License Terms and Conditions

ATTENTION: YOU NEED TO SCROLL DOWN TO THE END OF THIS END USER LICENSING AGREEMENT (“EULA”) BEFORE YOU CAN AGREE TO THIS EULA AND CONTINUE WITH THE USE AND INSTALLATION OF ASCEND®.

IMPORTANT: This is a legal agreement between you (the licensee, end user, customer, company or employee using this product and service for the benefit of a company) and OrionMagnetics, LLC (“OrionMagnetics”), the licensor. YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE ANY LICENSED SOFTWARE CAN BE DOWNLOADED, INSTALLED OR USED. BY CLICKING THE “ACCEPT” BUTTON, OR BY USING ANY LICENSED PRODUCT OF ORIONMAGNETICS, YOU ARE CONFIRMING THAT 1) YOU HAVE READ THIS AGREEMENT, 2) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, 3) YOU ACCEPT THE TERMS OF THIS AGREEMENT, AND 4) THAT THE ELECTRICAL POWER EQUIPMENT, SYSTEMS OR HARDWARE MODELED IN ASCEND® HAVE BEEN AND ARE CURRENTLY:

  • (a)MAINTAINED AND PROPERLY TESTED PER THE MANUFACTURER’S RECOMMENDATIONS AND GUIDELINES, AS WELL AS ALL APPLICABLE INDUSTRY STANDARDS;
  • (b)IN PROPER WORKING ORDER;
  • (c)MANUFACTURED TO ALL APPLICABLE AND GOVERNING INDUSTRY DESIGN AND MANUFACTURING STANDARDS, SUCH AS IEEE AND IEC STANDARDS;
  • (d)SUITED TO PERFORM IN ACCORDANCE WITH THEIR ORIGINAL DESIGNED FUNCTION AND SPECIFICATIONS; AND
  • (e)CURRENTLY OR WILL BE APPLIED IN AN ELECTRIC POWER SYSTEM ACCORDING TO THEIR ORIGINAL DESIGN, FUNCTION AND INTENT.

IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, THEN CLICK “I DECLINE” AND EXIT THIS PAGE, THEREBY FORGOING ANY IMPLIED OR STATED RIGHT TO DOWNLOAD, INSTALL OR USE THIS LICENSED SOFTWARE. YOU MAY RETURN THIS SOFTWARE AND ASSOCIATED LICENSING KEY WITHIN 30 DAYS FROM THE DATE OF PURCHASE TO ORIONMAGNETICS FOR A FULL REFUND. USE THIS LICENSED SOFTWARE ONLY IF YOU AGREE TO THE TERMS OF THIS AGREEMENT.

  • GENERAL
    • 1.1.Ascend® (“Ascend”) by OrionMagnetics, LLC, is a proprietary software application specifically designed to meet the regulatory requirements and needs of industry, both public and private, that generate, transmit or distribute electrical power. With Ascend you will be able to determine the electrical transfer capacity of most electric power equipment and systems, and manage and store records of electrical power facilities, including their thermal ratings, to ensure compliance with local and national reliability standards and regulations. In the United States regulations and reliability standards pertaining to electric transmission systems are governed by agencies such as the North American Electrical Reliability Commission (NERC) and the Federal Energy Regulatory Commission (FERC). The use of Ascend, therefore, requires you to be familiar with the industry standards referenced in this software. The mathematical principles used in Ascend are based on documented and accepted industry standards for equipment used in the transfer of electric power. It is therefore also necessary for you to fully understand all industry and regulatory standards referenced in Ascend and to have a complete understanding of the formulas and algorithms used in these standards.
    • 1.2.OrionMagnetics Ascend®, version 1.0 (“software” or “licensed software”) from OrionMagnetics is licensed on a single user basis, single server basis or a hub and spoke server basis. OrionMagnetics uses a hardware device connected through the universal serial bus (USB) connection of your computer or server (“USB License Key”) for license control. Depending on the basis, each purchased license comes with one (1) USB License Key (dongle) which will enable the software. You will only be able use and access the software if this USB License Key is physically connected to a computer or server that has the Ascend software installed and corresponding license file. The USB License Key is preprogrammed by OrionMagnetics with the appropriate license information and regulates access to the software.
    • 1.3.“Software” means the software product accompanying this EULA and the content therein, including but not limited to the associated data, source code, user manuals, user documentation, application interfaces, patches, updates, upgrades, improvements, enhancements, fixes, revised versions, licensing files and USB License Key.
    • 1.4.This software and the methods, processes and techniques used are the proprietary intellectual property of OrionMagnetics and are protected by U.S. patent (pending), copyright, trade secret and trademark laws and U.S. and international treaties. The software and upgrades, and copies of software, and any accompanying printed materials, are owned by OrionMagnetics.
    • 1.5.OrionMagnetics®, OrionMagnetics Ascend® and other trademarks contained in this software are trademarks or registered trademarks of OrionMagnetics, LLC, in the United States. Third party trademarks, trade names, product names and logos are the trademarks or registered trademarks of their respective owners.
    • 1.6.You may not remove or alter any trademark, trade names, product name, logo, copyright or other proprietary notices, legends, symbols or labels in this software. This EULA does not authorize you to use the name or any trademarks of OrionMagnetics or its licensors.
