INSTALLATION NOTICE: THIS IS A CONTRACT. BEFORE YOU DOWNLOAD THE SOFTWARE AND/OR COMPLETE THE INSTALLATION PROCESS, CAREFULLY READ THIS AGREEMENT. BY DOWNLOADING THE SOFTWARE AND/OR CLICKING THE APPLICABLE BUTTON TO COMPLETE THE INSTALLATION PROCESS, YOU CONSENT TO THE TERMS OF THIS AGREEMENT, AND YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT WISH TO BECOME A PARTY TO THIS AGREEMENT AND BE BOUND BY ALL OF ITS TERMS AND CONDITIONS, CLICK THE APPROPRIATE BUTTON TO CANCEL THE INSTALLATION PROCESS, DO NOT INSTALL OR USE THE SOFTWARE, AND IMMEDIATELY DELETE ALL OF THE SOFTWARE AND ANY APPLICABLE DOCUMENTATION.
1. Definitions. As used in this Agreement, the following terms have the following meanings:
(a)“Existing License Agreement” means the NI Software License Agreement entered into by NI and you with respect to a development version of LABVIEW, as may be amended from time to time, and pursuant to which you are permitted to use LABVIEW.
(b)“LabVIEW” means the software of NI known as LABVIEW, which you must have properly licensed from NI under a valid Existing License Agreement.
(c)“Licensee” means you, the individual requesting access to and use of the Scripting API, as well as your employer if your access or use of the Scripting API is within the scope of your employment. Licensee is also referred to herein as “you” or “your.”
(d)“NI” means National Instruments Ireland Resources Limited, a company organized under the laws of the Republic of Ireland.
(e)“Program” means Licensee’s access and participation in the NI Labs portion of the www.ni.com website.
(f)“Scripting API” means the LabVIEW Scripting API, which you download and/or otherwise access in connection with the Program, and all related documentation.
(b)Licensee acknowledges and agrees that the Scripting API is protected by applicable copyright and other intellectual property laws and international treaty provisions and (ii) all right, title, and interest in and to the Scripting API, including associated intellectual property rights, are and shall remain with NI and/or its licensors. All rights not expressly granted to Licensee in this Agreement are reserved to NI.
(c)NI desires to have the Scripting API tested and evaluated on certain computer equipment supplied by Licensee, and Licensee desires to accept a license, subject to the terms and conditions herein, to such Scripting API for such purposes. Conditioned at all times on Licensee’s having obtained, and the continued existence of, a valid license for Licensee to use LabVIEW under an Existing License Agreement between Licensee and NI, NI hereby grants to Licensee a limited, terminable, non-exclusive, non-transferable license to use and evaluate (for a limited period of time) the Scripting API, subject to the terms and conditions set forth in this Agreement, on the same number of computers (as such term is defined in the Existing License Agreement) by the same number of Named Users (as such term is defined in the Existing License Agreement), as applicable, as set forth in the Existing License Agreement.
(d)The provision of the Scripting API to Licensee (including delivery and schedule) and Licensee’s access to the Program is at NI’s sole discretion. If and when Licensee receives the Scripting API, it agrees to use the Scripting API only in accordance with the terms of this Agreement and the Existing License Agreement and to expeditiously report problems and anomalies (including all errors or bugs that Licensee might find). NI reserves the right in its sole discretion to terminate or suspend Licensee’s access to the Program at any time. Upon termination of the Existing License Agreement or the breach by Licensee of any term or condition set forth herein, the license hereunder granted to Licensee for use of the Scripting API shall immediately terminate without any further action on behalf of either party.
(e)Licensee understands and acknowledges that NI is under no obligation to release the Scripting API as a standard product or as part of any standard product, (ii) update or support Licensee’s use of the Scripting API, or (iii) continue to allow the Licensee access to the Program or any Scripting API update.
3. Restrictions. Licensee may not: reverse engineer, decompile, or disassemble the Scripting API (except to the extent such foregoing restriction is expressly prohibited by applicable law); (ii) sub-license, lease, rent or otherwise make available to any third party the Scripting API or any key or license file thereto; (iii) distribute in whole or part, modify, or create derivatives of the Scripting API; (iv) directly or indirectly, export, re-export, download, or ship the Scripting API in violation of the laws and regulations of the U.S.A. or the laws and regulations of the applicable jurisdiction in which Licensee uses the Scripting API; or (v) use the Scripting API to create applications, which, as solely determined by NI, perform (by themselves or in combination with other products) the functionality of an editor for a graphical programming environment. Scripting API may be used in object code form only.
