Matrikon Developer License (v05-2024)
Last updated: 2024/05/31
Agreement.
The specific proprietary DevTools that this developer license agreement (the “Developer License”) relates to will be identified in a print or electronic document identified as “proposal”, “order”, “agreement” or similar name (the “Order Form”). Order Forms identify each transaction’s contracting entities, pricing, license entitlements and related provisions and may reference or link to supplemental terms, agreements, or policies, and references to an Order Form includes such documents. The Order Form together with the Developer License form a single contract (the “Agreement”).
Parties.
“Matrikon”, “we”, “us” or “our” means Matrikon International or its Affiliate(s) who execute or assent to the Order Form. “OEM”, “you” or “your” means collectively the other entities executing or assenting to the Order Form. “Affiliate” means any entity that controls, is controlled by, or is under common control with, another entity. An entity “controls” another if it owns directly or indirectly a sufficient voting interest to elect a majority of the directors or managing authority or otherwise direct the affairs or management of the entity.
Definitions.
Capitalized terms used and not defined in this Developer License have the respective meanings assigned to them elsewhere in the Agreement.
“Dev Products” means OPC UA-enabled software applications developed by you that uses or incorporates any of the DevTools, including bug fixes, updates, upgrades, of such software application programs.
“DevTools” means our proprietary software tools provided under a Matrikon Order Form to developers who want to create OPC UA-enabled applications. Such tools include: (a) application programming interface commands, functions, instructions, and objects for software that can remotely communicate and interact with our offerings (APIs); and (b) development kits with protocols, tools, libraries, documentation, code samples, processes, and/or guides (SDKs).
“End User” means an entity that purchases or licenses OEM Offerings from you for its own use, and individuals using the OEM Offerings on behalf of such entity.
“OEM Offerings” means your hardware, software or service offerings that incorporate the Dev Products.
License.
Subject to payment of agreed fees and strict compliance with the terms and conditions of the Agreement, we grant you, during the Term, a personal, revocable, non-exclusive, non-assignable, non-transferable, and non-sublicensable right to:
Developer License: reproduce, download, install, use and perform the features and functions of the DevTools, and print and display their documentation, solely for the purposes of developing and testing Dev Products for OEM Offerings, in each case, in accordance with the quantity of users and any other limitation on scope or use set forth the Order Form (collectively, “Dev Rights”).
Distribution License: reproduce and distribute to End Users the DevTools in machine-readable, object code form, as an embedded component of the Dev Products, which are incorporated into the OEM Offerings. For the avoidance of doubt, you shall not give End Users direct access to the DevTools.
Developers.
You, your employees and any party accessing the DevTools on your behalf (collectively, “Developers”) may exercise Dev Rights, provided that, you must bind them to the Agreement and are responsible for their compliance with it, any breach by them and their acts and omissions. You may not permit third parties (except your Affiliates and service providers) to be Developers or make copies of the DevTools (except for back up purposes) except as agreed by us in writing. We have no responsibility with respect to actions or inactions of Developers. You are solely responsible for testing and verifying the compatibility of all Dev Products and we have no liability for them even if we conducted a technical review.
Acceptable Use.
You may not without our prior written consent: (a) copy, modify, sublicense, rent, lease, loan, timeshare, use in the operation of a service bureau, sell, distribute, disclose, publish, assign, grant a security interest in, encumber or transfer in any manner the DevTools or any license rights; (b) use the DevTools for other than the Dev Rights; (c) create derivative or merged works of the DevTools or separate the component parts of the DevTools; (d) input, upload, transmit or otherwise provide to or through the DevTools, any unlawful, injurious or malicious information, materials or code; (e) perform, publish or release any penetration or vulnerability assessments, benchmarks or other comparisons regarding the DevTools; (f) alter or remove any proprietary rights notices or legends on or in the DevTools; (g) use our name, trademarks, service marks, or logos; (h) access or use or allow direct or indirect access or use of the DevTools for development, provision or use of a competing software service or product; (i) disclose any source code of which you become aware; or (j) disclose keys required to use the DevTools to any third party, except as explicitly provided for herein or circumvent any license management, security devices, access logs, or other software protection measures or modify, tamper with, reverse engineer, reverse compile or disassemble keys. Upon use of a new software key, you will not use the old key. You will not allow or enable a third party to engage in any of the foregoing. Any violation of the restrictions set forth in this Section shall constitute a breach of your Dev Rights under this Developer License. There may be measures in the DevTools designed to prevent unlicensed or illegal use of the DevTools.
No Support.
Unless agreed otherwise in the Order Form, no support is provided for the DevTools or Dev Products. We are not responsible or liable for any issues, problems, unavailability, delay or security incidents arising from or related to: (a) conditions or events reasonably outside of our control; (b) cyberattack; (c) the public internet and communications networks; (d) data, software, hardware, services, telecommunications, infrastructure or networking equipment not provided by us or acts or omissions of third parties you retain; (e) your and Developers negligence or failure to use the latest version or follow published documentation; (vi) modifications or alterations not made by us; (f) loss or corruption of data; (g) unauthorized access via your credentials; or (h) your failure to use commercially reasonable administrative, physical and technical safeguards to protect your systems or data or follow industry-standard or other mutually agreed upon security practices.
End User License Agreement.
You agree to include in your written agreement with End Users governing their use of the Dev Products, provisions that: (a) state we are not responsible for the Dev Products; (b) require End User to hold us harmless from all claims relating to its access and use of the Dev Products; and (c) protect our proprietary rights in the DevTools and which are equivalent to those terms of a similar nature contained in the Agreement.
Termination.