  • LICENSE GRANT
    • 2.1.OrionMagnetics is and shall remain the owner of all intellectual property rights in this software (including without limitation: methods, processes and techniques, copyrights, trademarks, trade secrets, source code, object code, pictures, photographs, animations, videos, audios, text and applets), and all subsequent versions or upgrades of this software. This software is licensed, not sold, to you on a non-exclusive, non-transferable, and limited basis. This EULA Agreement and the licensing rights you purchased from OrionMagnetics shall continue, absent termination or a breach of this EULA, for an indefinite term.
    • 2.2.You acknowledge that your possession, installation or use of this software, licensing files or USB License Key does not transfer any title to you, and that you do not acquire any rights, except for the license expressly granted in this EULA, to any of the software or intellectual property of OrionMagnetics. You further agree not to take any action to jeopardize, obstruct, limit or interfere with OrionMagnetics’ ownership of this software or its intellectual property rights.
  • DESCRIPTION OF FURTHER RIGHTS AND RESTRICTIONS
    • 3.1.Single User License. If you have obtained a single user license, then you are permitted to install as many copies of the software as necessary on multiple computers but will only be able to activate one (1) instance of the software per USB License Key purchased. This gives you the ability to control user access with the USB License Key since the USB License Key must be inserted into the computer before the user can access and use the software and user must be physically present at that computer and can run only one (1) instance of the licensed software. It also allows you to install the software on multiple computers, such as a desktop and a laptop, and move the USB License Key as necessary depending on what computer you are using at that time. You may not install this software on a server or simultaneously use the software on more than one computer at a time. Simultaneous use by multiple End Users utilizing a single USB License Key is prohibited. Simultaneous use of the software on a second computer requires an additional license.
    • 3.2.Single Server (Hub) License. You may install and use one (1) copy of this software on a single server or hub, and this server (hub) copy of this software may be used and accessed by multiple users. This allows for multiple End Users to concurrently and consecutively use and access the software utilizing a USB License Key installed on the server. The number of End Users allowed access and use of the software will be determined upon the number of licenses purchased from OrionMagnetics as specified in the Purchase Agreement.
    • 3.3.Replicated Server (Spoke) License. If you have purchased additional licenses for a hub and spoke configuration of the software, you may also install and use concurrently the replicated server (spoke) portion of this software on the replicated servers (spokes). The number of End User allowed access and use of the software will be determined upon the number and type of licenses purchased from OrionMagnetics as specified in the Purchase Agreement.
    • 3.4.Back-Up Copy. You may make one (1) copy of the software for back-up and archival purposes. If you make a backup or archival copy of this software or documentation, you must reproduce all copyright, trademark, and other notices that appear on the original copy.
    • 3.5.No Reverse Engineering. You may not (and may not allow anyone else to): (i) reverse engineer, decompile, disassemble, decode or otherwise attempt to access, derive or discover the source code of this software or any of its underlying algorithms, user interface techniques, or other ideas embodied in the software; or (ii) copy, reproduce, publish, modify, translate or create derivative works of the source code or of any part of this software.
    • 3.6.No Derivative Use. You may not (and may not allow anyone else to) (i) use this software or its output to create, modify, or simulate programs for third parties or to develop or enhance any product that competes with an OrionMagnetics product; or (ii) have access to or use this software (such as in a timesharing, service bureau, or application service provider model) other than those End Users for which you have purchased a license.
    • 3.7.Transfers. You may not rent, lease, lend or further license this software. You may permanently transfer all of your rights under this EULA provided you retain no copies, you transfer all of the software and this EULA, and the recipient agrees to the terms of this EULA.
    • 3.8.USB License Key. The use of this software requires a “USB License Key” from OrionMagnetics (or its authorized reseller) for full functionality. OrionMagnetics uses KEYLOK® Fortress (by Microcomputer Applications, Inc.) for its USB License Key. You agree not to tamper, circumvent, disable,“hack”, “crack”, decode or otherwise override this USB License Key, or attempt to do so, including but not limited to resetting the CPU time in order to extend the License Term or using a false host ID number or using an additional virtualized copy or copies of the host ID number to enable unauthorized copies of any USB License Key. You are required to ensure that no unauthorized access can be made to the USB License Key and are prohibited from publishing, distributing or disseminating it.
    • 3.9.End Users. You must ensure that your End Users or employees use this licensed software only while at their primary duty locations and in compliance with this EULA. You may allow an End User or employee, whose primary duty location is their residence, access to this software from their primary residence through a secure network that requires a secure ID card or other protective security safeguards.
      • 3.9.1.If you have purchased the right to use this software over your wide area network (commonly referred to as a “WAN”), then you may allow End Users access to this software at any of your facilities that are located on the same continent where the server (hub) license is located.
      • 3.9.2.Only if you have purchased the right to use this software over a global WAN are you permitted to allow End Users access to this software at any of your facilities worldwide.
  • EVALUATION LICENSES
    • 4.1.If you obtain a license for this software solely for evaluation purposes (“Evaluation License”), then you may use this software only for purposes of evaluating it and deciding whether or not to purchase a license. You shall not use evaluation software for production or pre-production purposes or any other commercial use for the benefit of your customers or company. Evaluation software may contain an automatic disabling mechanism or a time-out feature, after which time the software will cease operation or operate with limited functionality.