This license is personal to Licensee and non-transferable, and Licensee may not distribute or otherwise make available the Scripting API or any key or license file thereto to any third party. Without limiting the generality of any of the provisions in this Agreement or in the Existing License Agreement, Licensee may only distribute or transfer Authorized Applications (as such term is defined under the Existing License Agreement) it creates with the Scripting API and LabVIEW provided Licensee complies with all the terms and conditions in the Existing License Agreement regarding such distribution. Except for the foregoing limited distribution rights, in no event may Licensee distribute any VIs, executables, applications, software, code, or other materials created with the Scripting API and/or LabVIEW without the prior written approval of NI.
4.Confidential Information. Licensee agrees not to, in the course of utilizing the Scripting API and its participation in the Program, disclose to NI or cause NI to use any information or material that is confidential to Licensee or any third party. Any information or material transmitted to or otherwise received by NI in connection with the Scripting API or the Program shall be considered non-confidential and non-proprietary.
5. Feedback. One of the primary purposes why NI desires to provide the Scripting API to you free of charge is to determine its usefulness to the public. Licensee shall, at its own expense, prepare and maintain the test equipment to ensure that the physical environment is suitable for installation, operation, and testing of the Scripting API and that proper utilities are in place.NI Labs provides a number of forums for Licensee to actively participate and provide NI with your feedback about the Scripting API. Any feedback disclosed by LICENSEE to NI, including but not limited to any changes or suggested changes to NI’s current or future products and services you post to NI Labs (collectively “Feedback”), shall be received and treated by NI on a non-confidential and unrestricted basis, notwithstanding any restrictive or proprietary legends of Licensee to the contrarywithout further compensation to you. Licensee hereby grants to NI a worldwide, royalty-free, non-exclusive, perpetual, and irrevocable license to use, copy, and modify Feedback for any purpose, including but not limited to incorporation and/or implementation of such Feedback into NI products or services, and (ii) display, market, sublicense and distribute Feedback as incorporated or embedded in any product or service distributed or offered by NI.
6. High Risk Applications/System Failures. NI does not represent or warrant that the Scripting API will meet Licensee’s requirements or that the use or operation thereof will be uninterrupted or error-free. On the contrary, Licensee acknowledges that (a) the Scripting API have not been fully tested, (b) the Scripting API may have bugs, errors, or other defects, and (c) the purpose of this Agreement is to test and evaluate the Scripting API. Licensee understands that using the Scripting API is risky and that among the risks are incorrect computational results, incorrect program behavior, and corruption of computer storage media. Licensee agrees to take precautions in using the Scripting API, such as not to use the Scripting API where personal or product damage may result and to maintain full backups of storage media. THE SCRIPTING API ARE PROVIDED “AS IS WITH ALL FAULTS,” WITHOUT WARRANTY OF ANY KIND, AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, ARE MADE WITH RESPECT TO THE SCRIPTING API, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. NI DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE SCRIPTING API IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE SCRIPTING API WILL BE UNINTERRUPTED OR ERROR FREE. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SCRIPTING API. NI EXPRESSLY DISCLAIMS ANY WARRANTIES NOT EXPRESSLY STATED HEREIN.
