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THIS LICENSE (THE "LICENSE") SHALL GOVERN ALL ACCESS AND USE OF THE ENERSYS BATTERY SIZING PROGRAM (THE "PROGRAM") BETWEEN ENERSYS AND ITS AFFILIATED ENTITIES ("ENERSYS") AND ALL PERSONS ACCESSING AND USING THE PROGRAM (THE "USER(S)"). BY ACCESSING OR IN ANY WAY USING THE PROGRAM, THE USER ACKNOWLEDGES THAT HE OR SHE HAS READ AND UNDERSTOOD THIS LICENSE AND HAS AGREED TO BE BOUND BY THE BY ALL OF THE TERMS SET FORTH HEREIN. 1. Definitions: the term "Program" means the EnerSys Battery Sizing Program and all programs, codes, routines, documentation or data files related to its installation, operation, troubleshooting, and/or performance, whether in source or object code or in printed form. 2. License. The sole rights given to the User is the right to access and use the Program to enable the User to identify batteries and related products and services offered by EnerSys that meet specific requirements of the User and/or the business with which he is associated. Access to and use of the Program other than in strict conformity with this License is unlawful and may subject the User to civil and criminal penalties. 3. User Login and Passwords. User Login and Passwords are required to access and use the Program. Logins and Passwords shall remain the property of EnerSys and may be canceled by EnerSys at any time without notice. Users must provide accurate information in applying for logins and passwords and shall thereafter protect such logins from unauthorized use by and disclosure to persons other than the person to whom the were issued. EnerSys reserves the right to cancel logins and passwords without notice. 4. Restrictions. The Program is copyrighted and contains trade-secrets and confidential information of EnerSys. The User shall not: (i) decompile, reverse engineer, disassemble or otherwise reduce the Program to human-readable form; or (ii) modify, rent, loan, distribute or create derivative works using the Program; or (iii) electronically transmit the Program over a network; or (iv) introduce viruses, Trojans, or harmful code or data into the Program. 5. Ownership; Intellectual Property Rights. This Program and each copy of the Program is the sole and exclusive property of EnerSys. EnerSys is the sole owner of all patents, copyrights, trademarks and any other intellectual property rights in or to the Program. The User obtains no title to or interest in the Program except for the License set forth in this Section 5. 6. EnerSys Products. Nothing contained or produced by the Program shall constitute an offer by EnerSys to sell products or services. The Products described or depicted by the Program may differ from those then offered by EnerSys. EnerSys reserves the right to add, remove or modify products or services from the market without notice. To the extent that the Program provides prices or terms and conditions of sale, such prices and terms and conditions of sale are subject to change by EnerSys without notice. 7. Limited Warranty; Disclaimers. EnerSys provides the Program AS IS and without any warranty whatsoever. The User assumes all risk associated with the access to and use of the Program. ENERSYS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT ALLOWED BY LAW AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT OF PATENTS AND THIRD PARTY RIGHTS. 8. Limitation of Licensor's Liability. UNDER NO CIRCUMSTANCES SHALL ENERSYS BE LIABLE TO ANY USER FOR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE ACCESS TO USE OF THE PROGRAM. ENERSYS' MAXIMUM LIABILITY TO THE USER SHALL BE EQUAL TO THE SUM THAT WAS PAID FOR THE USE OF PROGRAM. 9. Use of User Information. The Program collects information about the User and businesses with which he or she may be associated ("User Information"). The User authorizes EnerSys to use User Information for sales and marketing purposes, for corporate communications and surveys and to prepare statistic information. EnerSys shall not sell such information to unrelated parties without the consent of the User. 10. Compliance with Laws. The User shall comply with all laws, rules and regulations applicable to the User's access and use of the Program. 11. Controlling Law and Dispute Resolution. This License shall be governed by the laws of United Kingdom without any regard to the principles of conflicts of laws or to the principles of the United Nations Convention on the International Sale of Goods (CISG). All disputes between EnerSys and the User shall be resolved under the Rules of (Commercial) Arbitration of the International Chamber of Commerce (in force from 1 January 1998 as amended; the "Rules"). All such disputes shall be decided by three (3) arbitrators selected in accordance with Article 8 of the Rules unless the parties shall otherwise agree. The proceedings shall be held in English and all arbitrators selected shall be fluent in the English language. All proceedings shall be held in London, United Kingdom, unless the parties otherwise agree. The arbitrators so chosen shall have the power to: (i) enter a default if a party fails to respond to a petition or order; (ii) order American-style discovery; (iii) compel the attendance of party-witnesses for discovery and all other proceedings; (iv) grant interim and final injunctive relief; and (v) compel the non-prevailing party to pay the costs and expenses of the prevailing party (including attorneys fees). For any dispute involving less than US$10,000, the party requesting relief may elect to use arbitration without any need for personal appearance by either party. The arbitrators shall apply the governing law as set forth in this Section 11 and render their interim and final decision(s) in writing. The parties shall have the right to apply to any court of competent jurisdiction to enforce the interim and final decisions of the arbitrators or to seek ancillary relief (including for the purposes of securing discovery) against non-parties. 12. Miscellaneous. This is the entire agreement between EnerSys and User related to the Program. It may not be modified except by a writing signed by an officer of EnerSys. No forbearance by EnerSys shall be deemed a waiver of its rights. In the event that any provision of this License is found to be invalid or unenforceable, the remaining provisions of this License shall be enforceable. EnerSys may terminate this License at any time without notice.
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