    • 4.2.Evaluation copies of the software are provided “AS IS” and, therefore, the warranty and indemnification provisions in this EULA do not apply to any evaluation licenses. All other provisions, however, still apply.
    • 4.3.If you breach the forgoing restrictions, then you shall pay to OrionMagnetics a license fee equal to OrionMagnetics’ list price plus the maintenance fee for the commercial version of the software. You agree that damages for such a breach would be difficult to assess, and such payment represents a reasonable assessment of the potential damage to OrionMagnetics. You recognize and agree that this amount is a reasonable liquidated amount and not a penalty.
  • SUPPORT SERVICES
    • 5.1.Limited Support. OrionMagnetics provides limited support for this software to assist with the installation, initialization and initial access to the software. Support is only provided during normal business hours, Monday through Friday, between the hours of 8:00 AM and 6:00 PM Eastern time, excluding State and Federal holidays.
    • 5.2.Upgrades. If the software is labeled or otherwise identified by OrionMagnetics as an “upgrade,” you must be properly licensed to use the full version of the software that is being upgraded. Software that is labeled or otherwise identified by OrionMagnetics as an upgrade, replaces and/or supplements the software previously licensed from OrionMagnetics. Any replacement or upgrade software is subject to the terms of this EULA.
    • 5.3.Twelve (12) Month Complimentary Maintenance Services. The initial purchase of any Ascend® license entitles you to twelve (12) months of Maintenance Services (beginning from the date of initial purchase) as specified in Section 5.4 of this EULA. If you do not renew or purchase a Maintenance Service Agreement beyond this initial complimentary 12-month period, then Maintenance Services as provided in Section 5.4 of this EULA will end and be terminated. OrionMagnetics will not provide any further maintenance services, absent timely renewal as specified in Section 5.7, for any software.
      • 5.3.1.Annual Maintenance Services for this software beyond the initial complimentary 12-month period is provided under a separate Annual Maintenance Service Agreement.
      • 5.3.2.Acceptance of any Maintenance Service Agreement requires acceptance of this EULA. Any supplemental software related materials that you purchased from OrionMagnetics as part of any maintenance services are also subject to the terms and conditions of this EULA.
    • 5.4.Annual Maintenance Service Fees. Payment of a yearly maintenance service fee for each software license is calculated using a fixed percentage of the present cost of the license purchased. This fee applies to each license purchased. The percentage used to determine Maintenance Service Fees can change at any time without prior notice. You may negotiate an arrangement of discounted maintenance fees under certain circumstances. Maintenance fees are not mandatory, but do confer to the licensee the following benefits: (i) Live software and application support during regular business hours (U.S. Eastern Time); (ii) Replacement of damaged or broken USB License Keys upon receipt of the original damaged or broken USB License Key; and (iii) Software updates, upgrades, extensions, enhancements, fixes or patches.
    • 5.5.Replacement of any lost, misplaced, destroyed or stolen USB License Keys are not covered under any Maintenance Service Agreement or this EULA. OrionMagnetics will not, under any circumstances, replace a lost, misplaced,destroyed or stolen USB License Key(s). It is recommended that you obtain private insurance or purchase OrionMagnetics’ USB License Key replacement plan. Annual Maintenance Service Plans that include replacement for lost, misplaced, destroyed or stolen USB License Key are available through OrionMagnetics.
    • 5.6.Maintenance Services, if purchased as part of this software, is subject to the following conditions:
      • 5.6.1.You must have purchased OrionMagnetics’ Maintenance Services for such software (unless it is included in the Purchase Agreement);
      • 5.6.2.You must appoint a qualified contact person to interface with OrionMagnetics regarding Maintenance Services, and identify such person to OrionMagnetics in advance of requesting maintenance support;
      • 5.6.3.The qualified contact person you designate must be trained in the use of this software;
      • 5.6.4.You must provide OrionMagnetics with access to the information and system facilities necessary to provide you with Maintenance Services;
      • 5.6.5You must follow the directions provided by OrionMagnetics to resolve any technical problems;
      • 5.6.6You must follow the operating instructions and procedures for this software as specified in the documentation provided by OrionMagnetics; and
      • 5.6.7You must promptly notify OrionMagnetics of any error or other problem in the licensed software.
        • 5.6.7.1.EXCLUSIONS. OrionMagnetics will have no obligation to provide Maintenance Services for any software that is damaged, modified or decoded (by anyone other than OrionMagnetics), or incorporated into other software, or installed in any computing environment not supported by OrionMagnetics; or for any version of OrionMagnetics’ software other than the latest and immediately preceding version; or for any problems caused by your negligence, abuse, misuse, or by any cause beyond OrionMagnetics’ reasonable control. In addition, OrionMagnetics will have no obligation to provide Maintenance Services for any software that is not current and has not received all updates, upgrades, extensions or enhancements within the proceeding twenty-four (24) months.
    • 5.7.Reinstatement of Maintenance Services. If Maintenance Services have ended and you do not purchase or renew Maintenance Services for your particular license within twenty-four (24) months of Maintenance Services ending, or if services were terminated for any reason for twenty-four (24) months or longer, you may be permitted to reinstate or enroll in Maintenance Services, at OrionMagnetics’ sole option, provided that: (i) OrionMagnetics offers Maintenance Services to its customers generally for the software in question, (ii) you pay OrionMagnetics all applicable Maintenance Services fees, and (iii) you purchase and pay for all necessary upgrades, updates, extensions or enhancements. Maintenance Services is only provided for upgraded or updated software. If you fail to purchase or renew Maintenance Services for your particular license more than sixty (60) months after Maintenance Services have ended or were terminated, then you will be required to obtain a full license for Ascend®, paying the full cost to obtain the most current software version.
