Mettler-Toledo End User License Agreement (EULA) for Software - METTLER TOLEDO

Mettler-Toledo End User License Agreement (EULA) for Software

IMPORTANT-READ CAREFULLY: This license agreement ("EULA") is an agreement between you ("you") and us, Mettler-Toledo group company ("MT") identified on your license entitlement documentation for use of the software you obtained from MT ("License Documents") or in the absence thereof on the quote, order acknowledgment, service agreement, invoice, or other order document between you and MT ("Order Documents").

Software ("Software") means hereby software provided in an executable form by MT to you, either as an integral part of equipment or as a standalone product. The right to use the Software is made available to you only on the terms and conditions of this EULA.


By installing, copying, or otherwise using all or any portion of the Software (whichever occurs first), you agree to be bound by the terms of this EULA. The terms of this EULA apply to future offers and deliveries of the Software provided to you, without a repeated express reference. Terms and conditions that are different or changed from this EULA do not apply. Terms or conditions included on your forms, including your standard terms and conditions of purchase and documents presented to MT's field service representatives, are not part of this contract. Unless agreed specifically otherwise in the License Documents/ Order Documents, the terms of this EULA will supersede any inconsistent or contrary terms with respect to the Software contained in any other MT terms and conditions that may apply to a particular transaction or equipment sale/service agreement with MT. The standard commercial sale and service Terms & Conditions are available under www.mt.com/terms.


If you do not agree with the terms of this agreement, you are not authorized to install, copy or use the Software. All rights not expressly granted to you in this agreement are reserved to MT.


1. OWNERSHIP, LICENSE, USE


1.1. OWNERSHIP AND COPYRIGHT - All title and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the Software), the accompanying printed materials, any customer initiated enhancements and any copies of the Software are owned by MT or its suppliers. The Software is protected by copyright laws based on national legislation and international treaty provisions.


1.2. GRANT OF LICENSE -
You are granted the non-exclusive and non-transferable right to use the Software solely for the operation of your business and in accordance with the License Documents/ Order Documents (the foregoing constituting the "License"). For the avoidance of doubt, any MT software is licensed, not sold.


1.3. SCOPE OF LICENSE - The License is limited to the scope of functionality agreed in the License Documents/ Order Documents. The use of the Software and specific features of the Software is limited to the Software licensing model defined in the License Documents/ Order Documents and may include restrictions like maximum number of instruments, servers, users, stores, functions, features. The Software licensing model is specifically defined per Software. MT reserves the right to embed a software security mechanism within the Software to monitor usage of the Software to verify your compliance with the License, this EULA and the License Documents/ Order Documents. Such a security mechanism may collect and store data relating to the usage of the Software and the number of times it has been copied, or may communicate with a server/computer controlled by MT over any type of communications link to exchange communications and report data relating to the usage of the Software and the number of times it has been copied, for the purpose of monitoring compliance with this EULA and the License Documents/ Order Documents. MT reserves the right to use a hardware lock device, license administration software, and/or a license authorization key to control access to the Software or parts of the Software. It is strictly prohibited to take any steps to avoid or defeat the purpose of any such measures. Use of any Software without any required lock device or key eventually connected to a MT server/computer is strictly prohibited.
The factual possibility to access, activate or use certain Software functionality that is not covered by your License according to the License Documents/ Order Documents does not constitute a tacit extension of your License for such Software / software features/ functionality or create any other right. Any use beyond the functionality and terms set out in the License Documents/ Order Documents is prohibited and requires additional specific licensing.


1.4. TRIAL LICENSE AND DEMO LICENSE - "Trial License" means a license granted solely for the purpose of allowing a potential customer to evaluate the Software free of charge. "Demo License" means a payable license granted solely for the purpose of allowing a potential customer to evaluate the Software. An extension of a Demo License is deemed to be a purchase of the full license and is invoiced to you separately. Both Trial and Demo Licenses are provided to you on an "as is" basis, without any warranty or MT support services.

MT AND ITS THIRD PARTY SUPPLIERS MAKE NO WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, WITH RESPECT TO TRIAL OR DEMO SOFTWARE PROVIDED PURSUANT TO THIS AGREEMENT. In no event will MT and/or its third party suppliers be liable to you for any claims or damages whatsoever arising out of or related to this Trial or Demo License, regardless of the form of action, whether in contract, tort or otherwise.


Trial and Demo Licenses will extend for a limited period of time specified by MT. Trial Licenses cannot be extended beyond such period. Any Trial or Demo license will terminate effective immediately, if you fail to comply with any of the terms and conditions contained herein. Receipt by you of Releases or Service Packs will not, by implication, extend the term of the Trial and Demo License beyond the term specified for such License. Section 6.2 applies accordingly.


