END-USER LICENSE AGREEMENT
THE TERMS AND CONDITIONS OF THIS END-USER LICENSE AGREEMENT SHALL GOVERN YOUR USE OF THE SOFTWARE AND THE LICENSE FOR IT GRANTED TO YOU. READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING AND USING THE SOFTWARE. BY USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
- The Software is licensed to You by Flow Science, Inc. (“Licensor”) on a nonexclusive and nontransferable basis, subject to the commercial terms specified in the Acquisition Agreement and subject to the terms and conditions set forth herein.
IF YOU ARE AN ACADEMIC USER, YOU UNDERSTAND THAT YOU ARE OBLIGATED TO RESTRICT YOUR USE OF THE SOFTWARE TO TEACHING, ACADEMIC AND/OR UNSPONSORED RESEARCH, OR SPONSORED RESEARCH THAT CAN AND WILL BE FREELY PUBLISHED WITH NO PROPRIETARY RESTRICTIONS.
“Acquisition Agreement” means a separate executed agreement between You and Licensor or one of its authorized distributors wherein the terms upon which You acquire the right to use the specific FLOW-3D® Product that is licensed to You, including, without limitation, the number of allowed concurrent solver instance tokens and/or allowed core/CPU tokens, price, license duration, and any rights to technical support and upgrades, are set forth.
“Agreement” means this End-User License Agreement.
“Distributor” means third party business entities that are authorized by Licensor to distribute and support the Software. Any service obligations of Licensor defined under this Agreement shall, if Your license was acquired through a Distributor, be the responsibility of that Distributor.
“Documentation” means those materials prepared by Licensor to assist You in the use of the Software, including, but not limited to, user manuals, tutorials, training videos, and release or installation notes, including electronic versions thereof.
“FLOW-3D Product” means computational fluid dynamics software programs sold and distributed individually as FLOW-3D, FLOW-3D/MP, or FLOW-3D CAST, and any other similar product which may become available from Licensor under the same family name.
“FlowSight” means the post-processing and visualization tool packaged with the FLOW-3D Product. FlowSight is a custom version of EnSight®, limited to use in conjunction with FLOW-3D Products only, which is distributed by Licensor under license from Computational Engineering International, Inc. (“CEI”). CEI retains all rights to the intellectual property of EnSight used in FlowSight.
“License Server” means the centralized software service, installed on a workstation or other physical server designated by you, which provides tokens to client computers enabling the Software to execute.
“Maintenance Service” means the services described in Section 4.
“Registered User” means a person appointed by You as Your representative and liaison with Licensor for purposes of coordinating Your receipt of technical support and modifications to the Software, including new version releases and interim updates and corrections.
“You” and “Your” refers to the legal entity which has acquired a license to use the Software, as well as its principals and duly-authorized officers, employees, and agents.
“Software” means such computer program from among the FLOW-3D Products that is licensed to You hereunder, FlowSight, the Documentation, and any backups or other copies.
- License Management.
a. In connection with the License granted herein, Licensor will issue one or more electronic license files which shall be tied, at Licensor’s discretion, to the FLEXID or the MAC address of the License Server. Such license file(s) will enable the running of the Software’s preprocessor and postprocessor and control the number of concurrent instances of the Software’s solver module and FlowSight in use. b. You agree not to take any steps to avoid or defeat the purpose of Licensor’s licensing measures. Use of the Software without a license file or in excess of the number of authorized concurrent instances is expressly prohibited. Upon request, You agree to submit log files to Licensor for audit/verification purposes. Use of the Software on a network is restricted to computing resources physically located within a fifty-mile radius around the geographic location of the License Server, unless otherwise agreed in writing by Licensor. c. If arrangements for Maintenance Service have been made, You may request one (1) no-cost change of license file to accommodate a desired change of License Server during the agreed period of Maintenance Service. Any additional changes during such Maintenance Service period, and any requests for a change of License Server during a period when no Maintenance Service has been acquired, shall be provided by Licensor, at its discretion, upon payment by You of an administrative fee.