    • 5.8.ViewConnect. If you wish to permit OrionMagnetics to deliver Maintenance Services through the use of a shared customer desktop, you must download and install the ViewConnect Tool and related publicly-available, third-party software modules. You are not required to use the ViewConnect Tool, but if you choose to do so, you have the nonexclusive right to use the ViewConnect Tool only to enable OrionMagnetics to remotely access your computer system for the purpose of providing Maintenance Services. Your rights to the third-party software modules are separately described in their accompanying license terms.
      • 5.8.1.Disclaimer Regarding ViewConnect. The ViewConnect Tool is licensed “as is”, and OrionMagnetics makes no warranties, express, implied, statutory, or otherwise, regarding the ViewConnect Tool. OrionMagnetics disclaims all liability of any kind in connection with such third-party software modules, and specifically disclaims any warranty of noninfringement, title, merchantability, or fitness for a particular purpose, or any warranty arising from a course of dealing or usage of trade both with respect to the ViewConnect Tool and the third-party software modules.
    • 5.9.Training Services and Application Support Not Included. This EULA does not give you any right to obtain any training for the software nor does it give you any right to obtain information on the application of the software with regards to your particular business. OrionMagnetics offers Training Services and Application Support, which may be purchased and ordered through OrionMagnetics. Annual Maintenance Services Agreements are available that also include Application Support.
    • 5.10.Data Transfer and Conversion Services Not Included. This EULA does not give you any right to obtain any transfer or conversion of data so that it can be used with this software. OrionMagnetics offers data transfer and data conversion support on a case-by-case basis, which may be purchased and ordered through OrionMagnetics. Service Agreements are available that include data transfer and data conversion.
  • CONFIDENTIALITY
    • 6.1.Confidentiality Obligations. Both you and OrionMagnetics agrees to abide by the following confidentiality obligations with respect to the other party’s Confidential Information:
      • 6.1.1.To not disclose confidential information to any third party unless (a) the other party has given its specific and express prior written approval, (b) the disclosure is expressly allowed under this agreement, or (c) the disclosure is necessary to comply with a valid court order or subpoena;
      • 6.1.2.To not use confidential information for any reason other than to exercise its rights and perform its obligation under this agreement; and
      • 6.1.3.To protect confidential information from unauthorized dissemination in the same manner as that party protects its own confidential information and, in any event, with reasonable precautions (which include limiting access to employees and contractors on a “need to know” basis).
    • 6.2.Mandatory Disclosures: If you believe you must disclose OrionMagnetics’ confidential information in order to comply with a valid court order or subpoena, you must: (i) promptly notify OrionMagnetics and (ii) cooperate with OrionMagnetics if OrionMagnetics chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed. OrionMagnetics will do the same for you if it believes it must disclose your confidential information in these circumstances.
    • 6.3.Additional Obligations. In addition to your general obligation of confidentiality, you must take the following steps to help prevent any unauthorized access to or use of any of OrionMagnetics’ licensed products, software or documentation: (i) you must ensure that each End User who is your independent contractor (not your employee) has access to and uses the this licensed software, documentation and USB License Key only while working on your physical premises or at your authorized duty location; and (ii) you must monitor each End User’s use (whether an employee or independent contractor) of this licensed software and USB License Key to ensure that the End User abides by the terms of this EULA.
    • 6.4.“Confidential Information” includes but is not limited to OrionMagnetics’ (i) intellectual property, goods, software, technology, software, source code, underlying algorithms, interface techniques, application interfaces or technical data; (ii) any USB License Key or passwords delivered in order to operate any of the software, updates, upgrades, improvements, enhancements, fixes, and revised versions; (iii) any documentation accompanying this software, user manuals, user documentation, invoices, purchase agreements, pricing information; and (iii) any business, technical or training information of a party that is marked or identified either in writing or orally as “confidential” or “proprietary.” The existence of this EULA and the nature of the business relationship between you and OrionMagnetics is not considered Confidential Information.
  • OPEN SOURCE SOFTWARE
    • 7.1.This license software may be delivered with software that is subject to open source licensing terms (“Open Source Software”). If the Open Source Software license also requires source code to be made available, you may contact OrionMagnetics for information on how to obtain the source code. You agree that all Open Source Software shall be and remains subject to the terms and conditions under which it is provided.
    • 7.2.Any Open Source Software is provided “AS IS” and WITHOUT ANY WARRANTY OF ANY KIND, AND ORIONMAGNETICS DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO OPEN SOURCE SOFTWARE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ORIONMAGNETICS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, LOSS OF BUSINESS GOOD WILL, COMPUTER FAILURE, PERSONAL INJURY, OR ANY OTHER LOSS), HOWEVER CAUSED.
  • THIRD PARTY SOFTWARE
    • 8.1.You acknowledge that portions of this software utilize, include or contain either embedded or non-embedded third-party software, including Microsoft SQL Server. All such third party software is licensed according to a separate license, terms and conditions; and, in addition to the obligations of this EULA, you acknowledge and agree to the terms of any third-party software that this software contains, utilizes or includes. OrionMagnetics makes no claim of ownership in or to third party software. The EULA for Microsoft SQL Server can be found at: http://www.microsoft.com/en-us/download/details.aspx?id=2803#overview.
