THE TERMS AND CONDITIONS OF THIS END-USER LICENSE AGREEMENT SHALL GOVERN YOUR USE OF THE SOFTWARE. READ THIS LICENSE CAREFULLY BEFORE INSTALLING AND USING THE SOFTWARE. BY USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
1. 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 (or the entity under whose authorization You are using the Software) and Licensor or one of its authorized distributors. Such agreement governs, among other things, the specific FLOW-3D® Product that is licensed to you, the number of allowed concurrent instances, price, license duration, and rights to technical support and upgrades.
“Agreement” means this End-User License Agreement
“Documentation” means manuals, release or installation notes related to FLOW-3D Products and/or FlowSight, including electronic versions thereof.
“FLOW-3D Product” means those 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 is now available or 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”).
“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.
3. License Management. In connection with the License granted herein, Licensor will issue one or more electronic license files which shall be tied to either a FLEXlm® hardware dongle or to the Ethernet address of a designated 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. You agree not to take any steps to avoid or defeat the purpose of such 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 verification. Use of the Software on a network is restricted to a fifty-mile radius around one geographic location, unless otherwise authorized by Licensor.
4. Maintenance. If arrangements for technical support have been made, only the person designated by You as the “Registered User”, or persons who have attended a FLOW-3D Training Class, 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 normal business hours.
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 not be obligated to provide technical support unless You are using the current version of the FLOW-3D Product You are licensed to use or the previous major release thereof.
If You are an academic user and have purchased maintenance service, such service is limited to the following: (a) Licensor will provide User with software upgrades when they become available; (b) Licensor will assist in installation of the code and will answer questions about how to use the input variables to implement the various models in FLOW-3D; (c) at its option, Licensor will analyze results that appear obviously incorrect because they don’t seem to reproduce simple analytical results or expected conservation laws; (d) Licensor will also provide access to a number of subroutines to allow users to implement small changes to FLOW-3D, including boundary conditions and material properties; (e) Licensor will not assist in the making of revisions or customizations to the Software.
5. Use and Limitations. The Software is the property of Licensor, or with respect to FlowSight, of CEI. You recognize that the Software is copyrighted under the laws of the United States of America 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.
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.
You agree to take all necessary action to protect the confidential and proprietary information in the Software 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 credit Licensor and the Software in any written or verbal presentation where results obtained using the Software are discussed.
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; or (v) use the Software in any way that is against the law or contrary to the terms of this Agreement. 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.
The License and the rights granted hereunder are subject to Your compliance with all laws, regulations, orders, or other regulations relative to export or redistribution of the Software that may now or in the future be imposed by the government of the United States or any agency thereof or of any other country into which the Software may be transported. Any act of noncompliance shall immediately terminate this License.
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.
6. Termination. This Agreement shall terminate upon occurrence of any of the following events: (a) any breach of Sections 3, 4 or 5 hereof (effective immediately); (b) 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 (c) 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.
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.
7. Warranties. 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 gives 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) a paid-up license; (ii) substitute functionally equivalent software; or (iii) a refund of a pro rata portion of the license fee paid for the Software.
The warranty and the obligation and liability of Licensor expressed in the preceding paragraph are 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, LOSS OF USE, DATA, REVENUE, OR PROFIT, OR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. 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.
8. 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. Data collected will not include any customer data created with the Software. 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.
9. Audit. 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 by overuse of solver tokens, You shall agree to compensate Licensor based upon Licensor’s price list in effect at the time the audit is completed. If the underpaid fees exceed 5% of the license fees previously paid by You, then You shall also pay Licensor’s reasonable cost of conducting the audit.
a) The parties’ 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) You acknowledge and agree that You (and any third party acting on Your behalf) may provide, and Licensor (and third parties acting on behalf of Licensor) may obtain, certain information and data with respect to You (including, without limitation, personal information) and Your business in connection with this Agreement, including, without limitation, information and data provided to or obtained by Licensor (or third parties acting on behalf of Licensor) through a Customer Information Form and otherwise, 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 (including, without limitation, personal information, if any) for such purposes. Without limitation of the generality of the foregoing, You acknowledge and agree that: (a) Licensor may from time to time provide information and data, including, without limitation, information and data about Licensee’s use of the Software, to Licensor’s affiliated and unaffiliated distributors; and (b) Licensor may make cross-border transfers of such information and data, 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 agree that such policies may be changed from time to time by Licensor.
d) Licensor reserves the right, without limitation, and without obtaining prior approval from or notice to You, to make changes in and to the Software.
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.
f) 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.