1.5. INSTALLATION AND USE - You may only install/ implement the Software in accordance with our installation manuals and product related manuals or online manuals made available to you. If the software is made available to you via an electronic download or a physical shipment of a media, you may make copies of the Software solely for archival purposes in support of your use of the Software. You may not reproduce or distribute the Software in any other way, especially commercial use like rental or leasing is prohibited, unless otherwise specifically stipulated in the License Documents/ Order Documents.


It is your sole responsibility to install and implement any Software, as well as a new Release or Service Pack of the Software and to ensure any necessary data conversion and to execute any kind of required changes to the configuration or the customization of your own equipment and software, including ensuring the compatibility of any additional equipment or software with MT's Software.


You will, at your expense, obtain any necessary permits and consents required to install the Software at your site. If you have purchased MT installation services, MT will install the Software, or cause it to be installed in accordance with mutually agreed specifications and timeframes. If the installation requires remote or on-site support by qualified service technicians and / or special tools provided by MT or its representative, you will be notified accordingly. It is your responsibility to purchase any kind of required installation services before any installation attempt.


2. THIRD PARTY AND OPEN SOURCE SOFTWARE


2.1. THIRD PARTY SOFTWARE - The Software which is distributed to you may include various third party software components or software services ("Third Party Software") which are provided under separate license terms (the "Third Party Terms"). Information regarding Third Party Software included in the Software is available for your information on our website at www.mt.com/licenses.

You are permitted to use the Third Party Software in conjunction with the Software, provided that such use is consistent with the terms of this EULA and the Third Party Terms. You may have broader rights to use the Third Party Software under the applicable Third Party Terms. Nothing in this EULA is intended to impose further restrictions on your use of the Third Party Software in accordance with any Third Party Terms.


2.2. OPEN SOURCE SOFTWARE - Software may use or include one or more of the open source software components listed in the open source attribution file, which is available at www.mt.com/licenses. Please refer to the open source attribution file for the open source license disclosures and pertinent terms. Use of the open source software constitutes your agreement to abide by the open source software license terms.


3. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS


3.1. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY -

You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.


3.2. SUPPORT SERVICES -
MT or a member of the Mettler-Toledo group of companies may provide you with support services related to the Software ("Support Services"). Use of Support Services is governed by the corresponding support agreement ("Software Support Agreement"). Any supplemental software provided to you as part of the Support Services shall be considered part of the Software and subject to the terms and conditions of this EULA. By entering into a Software Support Agreement with a member of the Mettler-Toledo group of companies, you agree to allow the company identified in such Software Support Agreement and other members of the Mettler- Toledo group of companies or its representative to retrieve information from the Software and/or product with regards to the installed base (e.g. serial number, software version) and to the product configuration and performance (e.g. Product configuration parameters, profiles, data or files; error, performance, change and other data logs produced by the Software) to the extent necessary for executing service interventions.


3.3. RETRIEVAL AND USE OF DATA - Technical and other information, like installed base data (types, serial number, software version, IP-address, location) or performance data (wearing parts, online-offline, events and notifications) may be retrieved by or provided to MT or a member of the Mettler-Toledo group of companies. MT or other members of the Mettler-Toledo group of companies may use such information during registration or operation of the Software, for customer support and for internal business purposes, including product development and sales/ marketing activity in compliance with applicable laws. MT and members of the Mettler-Toledo group of companies will not divulge such information to third parties in a manner that allows personal identification.


3.4. INTERFACES/ THIRD PARTY SOFTWARE -
MT or a member of the Mettler-Toledo group of companies may offer you Software interfaces that enable you to interact with the Software via applications or other software of you or third parties. Nothing herein or the provision of such interface constitutes a legal right or claim to such service, and MT or a member of the Mettler-Toledo group of companies may cease to provide such interfacing and/or service at any time.


The use of such third party interfaces shall not be governed by this EULA and MT or a member of the Mettler-Toledo group of companies is not responsible for any third party software or any interfaces of you or third parties, and/or for any loss of or damage to such third party software or interfaces, unless provided for under applicable mandatory law.


If the Software includes a connectivity module based on a standard protocol, MT or a member of the Mettler-Toledo group of companies is not responsible for the operation and functionality of any third party interfaces connecting to this module or the overall system in which MT Software is integrated, if the third party interface was not supplied by MT.


4. SOFTWARE MAINTENANCE


4.1. DEFINITION OF SERVICE PACKS AND RELEASES - A service pack is a minor revision to Software that contains bug fixes and may contain minor feature enhancements for already supported applications and use cases, generally provided to all other users of the same version of the Software that you have been licensed to use under this EULA ("Service Pack"). MT uses its best efforts to procure that a Service Pack, when made available, is compatible with the current release (i.e. it does not disrupt the current License and does not require a data conversion). The current Release is the most recent Release made available by MT.


