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Yokogawa Electric Corporation

FAST/TOOLS Software License Agreement


IMPORTANT - PLEASE READ THIS AGREEMENT CAREFULLY:
BY INSTALLING OR OTHERWISE USING THE ENCLOSED SOFTWARE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS FAST/TOOLS SOFTWARE LICENSE AGREEMENT (AGREEMENT). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL NOR USE THE SOFTWARE PRODUCT AND PROMPTLY RETURN IT TO THE PLACE OF PURCHASE FOR A REFUND, IF APPLICABLE. IF YOU ACCEPT THESE TERMS AND CONDITIONS, PLEASE SEND US THE COMPLETED USER REGISTATION FORM. 1. Grant of License (1) Subject to the terms and conditions of this Agreement, Yokogawa Electric Corporation (Licensor) hereby grants to you (Licensee) a non-exclusive and non-transferable right to use the enclosed FAST/TOOLS Software and associated materials and documentation in printed or electronic format (Licensed Software). (2) The License is subject to that the Licensed Software is used in the operating environment identified by the Licensor, either (a) to the extent specified in the contract specification, or (b) if not specified, for a single user on a single computer. (3) Licensee may use the Licensed Software solely for its own internal data processing operations. Use of the Licensed Software for any purpose other than those as expressly specified in the documentation provided by Licensor and any result or damage therefrom shall be at Licensees own risk and responsibility. (4) Licensee may make one identical copy of the Licensed Software (in this context, excluding any associated materials and documentation) for backup purpose, which shall be maintained by Licensee with strict care. Such copy shall bear Licensors proprietary notice as the original does. No other copies shall be made without Licensors prior written consent. (5) The Licensed Software may contain software which Licensor is licensed from third parties (Third Party Software). Licensee agrees to use the Third Party Software in accordance with the terms and conditions as set forth by licensors of such Third Party Software (Third Party Licensor), a copy of which shall be provided to Licensee associated with the Licensed Software, and agrees to be bound thereby. (6) Any and all technology, algorithms, know-how and process contained in the FAST/TOOLS Software are the property or trade secret of Licensor or Third Party Licensor. Ownership of and all the rights in the FAST/TOOLS Software shall be retained by Licensor or Third Party Licensor and none of the rights will be transferred to Licensee hereunder. Licensee shall maintain the aforementioned Licensors and the Third Party Licensors property and trade secret in strict confidence, not to disclose it to any party other than Licensees employees, officers and directors who have a legitimate need to know to use the FAST/TOOLS Software and agreed in writing to abide by the obligations hereunder. (7) Licensee agrees to use any Third Party Software solely as Runtime-Restricted Use software which shall be used solely as part of and with the integrated Licensed Software, and shall not make any further use of Third Party Software for any other purposes or in any other manner. 2. Restriction Licensee shall not : (a) remove any product identification, copyright notices, or other notices or proprietary restrictions from the Licensed Software; (b) transfer, sell, assign, sublicense or otherwise convey the Licensed Software to another party without Licensors written consent; (c) cause, permit or attempt the reverse engineering, disassembly, decompilation, translation or adaptation of the Licensed Software. Any transfer of the Licensed Software is subject to Licensors transfer policies and fees. 3. Copyright / Ownership The Licensed Software is the proprietary product of Licensor and is protected by copyright and other intellectual property laws and treaties. Licensee acquires only the right to use the Licensed Software and does not acquire any rights, expressed or implied, in the Licensed Software or media containing the Licensed Software other than those specified in this Agreement. Licensor shall at all times retain all rights, title interest, including intellectual property rights, in the Licensed Software and media.