  • FEES AND PAYMENT
    • 9.1.The fees for the products and services under this agreement will be identified in the Purchasing Agreement(s). You agree to pay the fees according to the payment terms in the applicable Purchasing Agreement.
    • 9.2.If the applicable Purchasing Agreement does not contain specific terms of payment, then payment of those fees will be due within 30 days of OrionMagnetics’ invoice. If you do not pay the fees by the scheduled due date, OrionMagnetics will have the right to withhold or revoke your license, seek a return of the USB License Key(s) and/or terminate this EULA and accelerate the due date of any amounts due and owing. You may not offset any amounts you believe OrionMagnetics owes you against any payments you make to OrionMagnetics under this agreement. You must make payments in U.S. dollars. If you do not pay the current amount due by the due date, a late payment charge of 1.5% per month or the highest rate permitted by law, whichever is less, will be assessed.
  • TAXES
    • 10.1.You will be solely responsible for paying taxes (such as sales, use, consumption, withholding, and value-added taxes and similar taxes) resulting from your purchase of any software license or your use of OrionMagnetics’ software, products or services. If OrionMagnetics is required by law to collect and remit any such taxes, then OrionMagnetics may invoice you for such taxes and you agree to pay the invoiced amount to OrionMagnetics. If you are required to withhold taxes from payments to OrionMagnetics, either because of the location where you use the licensed software or the location where you provide services, you may withhold only the minimum amount of taxes required. You must further promptly pay that amount to the appropriate tax authority and provide OrionMagnetics with an official receipt for the payment within 60 days of your tax payment.
  • LIABILITY
    • 11.1.We strive to keep Ascend® as error or bug free as possible. However, it is a general rule, or Murphy’s Law, that no software is ever completely error free, and the number of errors increases with the complexity of the program. Therefore, we do not guarantee or warrant that this software will run in every environment, on any machine, or together with any other application or software, without producing errors. Any liability for damage of any sort is hereby denied. It is highly recommended that you back up your data regularly.
    • 11.2.LIMITATION OF LIABILITY. For each product or service you license or purchase from OrionMagnetics under this agreement, OrionMagnetics’ total, cumulative liability to you, including breach of any alleged warranty or contract or any tort claims is limited to the amount of fees you paid for that product or service (regardless of the nature of the liability or the nature or number of claims giving rise to the liability) or U.S. $75.00, whichever is greater. TO THE EXTENT PERMITTED BY LAW, ORIONMAGNETICS WILL NOT, UNDER ANY CIRCUMSTANCES OR UNDER ANY THEORY OF LIABILITY, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, DIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, LOSS OF BUSINESS GOOD WILL, COMPUTER FAILURE, PERSONAL INJURY, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE INSTALLATION, USE OF OR INABILITY TO USE THIS SOFTWARE OR USB LICENSE KEY. YOU AGREE THAT ANY LIABILITY IS LIMITED TO THE LICENSE FEE YOU PAID OR U.S. $75.00, WHICHEVER IS GREATER.
    • 11.3.THE FOREGOING LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY TO ALL OF THE WARRANTIES AND DISCLAIMERS IN THIS EULA.
    • 11.4.The limitations of liability in this section are a fundamental part of this EULA and enables OrionMagnetics to provide products and services to you at lower prices. These limitations of liability are intended to apply even if an exclusive remedy is found to have failed of its essential purpose. OrionMagnetics, therefore, recommends that you evaluate this software in a controlled environment and without using critical data. Should you detect any errors prior to full implementation, you accept the risk and errors.
  • LIMITED WARRANTY
    • 12.1.Limited Warranty Period. For a period of 90 days from when OrionMagnetics delivers its licensed software to you, OrionMagnetics warrants that the software will perform in substantial conformity with the software documentation only when used on the correct platform and configuration and when used according to the instructions in the corresponding software documentation.
      • 12.1.1.This warranty shall not apply to any defect in the software that is caused by: (i) using or operating the software with an application or in an environment other than that which is recommended by OrionMagnetics, (ii) third party software or hardware, or (iii) your failure to implement all error corrections, fixes or patches OrionMagnetics issues. Further, this warranty will be void if you, or anyone else other than OrionMagnetics, modifies, alters or changes the software or attempts to do so.
    • 12.2.Warranty Claims. To claim a breach of this warranty you must notify OrionMagnetics in writing of any error(s) within the warranty period and provide OrionMagnetics with specific information for such error(s), so that OrionMagnetics can attempt to reproduce, diagnose, and correct the error(s).
    • 12.3.Exclusive Remedy. Your exclusive remedy for any breach of warranty shall be, at OrionMagnetics’ sole option, to either: (i) refund the fees you paid for this licensed software (not to exceed the suggested U.S. retail price) or U.S. $75.00, whichever is greater, (ii) use commercially reasonable efforts to correct the error(s) you have reported, or (iii) provide a replacement product that does not contain these error(s). If OrionMagnetics is unable to correct the error(s) or determines that it will not be feasible to do so and you do not want a replacement product, OrionMagnetics will then refund the fees you paid for this licensed software or U.S. $75.00, whichever is greater.THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION. This is the only warranty OrionMagnetics provides for the its licensed software. Except for this warranty, all licensed software products, documentation and services are provided “AS IS”.
