THESE TERMS AND CONDITIONS SHALL GOVERN YOUR USE OF THE SOFTWARE AND THE LICENSE FOR IT GRANTED TO YOU FOR USE IN CONNECTION WITH YOUR ATTENDANCE AT A WORKSHOP PRESENTED BY FLOW SCIENCE, INC. (“THE LICENSE”). BY YOUR ACCEPTANCE AS INDICATED BY CHECKING THE BOX ENTITLED “I ACCEPT” ON THE WORKSHOP REGISTRATION PAGE, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
1. The Software is licensed to You by Flow Science, Inc. (“Licensor”) on a nonexclusive and nontransferable basis, subject to the terms and conditions set forth herein. The license shall have a duration of thirty (30) days from the date of the workshop for which You have registered, unless Licensor agrees to extend it. The license allows for You to run one (1) concurrent instance of the Software’s solver executable on up to sixteen (16) CPU/cores. You agree that You shall not attempt to exceed the number of authorized concurrent simulations using the Software’s solver module and that You shall not attempt to exceed the number of authorized CPU/cores.
YOU UNDERSTAND THAT YOU ARE OBLIGATED TO RESTRICT YOUR USE OF THE SOFTWARE TO USE FOR EVALUATION PURPOSES ONLY, AND YOU AGREE THAT YOU SHALL NOT USE THE SOFTWARE FOR ANY COMMERCIAL PURPOSE OTHER THAN EVALUATION OF THE CAPABILITIES OF THE SOFTWARE.
“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 CAST, FLOW-3D AM, FLOW-3D WELD, FLOW-3D DEM, 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.
“Software” means such computer program(s) from among the FLOW-3D Products that is licensed to You hereunder, FlowSight, the Documentation, and any backups or other copies.
“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.
3. License Management.
- To facilitate the License granted herein, Licensor will issue You an electronic license file. Such license file 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 as well as the number of CPU/cores which may be accessed for the execution of the Software.
- 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.
4. Use and Limitations.
- 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.
- 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 these Terms and Conditions, You acquire only the right to use the Software pursuant to these Terms and Conditions.
- 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.
- You may use the Software only as expressly permitted in these Terms and Conditions. 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; (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 these Terms and Conditions; (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.
- 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.
- Your right and license to use the Software shall terminate upon occurrence of any of the following events: (i) any breach of Sections 3 or 4 hereof, in which event the termination shall be deemed to have occurred effective immediately; or (ii) Your failure to observe or perform any other material covenants, terms or conditions of these Terms and Conditions.
- 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.
- 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 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.
- 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 these Terms and Conditions.
- THE REMEDIES SET FORTH IN THIS SECTION 6 ARE THE SOLE AND EXCLUSIVE REMEDIES TO WHICH YOU ARE ENTITLED FOR BREACH OF WARRANTY.
- 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.
- 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.
- A party’s exercise of, or failure to exercise, any right, remedy, or privilege under these Terms and Conditions will not constitute a waiver of any rights of that party under these Terms and Conditions.
- A judicial determination that any provision of these Terms and Conditions is invalid, illegal, or unenforceable shall not affect the enforceability of any other provision.
- The provisions of Sections 3(b), 4, 5(b), 6, and 7 will survive termination of the license for the Software.
- 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 third party 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.
- These Terms and Conditions 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. These Terms and Conditions 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 these Terms and Conditions 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.