A release is a major revision to the Software that provides new functionality, or supports applications and use cases that are not covered by, and/or may not be compatible with the previous revision ("Release"). New Releases may not be backwards compatible with previous Releases and may require some separate data conversion.


For the avoidance of doubt, MT may determine upon its sole discretion, if a software package provided constitutes a Service Pack or Release.


The rights and limitations of this EULA also govern any Service Packs and Releases of the Software.


4.2. ENTITLEMENT TO SERVICE PACKS AND RELEASES AND ERROR CORRECTIONS -

MT will provide Service Packs under a valid Software Support Agreement for all Releases issued within any 12-month period and in any event for the current and previous Release of the Software.


You qualify for free of charge Service Packs for Critical Errors to the licensed Software, generally issued to all other customers, regardless of a Software Support Agreement being in place. A "Critical Error" is a failure of the Software to conform in a material respect to the functionality outlined in the MT documentation for the Software. MT will provide Service Packs for Critical Errors for the current Release of the Software only.


Releases in general and Service Packs for non-Critical Errors are payable. They are provided under a valid Software Support Agreement only as set out in the terms of such agreement.


MT will use commercially reasonable efforts to address errors in the Software by issuing Service Packs. You must provide MT with such assistance and equipment as is reasonably necessary for MT to perform its obligations under the Software Support Agreement remotely, including, without limitation, detailed reporting of errors, screen shots, instructions on how to reproduce errors, access to the database and appropriate remote access to your system.


In the case of an error, you must provide MT with a detailed, written description and documentation of the suspected error. MT will investigate the facts and circumstances related thereto and you must cooperate with MT's investigation. If during these investigations your proprietary data in or produced by a MT product or a 3rd Party product connected to a MT product in your application is required, this data will be used as set out in 3.3 above.


5. WARRANTIES AND DISCLAIMER


5.1. DISCLAIMER
- The Software and any related documentation is provided to you ''as is". You are solely responsible for selection of the Software and components to achieve your intended results or for particular applications and systems.


If it is properly installed according to specifications and system requirements, MT warrants the Software will perform substantially the functions described in the MT documentation or as otherwise agreed in writing. MT does not warrant that the Software is error-free; that you will be able to operate the Software without interruption; that third party interfaces or systems connected to the Software will operate without interruption; that the Software will be free of vulnerability to intrusion or attack; or that data generated or used by the Software is stored in a way that prevents loss or corruption.


5.2. COMPATIBILITY -
MT uses commercially reasonable efforts to ensure that the Software is compatible with the latest technologies; however, MT makes no representation or guaranty that the Software will be or remain compatible with any particular technology at any given time. As such, MT reserves the right to choose the hardware and software technologies with which the Software shall be compatible and restrict the respective version or production period. Compatible software platforms are specified in the release note supplied with the respective version of the Software.


MT does not warrant that Service Packs and Releases are compatible beyond the release note provided with the respective Service Pack or Release. In particular, it is your duty to test the compatibility of the Software with your software environment before installation and to take precautionary measures to avoid any loss or damage to/of your data and/or software or related hardware environment.


5.3. FUNCTIONALITY LIMITATIONS -
Precision instruments and associated Software are tools intended to be used by trained professionals only. The output of precision instruments and associated Software are not substitutes for your professional judgment. Persons using the Software are responsible for the supervision, management and control of the Software. This responsibility includes, but is not limited to, the determination of appropriate uses for the Software and the selection of the Software and other programs to achieve intended results. Persons using the Software are also responsible for establishing the adequacy of independent procedures for testing of the reliability and accuracy of instruments operated with the Software, the Software itself, and any program output.


5.4. LIMITED WARRANTY -
If the Software is or becomes defective or unusable due to faulty design or incorrect manufacture within 90 days after you were granted access to the Software, MT undertakes at your written request, at its sole discretion, either to provide you with a performing copy of the Software or to refund you the purchase price and terminate this agreement. Except as may be agreed otherwise in writing, MT provides no warranty for Software specifically developed, amended, or customized for you.


5.5. NO OTHER WARRANTIES -
MT expressly disclaims any further warranty for Software including warranty of any kind, whether express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. The entire risk arising out of use or performance of the Software remains with you.


5.6. NO LIABILITY FOR DAMAGES -
In no event shall MT or its suppliers be liable for any damages whatsoever including, without limitation, consequential damages, incidental damages, indirect damages, punitive damages, liquidated damages, damages for loss of data, loss of business profits, business interruption, loss of business information, or any other pecuniary loss arising out of the use of or inability to use this Software, even if MT has been advised of the possibility of such damages. Should, however, applicable mandatory law prohibit the exclusion or limitation of liability for any such damages by compulsory law, the above limitation shall apply to the extent permitted by such law and this clause shall be adjusted accordingly.

