Intro
Intro
Intro
Distributed Power
Waukesha ONE *
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NOTICE – READ THIS CAREFULLY: THIS IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND LICENSOR. BY INSTALLING OR USING THE SOFTWARE, YOU AGREE TO ALL THE TERMS AND
CONDITIONS OF THIS SOFTWARE LICENSE (“LICENSE”). IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL OR USE THE SOFTWARE. YOU MAY RETURN THE SOFTWARE, ALL MANUALS,
DOCUMENTATION AND PROOF OF PAYMENT TO LICENSOR WITHIN 30 DAYS OF PURCHASE FOR A FULL REFUND.
1. Definitions. Unless otherwise agreed to by Licensor, the following terms shall mean:
“Derivative Works” includes but is not limited to (a) any work based upon one or more pre-existing works, such as a revision, enhancement, modification, translation, abridgement, condensation,
expansion, extension or any other form in which such pre-existing works may be recast, transformed, or adapted, and that, if prepared without the authorization of the owner of the copyright
to such pre-existing works, would constitute a copyright infringement, and/or (b) any compilation that incorporates such pre-existing works. For Software, Documentation, and Third Party
Software (as defined below), Derivative Works also includes any and all corrections, bug fixes, and updates to the Software, Documentation, Third Party Software, and Derivative Works, but does
not include any Licensee or Licensee-funded third party developments, provided such developments only make “calls” of the Software, Third Party Software or Derivative Works thereof or “object
requests” that reference or cause execution of the base Software, Third Party Software, and/or Derivative Works thereof.
“Documentation” means all material, including all printed material and on-line or electronic documentation, referencing Software and Third-Party Software provided hereunder.
“Licensee” means the entity to which Licensor is providing Software, Documentation, or Third-Party Software.
“Software” means Licensor’s proprietary computer software and software security devices provided by Licensor under this License.
“Third-Party Software” means any proprietary computer software owned by a third party that Licensor may provide to you hereunder.
2. License Grant. 2.1 Subject to the terms of this License, Licensor hereby grants to you a non-transferrable and nonexclusive license to use Software and Documentation, including upgraded,
modified or enhanced versions provided by Licensor, and to use Third-Party Software, all for your internal business purposes only.
2.2 You have no right to (i) copy, post online, lease, rent, transfer, distribute, sublicense, timeshare, or allow third parties to access Software, Documentation, or Third-Party Software, nor assign
any rights hereunder to a third party without Licensor’s prior, written agreement (including for purposes of training); (ii) disassemble, decompile, reverse engineer, or otherwise attempt to
reconstruct or discover the source code of the Software or Third-Party Software; (iii) pledge Software or Third-Party Software as collateral or otherwise, or encumber such Software or Third-Party
Software with any lien or security interest; or (iv) remove any product identification, copyright, trademark, or other notice from Software, Documentation or Third-Party Software. If you believe
that you are entitled to reverse engineer Software as a matter of local law (e.g., the Council Directive of May 14, 1991, of the Council of the European Communities, as amended), you agree that
you shall first request technical information from Licensor. You shall use any technical information delivered by Licensor only for purposes of ensuring “interoperability” and compatibility and
shall treat such technical information as Proprietary Information (defined below). Any reverse engineering of Software shall void any warranties or indemnification obligations of Licensor and
shall automatically release Licensor from any obligation to provide support services under this or any separate agreement.
2.3 Certain software Licensor provides to you may contain Third-Party Software, including but not limited to “open source” software. Use of Third-Party Software and its source code may be
governed by separate copyright notices and license provisions, which may be found or identified in Documentation or on the media delivered with Software and which are incorporated by
reference into this License. You shall not modify or combine Software and/or any Third-Party Software in any manner that could cause, or could be interpreted or asserted to cause, Software or
any modifications thereto to become subject to the terms of any license applicable to Third Party Software.
2.4 Unless otherwise agreed to in writing by Licensor or specified in an Exhibit attached hereto, you shall only have the right to install and use a single copy of Software and Third-Party Software
on a single computer workstation for use by a single user.