- Maintenance Service.
a. If arrangements for Maintenance Service have been made, only the Registered User or persons who have completed a FLOW-3D training course will be entitled to contact Licensor or its authorized distributor to seek technical support. Technical support will be provided via telephone, e-mail, web-based meetings, fax, and/or mail during the normal business hours of Licensor or its authorized distributor, as applicable. b. In order to enable Licensor to provide timely and beneficial technical support for the Software, You agree to install updates, fixes, circumventions, and corrective code to the Software in a reasonable time after receipt thereof and to be responsible for the installation and administration of the Software on platforms officially supported by Licensor. Licensor shall have no obligation to provide technical support (i) for other than the two most recent commercially-available releases of the Software; (ii) if the Software has been altered, damaged or modified by You or on Your behalf; or (iii) for any problems caused by Your negligence or misuse of the Software. c. If You are an academic user and have purchased maintenance service, Licensor’s service obligation is limited as follows: (i) Licensor will provide User with software upgrades when they become available; (ii) Licensor or its authorized distributor will assist in installation of the code and will answer questions about how to use the input variables to implement the various models in the FLOW-3D Product; (iii) at its option, Licensor or its authorized distributor will analyze results that appear obviously incorrect because they don’t seem to reproduce simple analytical results or expected conservation laws; (iv) Licensor will also provide access to a number of subroutines to allow users to implement small changes to the FLOW-3D Product, including boundary conditions and material properties; and (v) neither Licensor or its authorized distributor will assist in the making of revisions or customizations to the Software. d. In the event that Maintenance Service is discontinued by You for any reason, Licensor shall have no obligation to permit reinstatement of Maintenance Service. Licensor’s election to permit reinstatement of Maintenance Service shall be subject to its then-current reinstatement policy as posted in its Users Site from time to time.
- Use and Limitations.
a. Except with respect to the rights of CEI in respect to its intellectual property used in FlowSight, the Software is the property of Licensor. You recognize that the Software is copyrighted under the laws of the United States of America, other nations and international treaty provisions. Notwithstanding the copyrights, the Software contains trade secrets and proprietary information of Licensor and CEI, and You agree not to act in contravention of any of Licensor’s or CEI’s intellectual property rights. You acknowledge that Licensor and CEI own the aforementioned rights and have the following exclusive rights with regard to the applicable portions of the Software: to reproduce it; to adapt, transform or rearrange it; to prepare derivative works from it; and to control its distribution.
b. The Software is licensed, not sold. No title to or ownership of the Software or any part thereof is hereby transferred to You, and all rights not specifically granted to You shall remain with Licensor and CEI, as appropriate. You acknowledge that, by virtue of this Agreement, You acquire only the right to use the Software pursuant to the terms of this Agreement.
c. You acknowledge that the Software embodies confidential and proprietary information owned by Licensor and You agree to take all necessary action to protect such confidential and proprietary information to avoid the disclosure of the contents of the Software to any other person, firm, or corporation, and to treat the Software with the same degree of care that You provide Your own confidential information. You agree to acknowledge the use of the Software in any written or verbal presentation, oral or written, where results obtained using the Software are discussed.
d. You may use the Software only as expressly permitted in this Agreement. You may not: (i) rent, loan, transfer, relicense, distribute, or otherwise assign the Software or any or all of Your rights hereunder without prior written consent of Licensor, and any attempt at the same shall be wholly void and ineffective for all purposes; (ii) copy the Software (except to make archival copies for backup purposes); (iii) decompile, disassemble, or otherwise reverse engineer the Software; (iv) publish the Software for others to copy; (v) use the Software in any way that is against the law or contrary to the terms of this Agreement; (vi) remove or modify any copyright notices or other proprietary markings contained within or generated by the Software; (vii) link or compile the Software to or with any third party software without Licensor’s prior written permission, which consent Licensor may grant or withhold in its sole discretion; or (viii) copy and use any image from the Software (including screen captures) in any document intended for display to or consumption by persons or entities that are not the licensed user of the Software without the prior written consent of Licensor. You may use the Documentation only in support of Your use of the Software and You may print or duplicate the Documentation, but only for internal use and provided that each copy includes all of the copyright or related notices of the original.