We may terminate the Agreement immediately upon notice if you breach your obligations, engage in conduct that infringes our intellectual property or if you are insolvent, attempt to obtain protection from creditors or wind down operations. We may terminate this Developer License for any reason upon 90 days written notice to you. Upon termination or expiration, you must immediately discontinue all use of DevTools.
IP.
All right, title and interest, including all intellectual property rights (including copyrights, trademarks and patents), proprietary rights (including trade secrets and know-how), and moral rights (including rights of authorship and modification) throughout the world (“IPR”) in and to the DevTools and all of their derivative works, modifications and improvements, are retained by Matrikon or its licensors and are our confidential information. The operation and performance of the DevTools (including results of evaluation or trial) are our confidential information. If you provide any suggestions, comments or feedback regarding the DevTools, you hereby assign to us all right, title and interest in and to the same without restriction. You and your End Users shall not remove, modify or obscure any IPR notices on the DevTools. Nothing in this Agreement limits our right to develop or distribute products, software or technologies, even if competitive with the Dev Products that you may develop related to this Agreement.
Warranty; Disclaimer.
We warrant that the DevTools, as first delivered by us, will materially operate according to our published user documentation for 90 days after date we first provide them to you. Your sole remedy and our only liability for breach of this warranty is for us to use commercially reasonable efforts to repair or replace the non-conforming portion or, if we determine we cannot do so after reasonable efforts, refund fees paid (if any) for the non-conforming DevTools. This is the only warranty and only remedies we provide with respect to the DevTools. EXCEPT AS OTHERWISE INDICATED HEREIN, THE DEVTOOLS ARE PROVIDED “AS IS” WITH NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. WE ARE NOT RESPONSIBLE OR LIABLE FOR THE USE OR OUTPUT OF ANY DEVTOOLS OR ANY DEV PRODUCT BY YOU OR ANY END USER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL SUCH WARRANTIES INCLUDING MERCHANTABILITY AND FITNESS FOR PURPOSE. WE DO NOT WARRANT THAT THE DEVTOOLS WILL MEET YOUR REQUIREMENTS, WILL OBTAIN ANY RESULTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.
Limitation.
EXCEPT FOR BREACHES OF SECTIONS 4 (LICENSE), 6 (ACCEPTABLE USE), 10 (IP), AND LIABILITY FOR FEES PAYABLE, NEITHER PARTY WILL BE LIABLE FOR INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, REVENUES OR DATA. The following are Exclusions from the limitation of liability in the Agreement: breach of Section 4 (License), 6 (Acceptable Use), 8 (no distribution) or 10 (IP).
Indemnification.
You will, at your cost and expense, defend, indemnify and hold harmless us and our Affiliates and sub-contractors, and licensors from and against all losses, awards and damages (including attorneys’ fees): (a) arising out of claims by third parties relating to your creation, use or distribution of the Dev Products where such claims do not arise solely out of or relate solely to DevTools incorporated in the Dev Products; (b) arising from or related to your breach of any agreement with End Users of the Dev Products; or (c) arising from or related to any breach of this Developer License by you, any Developer or any responsibility of yours under this Developer License. You shall have the right to control the defense and/or settlement of each claim and we shall provide reasonable assistance at your request and expense; provided that you shall not settle any claim without our prior written consent, not to be unreasonably withheld.
Insurance.
You will provide and maintain insurance policies throughout this Agreement with carriers with a minimum “A -, X” by AM Best or equivalent rating agency. Such policies will (A) have the following limits: (i) Workers’ compensation insurance as required by law for all employees; and Employer’s Liability insurance in an amount not less than $1,000,000 per accident/per employee. Such insurance shall provide coverage in the location in which the work is performed and the location in which the Customer is domiciled; (ii) Commercial general liability insurance, on an occurrence basis, including premises, products/completed operations, personal injury, and contractual liability, at a minimum combined single limit for bodily injury and property damage of $5,000,000 per occurrence and in annual aggregate; (iii) Business automobile liability insurance, covering all owned, rented, leased, non-owned and hired vehicles used in the performance of the work with a combined single limit for bodily injury and property damage of $5,000,000 per occurrence; (iv) “All Risk” Property and/or Cargo Insurance covering all of Customer’s equipment, property and tools used in the services and property which is subject to the risk of loss provision (Shipping Terms, Title, and Risk of Loss) outlined in this Agreement. Such insurance shall cover all property at full replacement value; (v) Professional Liability Insurance with a minimum limit of $5,000,000 per claim providing coverage for Customer’s errors and omissions in connection with the performance of Customer’s services during and for a period of at least three years after completion of said services; (v) Professional liability including technology errors & omissions insurance with a minimum limit of $5,000,000 per claim providing coverage for errors, omissions, or negligence in connection with the performance of Customer’s professional/technology based services or the failure of a technology product provided by Supplier to perform as intended, for a period of at least five (5) years after completion of said services or usable life of the product. The Professional liability coverage required shall also include cyber liability coverage with computer network security liability and privacy liability coverage; (vii) Environmental Impairment/Pollution Legal Liability Insurance including coverage for contractual liability assumed in this Agreement with limits of not less than three million dollars ($3,000,000) per occurrence and six million dollars ($6,000,000) aggregate; and (viii) it is the responsibility of the Customer to carry any other insurance required by law in the territory, state or jurisdiction where services provided in this Agreement are to be performed; (B) require the carrier to notify Matrikon at least 30 days prior to any expiration or termination; and (C) name Matrikon as an additional insured.
Miscellaneous.
This Developer License takes precedence of any other terms of the Agreement in relation to the DevTools and Dev Products.