  • DISCLAIMER OF WARRANTIES
    • 13.1.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, ORIONMAGNETICS DISCLAIMS ALL OTHER WARRANTIES (EXPRESS, IMPLIED, OR STATUTORY), INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR QUIET ENJOYMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. ORIONMAGNETICS DOES NOT WARRANT THAT THE SOFTWARE OR USB LICENSE KEY IS COMPLETELY ERROR FREE OR THAT IT WILL OPERATE WITHOUT INTERRUPTION.
    • 13.2.(USA ONLY) SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. AS A RESULT, THE ABOVE EXCLUSION WOULD NOT APPLY TO YOU. TO THE EXTENT IMPLIED WARRANTIES MAY NOT BE ENTIRELY DISCLAIMED BUT LIMITATIONS ARE ALLOWED BY APPLICABLE LAW, THEN ANY IMPLIED WARRANTY ON THE SOFTWARE IS LIMITED TO A NINETY (90) DAY PERIOD AND ALL THE REQUIREMENTS OF SECTION 12 (LIMITED WARRANTY) OF THIS EULA APPLY. IF APPLICABLE LAW REQUIRES ANY OTHER WARRANTIES WITH RESPECT TO THIS SOFTWARE, THEN ALL SUCH WARRANTIES SHALL BE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY AND ALL THE REQUIREMENTS OF SECTION 12 (LIMITED WARRANTY CLAIMS) OF THIS EULA APPLY. YOU MAY HAVE OTHER LEGAL RIGHTS, IN ADDITION TO THE LIMITED WARRANTY ABOVE, THAT VARY FROM STATE TO STATE.
    • 13.3.NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ORIONMAGNETICS, ITS DEALERS, AGENTS OR EMPLOYEES, SHALL CREATE A WARRANTY OR INCREASE THE SCOPE OF ANY WARRANTY (EXPRESS, IMPLIED OR STATUTORY) UNDER THIS EULA IN ANY WAY.
    • 13.4.NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ANY AND ALL DAMAGES REFERENCED ABOVE, ALL DIRECT OR GENERAL DAMAGES, AND DAMAGES FOR BREACH OF WARRANTY), YOUR EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF ORIONMAGNETICS, ITS AGENTS, EMPLOYEES, OWNERS, OPERATORS, OFFICERS AND DIRECTORS UNDER ANY PROVISION OF THE EULA SHALL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAID FOR THE LICENSED SOFTWARE OR U.S. $75.00, WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
  • CRITICAL SYSTEMS
    • 14.1.THIS SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS OR FOR ANY CRITICAL SYSTEMS REQUIRING FAIL-SAFE CONTROLS, OR WITH ANY SYSTEM WHERE MALFUNCTIONS CAN BE REASONABLY EXPECTED TO RESULT IN PERSONAL INJURY OR DEATH, OR DAMAGE TO TANGIBLE PROPERTY OR THE ENVIRONMENT, INCLUDING WITHOUT LIMITATION, THE MAINTENANCE OR OPERATION OF ANY NUCLEAR FACILITY, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT OR PATIENT CARE SYSTEMS, WEAPONS SYSTEMS OR OTHER APPLICATIONS REPRESENTING A SIMILAR DEGREE OF HAZARD. You agree to indemnify, defend and hold harmless OrionMagnetics, its owners, operators, officers, directors or employees for any claims or losses arising from the use of this software in activities or environments or on systems for which it is not intended.
  • BASIS OF BARGAIN
    • 15.1.The Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability set forth above are fundamental elements of the basis of this agreement between you and OrionMagnetics. OrionMagnetics would not be able to provide this software on an economic basis without such limitations.
  • INFRINGEMENT CLAIMS
    • 16.1.OrionMagnetics will, at its own expense, be entitled to defend (or at its sole option, settle) any claim asserted against you by a third party that any licensed software you obtained from OrionMagnetics under this agreement infringes upon any U.S. patent, copyright, trademark, or trade secret. OrionMagnetics will indemnify you for any damages you suffer and costs you reasonably incur that are directly attributable to any such claim which are assessed against you in a final non-appealable judgment or that OrionMagnetics agrees upon in a settlement.
    • 16.2.Conditions. OrionMagnetics’ obligation to defend and indemnify you with respect to a particular claim are subject to the following conditions:
      • 16.2.1.You must promptly give OrionMagnetics written notice of the claim;
      • 16.2.2.You must identify the specific licensed software at issue in the claim and indicate how the licensed software is utilized by you;
      • 16.2.3.You must give OrionMagnetics sole control and authority over the defense and settlement of the claim; and
      • 16.2.4.You must provide OrionMagnetics with all information you have regarding the claim and cooperate with OrionMagnetics when OrionMagnetics defends or attempts to settle the claim.
    • 16.3.Pro-Active Steps. If any licensed software from OrionMagnetics is, or OrionMagnetics believes is likely to become, the subject of a claim for which OrionMagnetics would be obligated to defend and indemnify you, then OrionMagnetics may, at its option, do any of the following:
      • 16.3.1.Obtain for you (at no cost to you) the right to continue using the licensed software as permitted by this agreement;
      • 16.3.2.
