replacement. However, the Security Key cannot bereplaced if it is lost or stolen.

12.

License Type. The Software can be licensed as a Single, Site, or Corporate License with stand-alone or concurrent-user (Network-LAN or -WAN) configurations. The license type and capabilities shall

be as defined in the purchase documentation between Licensee and Licensor.

a. A Single License is defined as: A single copy of the Software for use with a single Security Keyon a single CPU (Central Processor Unit) which is either wholly-owned or leased and operated by

Licensee and is located on the specified premises of Licensee.

b. A Site License is defined as: Multiple copies of the Software for use on multiple CPU’s which areeither wholly-owned or leased and operated by Licensee and located at one specified location of

Licensee. With the purchase of a Site License, Licensee has the right to purchase unlimitedcopies at a substantially discounted price (per copy fee) for a single location. WAN copies cannot

be purchased under the Site License.

c. A Corporate License is defined as: Multiple copies of the Software for use on multiple CPU’swhich are either wholly-owned or leased and operated by Licensee at more than one specified

location. Licensee shall provide to Licensor a distribution list showing the location, and thecontact person at each location, where the Software is installed. All locations and CPU’s where

the Software is installed must be wholly-owned by Licensee. With the purchase of a CorporateLicense, Licensee has the right to purchase unlimited copies at a substantially discounted price(per copy fee) for multiple locations.

d.

A Stand-Alone Configuration is defined as: A stand-alone copy of the Software, used with asingle Security Key connected directly to the USB port of the CPU on which the software isinstalled. CPU must be wholly-owned and operated by Licensee and located at the specified

premises of Licensee.

e.

A Concurrent-User (Network-LAN) Configuration is defined as: Multiple copies of the Software

for use with a single Security Key on a single local area network (LAN) which is wholly-ownedand operated by Licensee and is located at one specified location of Licensee. The number ofsimultaneous users is based on the configuration purchased by Licensee.

f. A Concurrent-User (Regional WAN) configuration. Multiple copies of the Software for use with

a single Security Key on a single wide area network (“WAN”) which is wholly-owned andoperated by Licensee. The Security Key must be located at one specified location of Licensee.

The Regional WAN License can be accessed by multiple, wholly-owned locations of Licenseewithin the same country. The number of simultaneous users is based on the configuration

purchased by Licensee.

g.

A Concurrent-User (Network-WAN) Configuration is defined as: Multiple copies of theSoftware for use with a single Security Key on a single wide area network (WAN) which is

wholly-owned and operated by Licensee and is located at one specified location of Licensee. TheWAN License can be accessed by multiple, wholly-owned locations of Licensee. The number ofsimultaneous users is based on the configuration purchased by Licensee.


5/8

13. Errors. Licensor agrees to respond to any discovered errors by correcting action of the computercoding and/or logic of the Software, required operational changes and/or the User Guide. Such

discoveries shall be delivered to Licensor along with complete data and sample runs indicating the error.Licensor shall not be responsible or liable for any costs, losses, delays, associated damages, or any othercharges, which may be the result of such problems. Licensor’s entire liability in all situations involving

performance or nonperformance of the Software furnished under this agreement is limited to the

correction by Licensor of program defects.

14. Software Updates. Licensor agrees to deliver at no additional charge to Licensee updates or

new versions of the Software (limited to Portions purchased by Licensee) during a period of one yearfrom the original date of delivery of the Software if such updates and new releases become available toother licensees during such period of time.

15. No Known Infringement. To the best of Licensor’s knowledge, the use of the Software byLicensee does not infringe on any United States patent, copyright, trade secret or other proprietary right of

a third party.

16. Governing Law; Dispute Resolution. This Agreement shall be governed by and interpreted inaccordance with the laws of the State of California, United States of America. Any controversy or claimarising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration, and

judgment on the award rendered by a sole arbitrator may be entered in any court having jurisdictionthereof. The place of arbitration shall be Orange County, California, United States of America. The

arbitration shall be conducted pursuant to the rules of arbitration of the American Bar Association(“AAA”) in effect at the time arbitration demand is made. The parties shall have thirty (30) days after thedate of the arbitration demand to agree upon an arbitrator. After the period of thirty (30) days, if anarbitrator is not mutually selected by the parties, any party may inform the AAA accordingly and requestthat an arbitrator be appointed pursuant to the AAA Commercial Arbitration Rules. The appointed

arbitrator shall have no power to deviate from the applicable law.