2.5 Except as authorized under this License, no copies of Software, Documentation, or Third-Party Software may be made by you or any third party; provided, however, you may print on-line
Software documentation for its own internal use, provided the maximum number of copies may not exceed the number of users licensed hereunder.
3. Support Services; Upgrades. This License does not obligate Licensor to provide maintenance and support on any Software or Third-Party Software licensed hereunder. Support services are
available under separate agreement. If Software is an upgrade of a previous version (provided such upgrade was obtained under a separate support services agreement with Licensor or a
Licensor authorized distributor), you may use the upgraded Software only in accordance with this License.
4. Verification. During the term of this License and for 3 years thereafter, Licensor may upon reasonable notice require that an independent audit of the use of Software and Third-Party Software
be conducted during your normal business hours. Upon such notice, you shall provide Licensor’s independent auditor site access and the right to inspect relevant portions of your computer
system on which Software and Third-Party Software resides. You agree to pay promptly: (a) all underpaid license fees and (b) if the underpayment is more than 5% of the license fees paid before
audit, all audit costs and expenses.
5. Term and Termination. 5.1 Software, Documentation, and Third-Party Software shall be considered accepted by you upon receipt.
5.2 This License is effective until terminated. Licensor may terminate this License immediately if you fail to comply with any of the terms and conditions herein. Upon termination, you shall (a)
cease using Software, Documentation, and Third-Party Software and (b) certify to Licensor within one (1) month of the termination that you have destroyed or returned to Licensor the Software,
Documentation, and Third-Party Software, and all copies thereof.
6. Ownership. 6.1 All Software, Documentation, and Third-Party Software are licensed and not sold. You agree that Licensor and its suppliers own all proprietary rights, including, but not limited
to any patent, copyright, trade secret, trademark, and other proprietary rights, in and to Software, Documentation, and Third-Party Software, including any Derivative Works thereof regardless
of the source of development, including but not limited to cases where Licensee engages a third party to perform such development and any corrections, bug fixes, and updates to such
Software, Documentation, Third-Party Software, or Derivative Works.
6.2 Therefore, to the extent that any Derivative Works of Licensor’s proprietary Software or of Third Party Software supplied by Licensor is developed, Licensee hereby (a) agrees that the
intellectual property rights to such Derivative Works are automatically vested in Licensor (or its affiliates, in Licensor’s sole discretion) or in the owner of Third Party Software, as applicable,
and may be used by Licensor (or the or the owner of any Third Party Software Derivative Works) without limitation and without any obligation to Licensee on behalf of Licensor and/or such
other relevant owner; (b) irrevocably transfers and assigns to Licensor all intellectual property rights, moral rights, title, and interest throughout the world in and to any such Derivative Works,
including, but not limited to, all rights in and to any inventions and designs embodied in such Derivative Works or its associated technology; (c) agrees and forever waives any right to assert any
claim contrary to (a) and (b) in this Article 6.2; and (d) agrees to take all steps necessary to fulfil the requirements as set forth in this Article 6.2 for any such Derivative Works whether developed
by Licensee or by any third party under Licensee’s direction. Even if by operation of law such rights are not automatically transferred and assigned as provided above, Licensee shall execute
and deliver such instruments and take such other action as may be requested by Licensor to perfect and protect Licensor’s (or Third Party Software owner’s) rights in any Derivative Works and
to carry out the assignments effected by Article 6.
6.3 Notwithstanding the foregoing, Licensor grants Licensee a “right to use” license to any Software or Third Party Software Derivative Works for internal business purposes only under the same
terms and conditions that apply to Software, Documentation, or Third Party Software under Article 2 herein.
6.4 For the purposes of Article 6, the term “Licensor” shall mean Licensor, its affiliates, and their successors or assigns.
7. Limited Warranties. 7.1 Licensor warrants, for your benefit alone, that under normal use the media in which Software is embedded shall be free from defects in material and workmanship, for
a period of ninety (90) days from the date of delivery of the initial Software (“Warranty Period”).