e. You acknowledge and agree that the Software is subject to U.S. laws governing the export and/or re-export of the Software including, but not limited to, the Export Administration Regulations, regulations promulgating financial transaction restrictions administered by the Office of Foreign Asset Controls of the U.S. Department of the Treasury, the International Emergency Economic Powers Act, the United States Export Administration Act, the United States Trading with the Enemy Act, and all regulations, orders and licenses issued thereunder (collectively the “Export Laws“). You warrant that You are and will remain in compliance with all such Export Laws with respect to the Software, and You acknowledge that Export Laws may change over time. You additionally warrant that You have not been, and are not currently, debarred, suspended, prohibited or impaired from receiving, purchasing, procuring, or otherwise obtaining any product, commodity, or technical data regulated by any agency of the government of the United States.
f. If You are the USA Department of Defense (“DOD”), the Software is subject to “Restricted Rights,” as that term is defined in the DOD Supplement to the Federal Acquisition Regulations section 252.227-7013(c). If You are any unit or agency of the U.S. Government other than the DOD, Your rights in the Software will be defined in paragraph 52.227-19(c)(2) of the Federal Acquisition Regulations. Any use, duplication, reproduction, or disclosure by the U.S. Government is subject to such restrictions. Contractor/Manufacturer is: Flow Science, Inc., 683 Harkle Road, Santa Fe, NM 87505.
a. This Agreement shall terminate upon occurrence of any of the following events: (i) any breach of Sections 3 or 5 hereof, in which event the termination shall be deemed to have occurred effective immediately; (ii) Your failure to observe or perform any other material covenants, terms, and conditions of this Agreement where such nonperformance is not fully remedied by You within thirty (30) days after written notice from Licensor; or (iii) the filing of a petition for Your bankruptcy, whether voluntary or involuntary, or an assignment of Your assets made for the benefit of creditors, or the appointment of a trustee or receiver to take charge of Your business for any reason, or Your becoming insolvent or voluntarily or involuntarily being dissolved.
b. Upon termination of the Agreement, Licensor shall have the right, without notice, to repossess the Software. In addition, Licensor shall have all other remedies and damages available to it in law or equity. Licensor is entitled to reimbursement from You for any expenses, legal fees, and/or court costs incurred in the enforcement of its rights hereunder or in the collection of damages.
a. The Licensor warrants that it has the right to grant to You a license and warrants that the Software does not infringe third party intellectual property rights. Licensor shall indemnify and hold You harmless from and against any claim of infringement of a United States patent or copyright based upon the Software, provided You give Licensor prompt notice of and the opportunity to defend any such claim. Licensor shall have the right to settle such claim or, at Licensor’s option, provide You: (i) substitute functionally equivalent software; or (ii) a refund of a pro rata portion of the license fee paid for the Software. Licensor will not be responsible for any breach of warranty caused by modifications (or attempted modifications) to the Software made by or on behalf of You, whether authorized or unauthorized, or any combination of the Software with any other software by You or on Your behalf.
b. The warranty and the obligation and liability of Licensor expressed in the preceding paragraph are the sole warranties provided to You and they extend only to You. Said warranty is in lieu of, and YOU HEREBY WAIVE, ALL OTHER GUARANTEES AND WARRANTIES OR OBLIGATIONS AND LIABILITIES OF LICENSOR HEREUNDER, EXPRESSED OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY AND ALL OBLIGATIONS AND LIABILITIES WITH RESPECT TO USE OF THE SOFTWARE OR USE OF RESULTS AND DATA DERIVED FROM SUCH USE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES OR LOSSES, INCLUDING LOSS OF USE, DATA, REVENUE, OR PROFIT. You agree that the obligations of Licensor as set forth herein shall constitute the sole remedy for a claim relating in any way to the Software provided under this Agreement. The liability of Licensor shall in all cases be limited to the purchase price of the Software.