17. Entire Agreement. This Agreement constitutes the entire agreement between the Parties withrespect to the subject matter hereof, and all agreements, representations, and statements with respect to

such subject matter are superseded hereby. Any verbal, written, direct, or indirect agreement betweenLicensee and an authorized ETAP Representative or any other third party shall have no effect on thisagreement. The terms of any such agreement shall not be binding upon Licensor without Licensor’s prior

written consent. Any terms set forth in Licensee’s purchase order or similar document (whether issued prior to or after the date of this Agreement) that are in addition to or at variance with the terms of thisAgreement are specifically and expressly waived by Licensee. All such terms are considered to be

proposed material alterations of this Agreement and are hereby rejected. No purchase order or similardocument of Licensee (regardless of its timing) shall amend or supplement the terms of this Agreement,

even if accepted or signed by Licensor. No waiver, consent or modification of this Agreement shall bindeither party unless it (a) is in writing, (b) expressly states that it modifies this Agreement, and (c) signed

by the party against whom enforcement is sought. Licensee acknowledges and agrees, however, that

Licensor may add to or change the terms of this Agreement from time to time in subsequent releases or

updates of the Software.

18. Substitute Provisions; Full Force and Effect. If any part of this Agreement is found to beinvalid or unenforceable, it shall be enforced to the maximum extent permitted by applicable law and will

be deemed modified to the extent necessary to conform to applicable law so as to give the maximumeffect to the intent of the parties. The remaining provisions shall remain in full force and effect.

19. Export Control. Licensee acknowledges and agrees that the Software is subject to exportcontrols imposed by the United States Export Administration Act of 1979, as amended (the “Act”), and


6/8

the regulations promulgated thereunder. Licensee certifies and agrees that neither the Software nor anyother technical data nor the direct product thereof is intended to be used for any purposes prohibited by

the Act, including but not limited to nuclear proliferation, chemical/biological weapons or missiles.Licensee shall not, and shall not allow any third party to, remove or export any part of the Software or anydirect product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supportingcountry; (b) to anyone on the United States government denial list, including but not limited to, the

United States Department of Commerce Denied Persons, Entities, and Unverified Lists, the United StatesDepartment of Treasury Specially Designated Nationals List, and the United States Department of StateDebarred List; (c) to any country to which such export or re-export is restricted or prohibited, or as towhich the United States government or any agency thereof requires an export license or othergovernmental approval at the time of export or re-export without first obtaining such license or approval;or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States

or foreign agency or authority. Licensee shall indemnify, defend and hold harmless Licensor from andagainst any claims, penalties, loss or damage arising out of a breach of its obligations under thisParagraph.

20. U.S. Government Restricted Rights. If the Software is acquired for on behalf of the United

States of America, its agencies and/or instrumentalities (“U.S. Government”), it is provided with

RESTRICTED RIGHTS. The Software is “commercial computer software” and “commercial computerdocumentation,” pursuant to 48 C.F.R. 12.212 (Computer Software) and 227.7202 (CommercialComputer Software and Commercial Computer Software Documentation), and “restricted computersoftware” pursuant to 48 C.F.R. 52.227-19(a), as applicable. Use, modification, reproduction, release,

performance, display or disclosure of the Software by the U.S. Government are subject to restrictions asset forth in this Agreement and pursuant to 48 C.F.R. 12.212, 52.227-19, 227.7202 and 1852.227-86, as

applicable. Manufacturer is Operation Technology, Inc., 17 Goodyear, Suite 100, Irvine, CA 92618.

21.

No Assignment. Licensee shall have no right to assign this Agreement to any third party without

a prior written consent of the Licensor.

SPECIFIC TERMS AND CONDITIONS BASED ON LICENSE TYPE

22. Commercial / Advantage / Nuclear License. The following terms are applicable only toLicensees purchasing or holding a Commercial, Advantage, or Nuclear License for the Software,consistent with the applicable purchase documentation and are in addition to the foregoing General Termsand Conditions. To the extent that there is a conflict between the terms of this paragraph and any other

terms within this Agreement, the terms of this paragraph shall govern for a Licensee holding a non-Subscription Commercial, Advantage, or Nuclear License.

a. Licensor does hereby grant a nontransferable, nonexclusive, and perpetual right to Licenseeto use Portions of the Software.