7. Warning. (1) NI PRODUCTS AND THE SCRIPTING API ARE NOT DESIGNED WITH COMPONENTS AND TESTING FOR A LEVEL OF RELIABILITY SUITABLE FOR USE IN OR IN CONNECTION WITH SURGICAL IMPLANTS OR AS CRITICAL COMPONENTS IN ANY LIFE SUPPORT SYSTEMS WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE SIGNIFICANT INJURY TO A HUMAN. (2) IN ANY APPLICATION, INCLUDING THE ABOVE, RELIABILITY OF OPERATION OF SUCH PRODUCTS AND THE SCRIPTING API CAN BE IMPAIRED BY ADVERSE FACTORS, INCLUDING BUT NOT LIMITED TO FLUCTUATIONS IN ELECTRICAL POWER SUPPLY, COMPUTER HARDWARE MALFUNCTIONS, COMPUTER OPERATING SYSTEM SOFTWARE FITNESS, FITNESS OF COMPILERS AND DEVELOPMENT SOFTWARE USED TO DEVELOP AN APPLICATION, INSTALLATION ERRORS, SOFTWARE AND HARDWARE COMPATIBILITY PROBLEMS, MALFUNCTIONS OR FAILURES OF ELECTRONIC MONITORING OR CONTROL DEVICES, TRANSIENT FAILURES OF ELECTRONIC SYSTEMS (HARDWARE AND/OR SOFTWARE), UNANTICIPATED USES OR MISUSES, OR ERRORS ON THE PART OF THE USER OR APPLICATIONS DESIGNER (ADVERSE FACTORS SUCH AS THESE ARE HEREAFTER COLLECTIVELY TERMED “SYSTEM FAILURES”). ANY APPLICATION WHERE A SYSTEM FAILURE WOULD CREATE A RISK OF HARM TO PROPERTY OR PERSONS (INCLUDING THE RISK OF BODILY INJURY AND DEATH) SHOULD NOT BE RELIANT SOLELY UPON ONE FORM OF ELECTRONIC SYSTEM DUE TO THE RISK OF SYSTEM FAILURE. TO AVOID DAMAGE, INJURY, OR DEATH, THE USER OR APPLICATION DESIGNER MUST TAKE REASONABLY PRUDENT STEPS TO PROTECT AGAINST SYSTEM FAILURES, INCLUDING BUT NOT LIMITED TO BACK-UP OR SHUT DOWN MECHANISMS. BECAUSE EACH END-USER SYSTEM IS CUSTOMIZED AND DIFFERS FROM NI’S TESTING PLATFORMS AND BECAUSE A USER OR APPLICATION DESIGNER MAY USE NI PRODUCTS AND/OR THE SCRIPTING API IN COMBINATION WITH OTHER PRODUCTS IN A MANNER NOT EVALUATED OR CONTEMPLATED BY NI, LICENSEE IS ULTIMATELY SOLELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY OF NI PRODUCTS WHENEVER NI PRODUCTS ARE INCORPORATED IN A SYSTEM OR APPLICATION, INCLUDING, WITHOUT LIMITATION, THE APPROPRIATE DESIGN, PROCESS AND SAFETY LEVEL OF SUCH SYSTEM OR APPLICATION.
8. Limitation on Liability. NI SHALL HAVE NO LIABILITY TO LICENSEE OR ANY OTHER INDIVIDUAL OR ENTITY CONNECTED WITH LICENSEE FOR ANY CLAIM, LOSS, OR DAMAGE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT OR ARISING OUT OF OR IN CONNECTION WITH (1) THE DEFICIENCY OR INADEQUACY OF THE SCRIPTING API FOR ANY PURPOSE, WHETHER OR NOT KNOWN OR DISCLOSED TO LICENSOR; (2) THE USE OR PERFORMANCE OF THE SCRIPTING API OR ANY FILES, DATA, OR COMPUTER SYSTEMS RELATED THERETO OR USED IN CONNECTION THEREWITH; (3) ANY INTERRUPTION OR LOSS OF SERVICE OR USE OF THE SCRIPTING API, OR ANY FILES, DATA, OR OTHER COMPUTER SYSTEMS; (4) ANY PRODUCT FAILURE; OR (5) ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE OF ANY KIND OR NATURE RESULTING FROM THE FOREGOING, EVEN IF NI OR ITS LICENSORS, DISTRIBUTORS, OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Licensee acknowledges that, but for this provision, NI would not make the Scripting API available to Licensee. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply. If the foregoing limitation of liability is not enforceable because the Scripting API are determined by a court of competent jurisdiction in a final, non-appealable judgment to be defective and to have directly caused bodily injury, death, or property damage, in no event shall NI’s liability for property damage exceed the total sum of $50,000.