c. THE REMEDIES SET FORTH IN THIS SECTION 7 ARE THE SOLE AND EXCLUSIVE REMEDIES TO WHICH YOU ARE ENTITLED FOR BREACH OF WARRANTY.
a. Licensor takes certain steps to attempt to minimize unauthorized use and piracy of the Software. In this context, the Software may include a security mechanism that can detect the installation or use of illegal copies of the Software, and collect and transmit data about those illegal copies. By using the Software, You consent to such detection and collection of data, as well as its transmission and use if an illegal copy is detected.
b. The Software utilizes an interface with Transport Layer Security (TLS), which are cryptographic protocols designed to provide communications security over the computer network to allow the Software to connect to Licensor’s secure server in the United States for purposes of delivering You an RSS feed. The importation or use of encrypted protocols such as TLS may contravene the laws of the jurisdiction in which You reside, and You acknowledge and accept that (i) it is Your responsibility to insure that You are in compliance with Your local laws and (ii) Licensor is not responsible to insure Your compliance with local laws or to support You in the use of the TLS encryption if it is against the law in Your jurisdiction. To facilitate compliance, Licensor enables You to opt out of connecting to the RSS feed, thereby disabling the use of the TLS encryption.
Licensor shall have the right, upon reasonable notice to You, to audit Your use of the Software no more than once each calendar year to assure compliance with the terms of the agreement between Flow Science and You. If an audit reveals that You have underpaid license fees to Licensor as a result of misuse or overuse of solver tokens, You shall compensate Licensor based upon Licensor’s price list in effect at the time the audit is completed. If the underpaid fees exceed five percent (5%) of the license fees previously paid by You, then You shall also pay Licensor’s reasonable cost of conducting the audit.
a. A party’s exercise of, or failure to exercise, any right, remedy, or privilege under this Agreement will not constitute a waiver of any rights of that party under this Agreement.
b. A judicial determination that any provision of this Agreement is invalid, illegal, or unenforceable shall not affect the enforceability of any other provision.
c. The provision of Sections 3(b), 3(c), 4(d), 5, 6(b) and 7 through 10 will survive termination of the underlying Acquisition Agreement which resulted in the applicability of this Agreement or any license for the Software
d. You acknowledge and agree that You (and any third party acting on Your behalf) may be required to provide, and Licensor may need to obtain from You, certain information and data with respect to You (including, without limitation, certain limited personal information) and Your business in connection with ordering, registration, activation, updating, validating entitlement to, auditing, monitoring installation of and access to the Software. You hereby consent to Licensor maintaining, using and storing such information and data for such purposes. Without limitation of the generality of the foregoing, You acknowledge and agree that Licensor may from time to time provide information and data, including, without limitation, information and data about Licensee’s use of the Software, to Distributors and that such provision of information and data may be made across borders , including to jurisdictions with privacy or data protection laws that are less protective of You than the jurisdiction in which You are domiciled. You acknowledge and understand that Licensor may modify its policies regarding data collection and transfer from time to time.
e. Licensor reserves the right, without limitation, and without obtaining prior approval from or notice to You, to make changes in and to the Software.
f. This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of New Mexico, as applied to agreements entered into and to be performed entirely within New Mexico between New Mexico residents without reference to conflict of laws. This Agreement and the performance of the Parties required hereunder shall not be governed by or otherwise subject to the United Nations Convention for the International Sale of Goods. Any civil suit or proceeding relating to this agreement shall be brought only in U.S. Federal District Court or State District Court within the State of New Mexico, and each of the Parties consent to the personal jurisdiction and venue of such courts. Judgment upon any award made in such proceeding may be entered and enforced in any court of competent jurisdiction.
g. In the event of any conflict between the terms of this Agreement and the applicable Acquisition Agreement, the terms of the Acquisition Agreement shall prevail. If there are any terms in either agreement which are different from, but not inconsistent or in conflict with the other agreement, then such terms shall bind the parties.