      • 16.3.3.If OrionMagnetics reasonably concludes that it will not be feasible to do either of the above, terminate your license for the licensed software and give you a prorated refund (based on how much of the License Term has elapsed) of the fees you paid for that license.
    • 16.4.Exclusions. OrionMagnetics will have no obligation to defend or indemnify you with respect to any claim that is based upon or is attributable to any of the following:
      • 16.4.1.There has been any modification, alteration or change made to this licensed software by anyone other than OrionMagnetics;;
      • 16.4.2.The combination or use of this licensed software with other products, processes, or materials that is either not supplied by OrionMagnetics or the use of which is unnecessary to the functionality, operability or use of this licensed software;
      • 16.4.3.You continue to engage in infringing activities after you were notified of the infringement or after OrionMagnetics informed you of a modification or workaround that would have avoided the infringement; or
      • 16.2.3.You use this licensed software in a manner not permitted by this EULA agreement.
    • 16.5.Burden of Proof. You will have the burden of showing to OrionMagnetics by clear and convincing evidence that the indemnification provisions above are applicable and that the exclusions are not applicable.:
    • 16.6.NO OTHER OBLIGATIONS. EXCEPT AS EXPRESSLY PROVIDED IN THIS EULA, ORIONMAGNETICS HAS NO OTHER OBLIGATIONS TO YOU, OR LIABILITY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT RELATED TO THIS LICENSED SOFTWARE OR DOCUMENTATION, INCLUDING WITHOUT LIMITATION ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, LOSS OF BUSINESS GOOD WILL, COMPUTER FAILURE, PERSONAL INJURY OR FOR ANY OTHER PECUNIARY LOSS.
  • EXPORT CONTROLS
    • 17.1.You agree that OrionMagnetics’ intellectual property, goods, software, and technology is subject to the export control laws and regulations of the United States and to foreign export laws and regulations, including but not limited to: the United States Export Administration Act and Export Administration Regulations (“EAR”) and the sanctions and regulations of the U.S. Department of Commerce, Bureau of Industry and Security; U.S. Department of Energy, Office of Fuels Programs; and the U.S. Department of Treasury, Office of Foreign Asset Controls. You agree that you will comply with any applicable United States and foreign export laws and regulations.
    • 17.2.Access to and use of OrionMagnetics’ intellectual property, goods, software, and technology is granted to you with the specific understanding and requirement that it is you and/or your company’s responsibility for ensuring full compliance with all applicable U.S. and foreign export laws and regulations. This includes an obligation to ensure that any individual having access to or using OrionMagnetics’ intellectual property, goods, software, or technology, who is not a U.S. citizen, is permitted access under applicable U.S. and foreign export laws and regulations.
    • 17.3.You further agree that you will not, directly or indirectly, export, re-export, trans-ship, transmit or transfer any of OrionMagnetics’ intellectual property, goods, software, technology, software, source code, underlying algorithms, user interface techniques, technical data or USB License Key to any prohibited person, country or national in violation of U.S. laws or regulations.
    • 17.4.In addition, you represent and warrant that neither you nor your company (or subsidiary or affiliates) nor any end-user with access to this licensed software, are located in any country (i) that is subject to a U.S. Government embargo, (ii) that has been designated as a “terrorist sponsoring” country by the U.S. Government, or (iii) has been listed on an U.S. Government list of prohibited or restricted persons, entities or countries, including the U.S. Treasury Department’s list of “Specifically Designated Nationals and Blocked Persons” or the U.S. Department of Commerce’s “Denied Persons List” or “Entity List”. You further represent and warrant that you, your company (or subsidiary or affiliates) or any end-user with access to this licensed software is engaged in activities related to weapons of mass destruction, including but not limited to activities related to the design, development, production, or use of: (1) nuclear materials, nuclear facilities, or nuclear weapons; (2) missiles or support of missiles projects; or (3) chemical or biological weapons.
    • 17.5.You further acknowledge that it is your obligation to make your own assessment of any applicable U.S. and foreign export laws and regulations and ensure compliance. You acknowledge and agree to promptly report to OrionMagnetics and appropriate U.S. authorities any access or use of OrionMagnetics’ intellectual property, goods, software, technology, software, source code, underlying algorithms, user interface techniques, technical data, or USB License Key that may be in violation of applicable U.S. export laws or regulations. OrionMagnetics strongly recommends that you consult with counsel concerning compliance with U.S. laws and regulations.
  • U.S. GOVERNMENT END USERS – RESTRICTED RIGHTS
    • 18.1.This licensed software and the documentation are provided with “RESTRICTED RIGHTS” and was developed at private expense and is a “commercial item” as defined in 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as used in 48 C.F.R. § 12.212. As a result, all U.S. Government end users acquire this licensed software only with those limited rights set forth in 48 C.F.R. §§ 12.212 (civilian agencies) and 227.7202-1, et seq. (Department of Defense) and subject to the license rights and restrictions described in this EULA. The U.S. Government may not, without the written permission of OrionMagnetics, release or disclose OrionMagnetics’ intellectual property, goods, software, technology, software, source code, underlying algorithms, user interface techniques, technical data, or USB License Key outside the Government, or use such information for manufacture, or authorize the use of such information by another party.
