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Requested Download: EMP Service Suite (2012A)

THIS SOFTWARE LICENSE AGREEMENT (the “Agreement”) is a legal agreement between you (either an individual or entity, hereinafter “Customer”) and EMP Advanced Development, LLC, a Michigan limited liability company having a place of business at 2701 N. 30th Street, Escanaba, MI 49829 (hereinafter “EMP”).

BACKGROUND

EMP has developed and owns certain proprietary software for use with EMP’s thermal management systems and devices (“EMP Systems”). Customer desires to obtain a license to use such software and EMP desires to license such software to Customer on the terms and conditions set forth below. Such software may include, but is not limited to, EMPower ConnectTM (the “Software”).

CUSTOMER AGREES THAT CUSTOMER’S USE OF THE SOFTWARE ACKNOWLEDGES THAT CUSTOMER HAS READ THIS LICENSE AGREEMENT, UNDERSTAND IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.

1.0 LICENSE GRANT

EMP grants to Customer and Customer accepts a limited, personal, nonexclusive, nontransferable, nonassignable object code license to use the Software and any related documentation (the “Documentation”) for Customer's internal use only, subject to the following terms.

1.1 Customer may use the Software and Documentation only in conjunction with, and as applied to, EMP Systems (the “Purpose”).

1.2 Customer may use the Software on any number of computers, and may copy the Software for back-up and archival purposes, provided all copies must contain all of the original Software's proprietary notices.

1.3 EMP may modify this License Agreement upon fourteen (14) days written notice to Customer.

1.4 Except as expressly provided in Section 1.0 of this Agreement, no license under any patents, copyrights, trademarks, trade secrets, or any other intellectual property rights, express or implied, are granted by EMP to Customer under this Agreement.

2.0 LICENSE RESTRICTIONS

2.1 Customer shall not and shall not permit its affiliates or any third party to translate, reverse engineer, decompile, recompile, update, modify, or create derivative works based upon, all or any part of the Software or Documentation.

2.2 Customer shall not: (i) permit its affiliates or any third party to use the Software or Documentation except under the terms listed above; (ii) rent, lease, transfer, or otherwise transfer rights to the Software or Documentation; or (iii) remove any proprietary notices or labels on the Software or Documentation.

2.3 Customer shall not use the Software or Documentation for any other use except the Purpose set forth in Subsection 1.1 above; without limiting the general nature of this Subsection 2.3, Customer shall not use the Software or Documentation to access, control, or gather information from, any systems or devices except EMP Systems.

2.4 Customer agrees that it shall only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions in which Customer uses the Software and Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.

2.5 Customer shall not use the Software in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.

2.6 If Customer receives one copy of the Software electronically and another copy on physical media—e.g., CD, diskette, etc.—the second copy may not be transferred to or used by any third party. This license does not grant Customer any right to any enhancement or update.

3.0 OWNERSHIP OF MATERIALS

3.1 All patents, copyrights, trademarks, circuit layouts, mask works, trade secrets, and other proprietary rights in or related to the Software and Documentation are and will remain the exclusive property of EMP, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Software or Documentation is used or licensed. Customer will not take any action that jeopardizes EMP’s proprietary rights or acquire any right in the Software or the Documentation.

3.2 Unless otherwise agreed on a case-by-case basis, EMP will own all rights in any copy, translation, modification, adaptation, or derivation of the Software or Documentation, including any improvement or development thereof. Customer will obtain, at EMP’s request, the execution of any instrument that may be appropriate to assign these rights to EMP or perfect these rights in EMP's name.

4.0 TERMINATION

4.1 This License Agreement will automatically terminate if Customer fails to comply with any term hereof. No notice shall be required from EMP to effect such termination.

4.2 Customer may terminate this Agreement at any time by notifying EMP in writing of such termination, and EMP may terminate this Agreement upon thirty (30) days written notice to Customer.

4.3 Upon any termination of this Agreement for any reason, Customer shall immediately discontinue use of the Software and Documentation and shall within three (3) days return to EMP, or certify destruction of, all full or partial copies of the Software, Documentation and any related materials provided by EMP.