UC50A01A10-01EN nd 2 Edition: April, 2009

4. Warranty / Liability (1) Licensor warrants that for ninety (90) days from the date of delivery of the Licensed Software to Licensee (Warranty Period): (a) the enclosed media is free of defects in materials and workmanship under normal use and (b) unmodified Licensed Software will substantially perform functions described in documentation provided by Licensor when operated on the designated computer and operating system. Licensor does not warrant that the Licensed Software will meet Licensees requirements, the Licensed Software will operate in combinations Licensee may select for use, operation of the Licensed Software will be uninterrupted or error-free, or all Licensed Software errors will be corrected. If Licensee reports an error in the Licensed Software within Warranty Period Licensor shall, at its option, correct the error, provide Licensee with a reasonable procedure to circumvent the error, or, if Licensor finds neither of them is available, upon return of the Licensed Software by Licensee, refund the license fees actually paid to Licensor. Licensor will replace any defective media without charge to Licensee if such defective media is returned to Licensor within Warranty Period. These warranties are exclusive and in lieu of all other warranties and conditions, whether express or implied in law. Licensor hereby expressly disclaims any and all implied warranties of any kind whatsoever, including without limitation warranty of merchantability, fitness for a particular purpose or non-infringement. (2) IN NO EVENT SHALL LICENSOR BE LIABLE, WHETHER IN CONTRACT, TORT OR OTHERWISE AND WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, FOR (A) CONSEQUENTIAL, INCIDENTAL OR INDIRECT LOSS OR EXEMPLARY DAMAGES, (B) LOSS OF PROFITS, (C) LOSS OF REVENUE, (D) LOSS OF BUSINESS OR GOODWILL, (E) LOSS OF, DAMAGE TO OR CORRUPTION OF DATA OR (F) LOSS OF AVAILABILITY. LICENSORS LIABILITY OTHERWISE FOR DIRECT LOSS OR DAMAGE HEREUNDER SHALL IN NO EVENT EXCEED THE DEPRECIATED BALANCE OF THE AMOUNT PAID BY LICENSEE FOR THE LICENSE OF THE CONCERNED LICENSED SOFTWARE. 5. Infringement (1) Subject to paragraph 4 (2), Licensor shall hold Licensee harmless from costs reasonably incurred by Licensee in connection with any suit or legal proceeding brought against Licensee by any third party insofar as such suit is based on a claim that the Licensed Software constitutes an infringement of any Japanese patent, copyright or any other intellectual property rights or the violation or pirating of a trade secret (herein collectively infringement), provided that Licensee (i) has notified Licensor in writing of such suit not more than five (5) days after Licensee receives notice thereof, (ii) allows Licensor to control the defense and settlement negotiations for any such claim and (iii) provides to Licensor all information and assistance for the defense of same. If Licensee's attorney(s) is nominated and fully controlled by Licensor, such attorneys cost shall be borne by Licensor. (2) If infringement is found in such action or if in Licensors opinion the Licensed Software has become or is likely to become the subject of a claim for infringement, Licensor shall have the option of (i) replacing the Licensed Software with a product substantially equal in performance but non-infringing, (ii) modifying the Licensed Software so that it becomes non-infringing, (iii) securing for Licensee the right to continue using the Licensed Software or (iv) refunding the license fee of the Licensed Software as depreciated. (3) Notwithstanding the foregoing, Licensor shall have no liability for any claim of infringement based on the use of a combination of the Licensed Software with products not supplied by Licensor or of the Licensed Software modified by any party other than Licensor, if such infringement could have been avoided but for such combination or modification. (4) The foregoing states the entire liability of Licensor with respect to infringement of the Licensed Software. 6. Support / Upgrade Any support or upgrade service for the Licensed Software shall be subject to a separate service contract to be made between Licensee and Licensors designated service provider. If any update or enhancement to the Licensed Software is acquired under such service contract, such update or enhancement shall be included in the Licensed Software hereof and any use thereof shall be governed by this Agreement. 7. Termination (1) Licensor has the right to terminate this Agreement if Licensee has breached any of the terms thereof without refund. (2) Upon termination of this Agreement, Licensee shall, upon request by Licensor, return all copies of the Licensed Software in its possession to Licensor or its designee and erase all copies of the Licensed Software installed in any computer under the license hereunder.

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8. General (1) This Agreement shall be governed by the laws of Japan. All disputes which may arise in relation to this Agreement shall be finally settled by arbitration in Tokyo, Japan in accordance with the Commercial Arbitration Rules of the Japan Commercial Arbitration Association. The award rendered by the arbitrators shall be final and binding upon the parties hereto. Notwithstanding the foregoing, as any breach of this Agreement will cause Licensor substantial and irreparable harm for which recovery of monetary damages would be inadequate, therefore, in the event of any such breach or threatened breach, in addition to other remedies which may be available, Licensor shall be entitled to seek specific performance and other injunctive relief. (2) This is the entire license between Licensor and Licensee relating to the Licensed Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Licensed Software. (3) If any part of this Agreement is found void or unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. The parties hereby agree to attempt to substitute for such invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision. (4) Licensee agrees that the Licensed Software will not be shipped, transferred or exported to any country or used in any manner prohibited by any applicable export laws, restrictions or regulations. (5) This Agreement may only be modified in writing signed by an authorized officer of Licensor. (6) The failure of either party to require the performance by the other party of any provision hereof shall not constitute a waiver of that provision or the required performance. The waiver by either party of any breach of any provision of this Agreement shall not constitute a waiver as to any subsequent breach or continuation of the same breach. (7) This Agreement including any rights, licenses or obligations under this Agreement, may not be assigned by Licensee to any other person without the prior written consent of Licensor. In the event of any assignment of this Agreement, this Agreement shall be binding upon and inure to the benefit of each of the parties and their respective legal successors and permitted assigns. (8) Upon prior written notice to Licensee, Licensor (or independent representative engaged by Licensor) shall have the right to audit Licensees business practices to the extent reasonably necessary to audit Licensees compliance with terms and conditions of this Agreement. Licensor shall pay the costs associated with such audit unless such audit reveals a material breach by Licensee of the terms and conditions of this Agreement.

UC50A01A10-01EN nd 2 Edition: April, 2009