9. Indemnification. Licensee hereby agrees to indemnify, defend and hold NI and its affiliates, officers, directors, owners, information providers, agents, attorneys, licensees, and licensors (collectively, the “Indemnified Parties”) harmless from and against any and all liabilities, claims, costs, including reasonable attorneys’ fees, incurred by the Indemnified Parties in connection with any demand, claim, action, suit, or loss arising as a result of any breach by Licensee of this Agreement or claims arising from Licensee’s participation in the Program or use of the Scripting API. Licensee agrees to use its best efforts to cooperate with NI in the defense of any demand, claim, action or suit. NI reserves the right to assume the exclusive defense of any matter subject to indemnification by Licensee at NI’s own expense.
10. Term. The term of this Agreement shall begin upon the date of your acceptance of this Agreement and shall continue thereafter until the earliest of (1) notification that NI has, at its sole discretion, terminated or suspended Licensee’s access to the Program or (2) the termination of the applicable Existing License Agreement. Licensee may terminate this Agreement by immediately ceasing all use of the Scripting API and deleting and destroying all copies of the Scripting API, and all keys and license files for the Scripting API, downloaded in connection with the Program, and all related documentation to NI. Further, this Agreement shall automatically terminate upon failure by Licensee to comply with its terms. Upon expiration or termination of this Agreement, the license granted to Licensee in Section 2 above will immediately terminate, and Licensee agrees to immediately stop using the Scripting API and delete all copies of the Scripting API, all copies thereof, and all related documentation.Sections 1, 2(b), 2(e), 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 19 and 20 shall, however, survive the termination of this Agreement.
11. Export. Licensee agrees that the Scripting API will not be downloaded, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act, as amended from time to time (the “Act”), or any other export laws, restrictions, or regulations. Licensee represents and warrants that it is not located in or under the control of any country (including without limitation Cuba, Iran, North Korea, Sudan or Syria) that the Act prohibits the exportation of the Scripting API to and that it is not otherwise prohibited under the export control laws from receiving the Scripting API.
12. Privacy. Licensee’s right to privacy is a priority to NI. NI uses data collected from Licensee, for example, in connection with the operation and management of the Program and research and development of its existing hardware and software products and hardware and software in various stages of research and development, including without limitation the Scripting API. Please review NI’s Privacy Statement (http://www.ni.com/legal/privacy/unitedstates/us/) to learn more about how NI uses and protects such data.
13. Relationship of Parties. Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent contractor and not as partner, joint venturer, agent, employee or employer of the other and shall not bind nor attempt to bind the other to any contract.
14. Authority. By clicking the “ACCEPT” button below, Licensee (both on his/her own individual behalf and on behalf of his/her employer, if access to and use of Scripting API has been requested within the scope of his/her employment) hereby (a) represents and warrants that he/she is authorized to enter into this Agreement on behalf of and bind Licensee and (b) agrees, on the behalf of Licensee, to be bound by all of the terms and conditions contained herein, including without limitation Sections 3, 4, 5, 6, 7, 8, and 9 above.
15. Government Restricted Use. If you are an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Scripting API, or any related documentation of any kind, including technical data or manuals, is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies. The Scripting API constitute commercial computer software and the related documentation are commercial computer software documentation. The use of the Scripting API and related documentation is further restricted in accordance with the terms of this Agreement, or any modification hereto. The Contractor/Manufacturer is National Instruments Ireland Resources Limited, 11500 North Mopac Expressway, Austin, Texas, U.S.A., 78759-3504.
16. Choice of Law; No Other Agreements. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE REPUBLIC OF IRELAND, EXCLUSIVE OF ANY PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS, AND WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW, AND CONSTITUTES THE COMPLETE AGREEMENT BETWEEN LICENSEE AND NI. It supersedes any oral or written proposals, prior agreements, purchase orders or any other communication between Licensee and NI relating to the subject matter of this Agreement.
18.Severability. If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect the intent of the parties. The parties further agree to replace any such invalid or unenforceable provisions with valid and enforceable provisions designed to achieve, to the extent possible, the business purposes and intent of such invalid and unenforceable provisions.
19. Section Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Agreement.
20. Attorneys’ Fees. If any action is brought by either party to this Agreement against the other regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any relief granted, reasonable attorney fees and court costs.
By clicking the “ACCEPT” button below or by otherwise completing the installation process or accessing any Scripting API, I hereby agree (both on my own individual behalf and on behalf of my employer, if I am participating in the Program and/or using the Scripting API within the scope of my employment) to the foregoing Agreement with NI.