7.2 Licensor warrants, for your benefit alone, that during the Warranty Period, Software will perform substantially in accordance with its Documentation. If, during the Warranty Period, an
Error occurs (where “Error” is defined as a problem caused by an incorrect operation of the unmodified computer code in Software or an incorrect statement or diagram in Documentation that
produces incorrect results), Licensor will use commercially reasonable efforts to correct such Error, provided you furnish Licensor with the following: (a) written notice of the warranty claim,
including a description of the failure to perform in accordance with Documentation and a specific description of the operating conditions (including the specific software/hardware configuration)
under which the failure occurred, and (b) to the extent feasible, a representative sample of inputs for repeating and analysing the failure. If Licensor is unable, after commercially reasonable
efforts, to correct the Error, your sole remedy shall be termination of this License and a refund of the license fees allocable to the specific nonconforming Software that have been paid by you to
Licensor hereunder.
7.3 Article 7 provides the exclusive remedies for all claims based on failure of or defect in Software and Documentation, whether the failure or defect arises before, during, or after the applicable
Warranty Period and whether a claim, however described, is based on contract, warranty, indemnity, tort/extracontractual liability (including negligence), strict liability, or otherwise. The
warranties provided in Article 7 are exclusive and are in lieu of all other warranties, conditions and guarantees whether written, oral, implied, or statutory. NO IMPLIED STATUTORY WARRANTY
OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES. WITHOUT LIMITING THE FOREGOING, LICENSOR DOES NOT WARRANT THAT THE
SOFTWARE OR DOCUMENTATION (OR YOUR USE THEREOF) WILL BE FREE FROM ALL ERRORS OR ITS USE WILL BE UNINTERRUPTED.
7.4 Any remedial steps taken by Licensor hereunder shall not extend the applicable Warranty Period.
7.5 Except as expressly authorized by Licensor in writing, all Third-Party Software shall carry only the warranties provided by the owners thereof and Licensor gives no warranties for such Third-
Party Software.
8. Proprietary Information; Equitable Relief. 8.1 All information concerning or embedded in Software (including but not limited to source code and training materials), Documentation, and Third-
Party Software is confidential and shall be considered Licensor’s (or its suppliers’) proprietary information (“Proprietary Information”) whether or not the information is marked as Proprietary
Information. Proprietary Information includes commercially valuable, substantial trade secrets, the design and development of which reflect the effort of skilled development experts and
investment of considerable amounts of time and money.
8.2 You acknowledge: (a) any use of Software, Documentation, or Third-Party Software in a manner inconsistent with this License or (b) any other misuse of Proprietary Information of Licensor
(or its suppliers), will cause immediate irreparable harm to Licensor (or its suppliers) for which there is no adequate remedy at law. You agree that Licensor (or its suppliers) shall be entitled to
immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such misuse or threatened misuse by you. The parties agree and stipulate that Licensor
shall be entitled to such injunctive relief without posting of a bond or other security; provided, however, that if the posting of a bond is a prerequisite to obtaining injunctive relief, then a bond in
an amount equivalent to U.S. $1,000 shall be sufficient. Nothing contained herein shall limit Licensor’s right to any remedies at law, including the recovery of damages from you for breach of
this License.
9. Compliance With Laws. You understand and recognize that Software, Documentation, and Third-Party Software made available to you hereunder are subject to all U. S. and other applicable
trade control laws and regulations. You hereby agree that you will not tranship, re-export, divert, or direct Software, Documentation, or Third-Party Software, other than in and to the ultimate
country of destination specified on your order or declared as the country of ultimate destination on Licensor’s invoice.
10. Limitation of Liability. 10.1 The total liability of Licensor, for all claims arising out of or relating to the performance or breach of this License or use of any Software, Documentation, and
Third-Party Software, shall not exceed the price of the specific Software, Documentation, or Third-Party Software giving rise to the claim. Licensor’s liability shall terminate upon the expiration of
the applicable Warranty Period, provided that you may enforce a claim that accrued prior to that date by commencing an action or filing an arbitration, as applicable under Article 11, before the
expiration of the applicable statute of limitations or repose, but not later than one year after the expiration of such warranty period.