23. Educational / Power Lab License. The following terms are applicable only to Licensees purchasing or holding an Educational or Power Lab License for the Software, consistent with the

applicable purchase documentation and are in addition to the foregoing General Terms and Conditions.To the extent that there is a conflict between the terms of this paragraph and any other terms within thisAgreement, the terms of this paragraph shall govern for a Licensee holding an Educational or Power LabLicense.

a.

Holders of Educational or Power Lab Licenses for the Software agree that the Software can be used for educational purposes only, without exception. The results of analysis performed


7/8

with Software under the Educational or Power Lab License shall not be delivered, providedor otherwise disclosed in any form (machine readable, printed, orally, etc.) to any person or

organization other than the course instructor or students enrolled in the course where theSoftware is used.

b. Licensor agrees to deliver at no additional charge to Licensee any updates or new versions of

the Software during a period of three years from the original date of delivery of the Software.

24. Research Institute License. The following terms are applicable only to Licensees purchasing orholding a Research Institute License for the Software, consistent with the applicable purchasedocumentation and are in addition to the foregoing General Terms and Conditions. To the extent thatthere is a conflict between the terms of this paragraph and any other terms within this Agreement, the

terms of this paragraph shall govern for a Licensee holding a Research Institute License.

a. LICENSOR hereby grants a nontransferable and nonexclusive right to Licensee to use

Portions of the Software. The rights granted herein may be either perpetual or subject to aspecific term, as confirmed and set forth in the applicable purchase documentation.

b. Holders of the Research Institute License for the Software agree that the Software can be

used only for grants from the government or other entities for funded research projects.Licensee affirms and guarantees that the results of analysis performed with the ResearchLicense shall not be used for any commercial purpose.

25. Theses License. The following terms are applicable only to Licensees purchasing or holding aTheses License for the Software, consistent with the applicable purchase documentation and are in

addition to the foregoing General Terms and Conditions. To the extent that there is a conflict between theterms of this paragraph and any other terms within this Agreement, the terms of this paragraph shall

govern for a Licensee holding a Theses License.

a. Holders of the Theses License for the Software agree that the Software can only be used for

conducting non-commercial academic research in fulfillment of a graduate student program.

The results of analysis performed with the Graduate Student License can only be delivered, provided or otherwise disclosed to the overseeing organization committee including but notlimited to the graduate students’ advisor, chair, or mentor, as applicable.

b. The rights granted hereunder to holders of a Theses License for the Software are renewableuntil the graduate student(s) (as identified in the applicable purchase documentation) has

finished his/her/their course of studies and as agreed to by Licensor and Licensee.

26.

Subscription License. The following terms are applicable only to Licensees purchasing or

holding a Subscription License to the Software, or Portions thereof, consistent with the applicable purchase documentation and are in addition to the foregoing general Terms and Conditions. To the extent

that there is a conflict between the terms of this paragraph and any other terms within this Agreement, theterms of this paragraph shall govern for a Licensee holding a Subscription License to the Software.

a. Licensee shall be entitled to use the Software, or Portions thereof, in accordance with theseterms for a period of 12 months (“Subscription Period”) from the date of delivery of theSoftware by Licensor to Licensee. Licensee shall have no perpetual right to use the Software.

b. Subscription License configuration shall be a time-limited, stand-alone copy of the Software,or Portions thereof, used with a single Security Key connected directly to the USB port of theCPU (Central Processor Unit) on which the Software is installed. CPU must be wholly-


8/8

owned or leased and operated by Licensee and located at the premises of Licensee, asspecified in the purchase documentation.

c. No perpetual license vesting or credits will be accumulated with the purchase of Subscription

Licenses. If at any time a Licensee desires to move from Subscription Licenses to perpetuallicenses, the Licensee must pay the full perpetual license fee and obtain a written

confirmation from Licensor regarding the change of the type of the license granted toLicensee. Subscription License use rights shall expire at the end of the applicableSubscription Period if the subscription is not renewed. The Security Key shall be returned to

Licensor upon termination of the Subscription Period.

d. Licensor agrees to deliver at no additional charge to Licensee any updates or new versions of

the Software, or Portions thereof, during the Subscription Period.

Documents

Electronic License Grant Terms