  • GOVERNING LAW – JURISDICTION
    • 19.1.This agreement is to be governed by the laws of the United States and the State of Connecticut and without regards to any conflict of law principles. You agree and consent that all disputes arising out of or in connection with this EULA shall be subject to the exclusive jurisdiction of and venue in the federal and state courts located within the State of Connecticut; and you irrevocably consent to the personal and exclusive jurisdiction and venue of these courts. In no case shall this EULA be governed by the United Nations Convention on Contracts for the International Sale of Goods.
  • TERMINATION
    • 20.1.Without prejudice to any of OrionMagnetics’ other legal rights, OrionMagnetics may terminate your software license if you fail to comply with the terms and conditions of this EULA.
    • 20.2.You have the right to terminate your software license only if OrionMagnetics breaches this EULA and either the breach cannot be cured or, if the breach can be cured, OrionMagnetics fails to cure the breach within 45 days after receiving from you written notice of the breach. A substantial deviation between the software and the written specifications in the corresponding documentation from OrionMagnetics will not be considered a breach of this agreement that would allow you to terminate your software license but it could give rise to a limited warranty claim.
    • 20.3.Consequences of Termination. If either you or OrionMagnetics terminates your software license, all Purchasing Agreements in effect at that time will also terminate. Whether you or OrionMagnetics terminates your software license, you will still remain obligated to pay any amounts due and owing to OrionMagnetics at that time. Further, when this agreement, a Purchasing Agreement or your software license is terminated, you must: (i) immediately cease all use of the licensed software and corresponding documentation, (ii) promptly return to OrionMagnetics or destroy all copies of the licensed software and corresponding documentation in your possession or control, (iii) remove all licensed software from all your devices, and (iii) certify in writing to OrionMagnetics that you have complied with these provision.
    • 20.4.Regardless of the cause for termination, sections 1, 6, 9, 10, 11, 13, 14, 15, 17, 18, 19, 20 and 21 of this EULA shall survive the termination of your software license, and shall remain valid and binding indefinitely. Further, any confidentiality or nondisclosure agreements that OrionMagnetics previously entered into with you will continue to remain in effect and according to their terms.
    • 20.5.Your right to use this software is conditioned upon your timely payment of the license fees due for the software and your compliance with the terms of this agreement.
  • MISCELLANEOUS
    • 21.1.Any notice, approval, consent, or other communication intended to have legal effect under this agreement must be given to the other party in writing, and must be sent by first-class, registered, or overnight mail or private overnight courier, and will be deemed received upon actual receipt or when delivery is refused.
    • 21.2.Waivers. Either party’s failure to enforce any provision of this agreement will not be deemed a waiver of the future enforcement of that provision or the enforcement of any other provision. The failure or delay of OrionMagnetics to exercise or enforce any of its rights under this EULA, or resulting from a breach of any provision of this EULA, shall not be deemed a waiver of those rights, or a waiver of any right to enforce a subsequent breach of such provision, or a waiver of the breach. In order to be binding, a waiver must be made in writing and signed by a person with authority to bind the company.
    • 21.3.Independent Contractors. The parties to this agreement are independent contractors. Neither party is the agent, employee nor partner of the other party, nor does any party have any power or authority to act on behalf of the other party.
    • 21.4.Severability. If any provision in this agreement is found to be invalid, illegal or unenforceable as written, the invalid, illegal or unenforceable provision is to be construed (and modified if necessary) so that it is valid and enforceable to the maximum extent possible; and all remaining provisions shall continue to remain in full force and effect.
    • 21.5.Attorneys’ Fees: The prevailing party in any action to enforce this agreement will be entitled to recover costs and expenses, including but not limited to reasonable attorneys’ fees.
    • 21.6.Remedies. Except where this agreement expressly provides exclusive remedies, all rights and remedies of either party (including termination rights) are cumulative and in addition to and not in lieu of other rights or remedies in equity or law. You agree that monetary damages alone would not be an adequate remedy, and therefore OrionMagnetics will be entitled to injunctive relief if you materially breach the license restrictions, this EULA or any confidentiality provisions in this agreement.
    • 21.7.Force Majeure. Each party will be excused from performance of its obligations under this agreement, except for payment obligations, to the extent that performance is rendered impossible by earthquake, fire, flood, governmental action, labor disruptions, supplier failures, or any other event or circumstance beyond that party’s reasonable control.
    • 21.8.Construction. Section headings in this agreement are for convenience only. The word “including” (and variations thereof) is not intended to be limiting. No strict rule of construction is to be used when interpreting this agreement.
  • ENTIRE AGREEMENT
    • 22.1.This EULA constitutes the entire agreement between you and OrionMagnetics, and supersedes any and all prior or contemporaneous oral or written agreements, communications or understandings. You agree that any varying or additional terms contained in any purchase order or other written notification or document you submit to OrionMagnetics shall have no binding or legal effect upon OrionMagnetics.
  • AMENDMENTS
    • 23.1.This agreement may be amended only by means of a written instrument that is signed by authorized representatives of both parties, that specifically refers to this agreement and that states the parties’ intention to amend it.
  • CONTACT INFORMATION
    • 24.1.All questions concerning this EULA shall be directed to: OrionMagnetics, LLC, PO Box 317, Tolland, Connecticut (USA) 06084-0317.

Click here to download license terms and conditions

Click here to request a pricing for Ascend or Conversion Services.