 

5.7. APPLICABILITY TO FUTURE RELEASES AND SERVICE PACKS - This section 5 also applies to any future Releases and Service Packs provided by MT or a member of the Mettler-Toledo group of companies.


6. MISCELLANEOUS


6.1. CONFIDENTIALITY -
You acknowledge and agree that the Software was developed at considerable time and expense by MT and is confidential to MT and/or third parties. You agree to maintain the Software in strict confidence and not to disclose or provide access thereto to any unauthorized person.


6.2. TERMINATION -
If you fail to comply with the terms and conditions of this agreement, without prejudice to any other rights, MT may terminate this EULA or suspend the license in full or in part without any liability obligation, until you comply with your duties in accordance with this EULA. In case of termination, regardless of the License type, your License is void and you may not use the Software any longer and must destroy all copies of the Software and all of its components within 10 days after termination. You must at your expense, (i) return to MT the original and all tangible copies of the Software in all forms, and any associated hardware lock devices, (ii) destroy all soft copies of the Software, and (iii) certify to MT in writing that such obligations have been fulfilled.


6.3. TAXES -
You will, in addition to any licensing fee or other amounts agreed under this agreement, remit directly to the appropriate tax authorities, or pay to or reimburse MT, as applicable, all applicable taxes, assessments, duties, permits, fees and other charges of any nature or kind ("Taxes"). You are solely responsible for any Taxes incurred by you or entities directly or indirectly under your control ("Affiliates") in relation of this agreement, due for example for the purchase or use of Software licenses by you or your Affiliates as well as the distribution of Software to you or your Affiliates. The obligations set out in this paragraph shall apply regardless of such Taxes being designated, assessed or levied in any particular way, including, but not limited to sales and use taxes, value added taxes, personal property taxes, and withholding taxes, but shall not include taxes based on the net income of MT. Your payment obligation shall also include without limitation any penalties, interest, fees or other expenses, if any, incurred as the result of any such Taxes not being paid at the time or in the manner required by law and resulting of your action or inaction. Such amounts shall be based upon the respective applicable tax base and circumstances deemed relevant by applicable tax laws and regulation. If you are exempt from any Taxes applicable to this agreement or otherwise deem yourself not subject to respective Taxes, you must provide in good faith to MT a valid and executed exemption certificate, direct pay permit or any other document required by respective tax administrations. Failure to provide such exemption documentation, for whatever reason, will result in Taxes and any associated fines being charged to you, if applicable. If you are required by law to make any deduction or to withhold from any sum payable directly to MT hereunder, you shall promptly effect payment thereof to the respective tax authorities, and shall also promptly provide MT with official tax receipts or other evidence issued by the applicable tax authorities sufficient to establish that the Taxes have been paid and to enable MT to support a claim for income tax credits for such payments at MT's discretion. Failure to provide official tax receipts or other evidence of payment shall result in you paying directly to MT such amounts deducted or withheld from the original payment.

You must also support MT in good faith in minimizing the withholding rate to the extent applicable under a respective double taxation treaty by providing appropriate documentation.


6.4. TRADE COMPLIANCE -
The Software and related technology may be subject to EU, U.S. and other jurisdictions export or import control laws and regulations. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Software and related technology and Licenses, as may be required. Especially you have to ensure that your installation location is compliant with relevant export or import regulations before starting the initial electronic download or the initial installation attempt. If you wish to disclose to MT any information that is subject to E.U., U.S., or other applicable export restrictions, including without limitation the U.S. International Traffic in Arms Regulations (ITAR), or information that is controlled under the Export Administration Regulations (EAR) for a "Reason for Control" other than "Anti-terrorism" as defined in the U.S. Commerce Control List, you will notify MT in advance of each instance of disclosure, that such information is subject to such export restrictions.


You will indemnify and hold MT harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including, but not limited to, attorney's fees) arising from or relating to any breach by you or your Affiliates of aforementioned obligations.


6.5. APPLICABLE LAW - PLACE OF JURISDICTION -
The performance of the parties to this EULA, and the relationship between the parties, is subject to the applicable laws of the country where the MT office identified on the License Documents/ Order Documents is located; if the MT office identified on the License Documents/ Order Documents is located in the United States of America, the laws of the State of Delaware apply. The exclusive venue for claims arising under this agreement is the court with competent jurisdiction at the seat of the MT office identified on the License Documents/ Order Documents; if the MT office identified on the License Documents/ Order Documents is located in the United States of America, the courts of the State of Delaware are the exclusive venue. However, MT reserves the right to initiate court proceedings against you at any other court of competent jurisdiction, especially for injunctive relief. The United Nations Convention on Contracts for the International Sale of Goods as well as conflict of laws rules are explicitly excluded.



METTLER-TOLEDO End-User License Agreement for Software (EULA)           Version 3.0

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