10.2 Seller shall not be liable for loss of profit or revenues, loss of product, loss of use of Software, Documentation, or Third-Party Software or any associated equipment, interruption of business,
cost of capital, cost of cover or replacement, downtime costs, increased operating costs claims of your customers for such damages, or for any special, consequential, incidental, indirect,
punitive or exemplary damages.
10.3 Licensor shall not be liable for any advice or assistance that is not required under this License.
10.4 For the purposes of Article 10, the term “Licensor” shall mean Licensor, its affiliates, subcontractors and suppliers of any tier, and their respective agents and employees, whether individually
or collectively.
10.5 The limitations and exclusions in Article 10 shall apply regardless of whether a claim is based in contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict
liability or otherwise.
10.6 Licensee’s and Licensor’s rights, obligations and remedies arising out of or relating to Software, Documentation, and Third-Party Software are limited to those rights, obligations and
remedies described in this License. Article 10 shall prevail over any conflicting or inconsistent terms in the License, except to the extent that such terms further restrict Licensor’s liability.
11. Dispute Resolution, Governing Law. 11.1 If you have your pertinent place of business in a country other than the U.S., any dispute arising out of or in connection with this License, including
any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (“LCIA”) Rules, which Rules
are incorporated by reference into this Article 11.1. The number of arbitrators shall be one unless the amount in dispute exceeds the equivalent of $1,000,000, in which event it shall be three.
When three arbitrators are involved, each party shall appoint one arbitrator, and those two shall appoint the third, within thirty (30) days, who shall be the Chairman. The single arbitrator or the
Chairman may not be a national or resident of the countries in which either party is organized or has its principal place of business unless both parties otherwise agree. The seat, or legal place,
of arbitration shall be London, England. The arbitration shall be conducted in the English language. In reaching their decision, the arbitrators shall give full force and effect to the intent of the
parties as expressed in this License, and if a solution is not found herein, shall apply the governing law of this License. The decision of the arbitrator shall be final and binding upon both parties,
and neither party shall seek recourse to a law court or other authority to appeal for revisions of such decision.
11.2 If you have your pertinent place of business in the U.S. any claim, legal action or proceeding (including without limitation claims for set-off or counterclaim) regarding the dispute arising out
of or in connection with this License, shall be brought in the U.S. District Court for the Northern District of Georgia, or in the event that court lacks jurisdiction to hear the claim, in the appropriate
state courts of Cobb County, Georgia, and the parties irrevocably consent to the exclusive jurisdiction of such courts in respect of all such claims. Each party hereby submits to and accepts
generally and unconditionally the jurisdiction of those courts with respect to its respective person and property, and irrevocably consents to the service of process in connection with any such
action or proceeding by personal delivery to the party or by the mailing thereof by registered or certified mail, postage prepaid to the other party at the address for the party.
11.3 Notwithstanding the terms above, each party has the right at any time, at its option and where legally available, to commence an action or proceeding in a court of competent jurisdiction
to apply for interim or conservatory measures, but not monetary damages.
11.4 The validity, performance and all matters relating to the interpretation and effect of this License and all further documents executed pursuant to it shall be construed and interpreted in
accordance with the laws of (i) the State of New York, U.S., if you have your pertinent place of business in the U.S. or (ii) England and Wales if you have your pertinent place of business outside of
the U.S., excluding its rules on the conflict or choice of laws. If you have your pertinent place of business outside of the U.S., the United Nations Convention on Contracts for the International Sale
of Goods shall apply.