5.0 TECHNICAL SUPPORT

5.1 Provided that Customer is an owner of, or otherwise has the right to perform work on or maintain, an EMP System, and Customer is not then in default of its obligations under this Agreement, EMP agrees to make Technical Support (as defined in Section 5.2 below) available to Customer for a period of two (2) years from the Effective Date of this Agreement.

5.2 For purposes of this Agreement, “Technical Support” means access to updates of the Software and Documentation, and the then current support options available by accessing EMP’s website at http://www.emp-corp.com.

6.0 DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY

6.1 CUSTOMER ACKNOWLEDGES THAT THE SOFTARE, DOCUMENTATION AND TECHNICAL SUPPORT ARE PROVIDED FREE-OF-CHARGE, AND WITHOUT ITS ASSENT TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER WOULD PAY A FEE OR FEES FOR THE SOFTWARE, DOCUMENTATION AND TECHNICAL SUPPORT.

6.2 THE SOFTWARE, DOCUMENTATION AND TECHNICAL SUPPORT ARE PROVIDED AS-IS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EMP FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE, DOCUMENTATION AND TECHNICAL SUPPORT REMAINS WITH THE CUSTOMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EMP BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE TECHNICAL SUPPORT, EVEN IF EMP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EMP’s TOTAL LIABLITY FOR ANY DIRECT DAMAGES SHALL NOT EXCEED TWENTY-FIVE DOLLARS ($25.00).

7.0 EXPORT CONTROLS

7.1 Customer represents and warrants that it will comply with the laws and administrative regulations of the United States relating to the control of exports of commodities and technical data (“Export Laws”).

7.2 Customer represents and warrants that it will not export or re-export directly or indirectly (including via remote access) any part of the Software or Documentation to (i) any country subject to a United States embargo, or (ii) any country for which a validated license is required for such export or re-export under the Export Laws without first obtaining such a validated license.

7.3 Customer agrees that it will defend and hold harmless EMP against any and all claims, and will indemnify EMP against any and all losses and expenses, arising from or otherwise in respect to any asserted violation of the Export Laws by Customer.

8.0 ASSIGNMENT

Customer may not assign or otherwise transfer its interests, rights or obligations under this Agreement by written agreement, merger, consolidation, operation of law, or otherwise, without the prior written consent of EMP. Any attempt to assign this Agreement by Customer shall be null and void.

9.0 ARBITRATION

9.1 Customer and EMP agree that the exclusive remedy for all disputes and claims relating in any way to, or arising out of, this Agreement, the Software, Documentation or Technical Support, or Customer’s use of the Software, Documentation or Technical Support, shall be final and binding arbitration. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration shall take place in the State of Michigan.

9.2 Customer and EMP may litigate in court only to compel arbitration under this Agreement, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrator(s). Customer and EMP hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of Michigan to enforce the provisions of this Section 8.0 and to resolve any disputes and claims cognizable in court relating in any way, or arising out of, this Agreement, the Software, Documentation or Technical Support, or Customer’s use of the Software, Documentation or Technical Support. The court, not the arbitrator, shall determine arbitrability and enforce the arbitration agreements contained herein.

9.3 This Agreement and all disputes and claims relating in any way to, or arising out of, this Agreement, the Software, Documentation or Technical Support, or Customer’s use of the Software, Documentation or Technical Support, shall be governed by the laws of the State of Michigan.

10.0 SEVERABILITY

If any of the provisions of this Agreement shall be invalid or unenforceable under the laws of the jurisdiction where enforcement is sought, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions and the rights and obligations of EMP and Customer shall be construed and enforced accordingly.

11.0 ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein, superseding all previous agreements pertaining to such subject matter, and may be modified only by an amendment executed in writing by the authorized representatives of both parties hereto. All prior agreements, representations, warranties, statements, negotiations, understandings, and undertakings are superseded hereby and Customer hereby represents and acknowledges that in entering into this Agreement it did not rely on any communications or representations made by EMP prior to entering this Agreement.

I agree to the terms and conditions outlined in the license agreement above.

EMP also requires that you provide us with a valid email address. Once you have agreed to the license agreement above and you provide EMP with your email address, we will send you a validation link so you can download the requested file. EMP values your privacy and will never sell or distribute your personal information.

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