12. Intellectual Property Indemnification. 12.1 Licensor shall indemnify you against any damages, costs and expenses arising out of any suit, claim, or proceeding (a “Claim”) alleging that
Software or Documentation infringes a patent in effect in the U.S., an EU member state or country of delivery (provided there is a corresponding patent issued by the U.S. or an EU member state),
or U.S. copyright or copyright registered in the country of delivery; provided that: (a) you promptly notify Licensor in writing of any such Claim; (b) you make no admission of liability and give
Licensor sole authority, at Licensor’s expense, to direct and control all defense, settlement, and compromise negotiations; and (c) you provide Licensor with full disclosure and assistance that
may be reasonably required to defend any such Claim.
12.2 Licensor shall have no obligation or liability with respect to any Claim based upon: (a) any Software or Documentation that has been altered, modified, or revised; (b) the combination,
operation, or use of any Software or Documentation with other products or services when such combination is part of any allegedly infringing subject matter; (c) failure of you to implement any
update provided by Licensor that would have prevented the Claim; or (d) unauthorized use of Software or Documentation, including, without limitation, a breach of the provisions of this License.
12.3 Should any Software or Documentation, or any portion thereof, become the subject of a Claim, Licensor may at its option (a) procure for you the right to continue using Software or
Documentation, or portion thereof, (b) modify or replace it in whole or in part to make it non-infringing, or (c) failing (a) or (b), take back Software or Documentation and refund any fees received
by Licensor attributable to the infringing Software or Documentation.
12.4 This states Licensor’s entire liability for indemnification for intellectual property rights infringement for Software or Documentation. You waive any moral rights.
12.5 Notwithstanding the foregoing, with respect to any Third-Party Software, or portions thereof, only the indemnity of the manufacturer/developer, if any, shall apply.
13. General Clauses. 13.1 Software and Third-Party Software licensed hereunder are not intended for use in connection with any nuclear facility or activity without the written consent of Licensor.
You warrant that you shall not use, or permit others to use Software or Third-Party Software for such purposes, unless Licensor agrees to such use in writing. If, in breach of the foregoing, any
such use occurs, Licensor disclaims all liability for any nuclear or other damages, injury or contamination and in addition to any other legal or equitable rights of Licensor, you shall indemnify and
hold Licensor harmless against any such liability. If Licensor agrees in writing to any such nuclear use, Licensor’s special terms and conditions for nuclear applications and protections against
nuclear liability shall be attached and incorporated fully herein by reference.
13.2 Licensor may assign or novate its rights and obligations under this License, in part or in whole, to any of its affiliates or may assign any of its account receivables under this License to any
third party without your consent. You agree to execute such documents as may be necessary to effect the assignment or novation. The delegation or assignment by you of any or all of your
duties or rights under this License without Licensor’s prior written consent shall be void.
13.3 If any provision of this License is found to be void or unenforceable the remainder of this License shall not be affected and the parties hereby agree that they will replace any such void or
unenforceable provision with a new provision that achieves substantially the same practical or economic effect and which is valid and enforceable.
13.4 This License represents the entire agreement between the parties, and no modification, amendment or waiver shall be binding on either party unless agreed in writing by the parties’
authorized representatives.
13.5 For direct and indirect U.S. government contracts and/or contracts funded in whole or in part by the American Recovery and Reinvestment Act (ARRA) only, all Software, Documentation
and Third-Party Software provided hereunder shall be considered “commercial items” as defined in FAR Part 2, 2.101 and in accordance with FAR 52.244-6. To the full extent permitted under
FAR Part 12, the terms and conditions of FAR 52.212-4 are replaced by the Terms and Conditions set forth in this License. Therefore, no governmental contracting provisions, standards
or requirements, including without limitation those relating to cost accounting and the Truth-in-Negotiations Act, shall apply except those expressly accepted in writing by Licensor. If the
reasonableness of the price cannot be established, if cost or pricing data is required for any other reason, or if the Software, Documentation or Third-Party Software cannot be considered
“commercial items,” or if the License is funded in whole or part by ARRA funds and Licensee does not so notify Licensor in writing prior to Licensor agreeing to the transaction, Licensor may
withdraw the proposal or cancel this License without penalty or other liability and be reimbursed for work performed to date.
13.6 Upon request you agree to provide Licensor with a signed copy of this License.