TERMS AND CONDITIONS OF SALE - SOFTWARE PRODUCTS LICENSE
1. ACCEPTANCE OF SOFTWARE AS ACCEPTANCE OF LICENSE
Acceptance of Software by you (the “Licensee”), as indicated by express acceptance, by physical acceptance, by downloading, and/or use of the Software, is acceptance of the license herein granted and of its terms and conditions. If you do not agree with the terms of this Software Products License Agreement, promptly return, unopened, all Software to Licensor for a refund of the price
2. GRANT OF LICENSE
Upon acceptance of the Software by the Licensee and payment of the licensing fees to the Licensor, the Licensor grants to the Licensee a license for in-house use on designated equipment of all Software specified in the Licensor’s License Quotation Document (Licensor’s Quotation [or Proposal or Order Acknowledgement] Document) (“LQD”) with any and all site, geographic, equipment, and/or use restrictions noted in the Order Acknowledgment that you have received/will receive from the Licensor. The license is solely for the design, analysis, and/or manufacture of the Licensee’s current or future turbomachinery products, and to reproduce Software only as reasonably necessary to support the authorized use. The Software, Software revisions, and any documentation furnished to the Licensee are proprietary to the Licensor. The Licensee agrees that it can obtain only a license to use the Software in accordance with all of the terms and conditions herein.
3. INTERNAL USE
Licensee shall use the Software only for its own internal business purposes and shall not, without the prior written approval of Licensor, either allow any third party to obtain or to have access to the Software in any form or allow any use of the Software for the benefit of any third party. “In-house users” are those users of the Software whose personal services are paid for by the Licensee.
4. NUMBER OF USERS
Unless otherwise stated in an LQD expressly agreed to by the Licensor, Licensee has obtained a single license for the licensed Software that grants to the Licensee the right for only one person to access the licensed Software at any given time. However, the licensed Software may be accessible from more than one computer. A license file or security key may be provided that must be used to ensure only the agreed upon use of the licensed Software.
5. TYPES OF LICENSES GRANTED
Licensor grants limited types of Software licenses. Which type the Licensee has chosen is determined from the LQD, including a comparison of the Licensor’s current standard rates with the license fees paid, tendered, or acknowledged by the Licensee. In no case is a license granted for use of the Software in a US Department of Commerce Restricted Country, however designated, or for use by a person or other entity that is on any US government restricted or barred list, however designated. The types of licenses are:
- Fixed-Node or Single-Seat. Defined as a license to access the Software, one user at a time, on a pre-designated computer (CPU).
- Area Floating. Defined as a license for the number of simultaneous users as specified in the LQD to access the Software, from sites separated from a primary site by no more than one hundred (100) straight-line map miles (161 straight-line map kilometers).
- Site. Defined as a license for the number of simultaneous users as specified in the LQD to access the Software from a single building or campus of buildings.
- North America Floating. Defined as a license for the number of simultaneous users as specified in the LQD to access the Software, from any location in North America (to include the Caribbean Islands except Cuba).
- Europe Floating. Defined as a license for the number of simultaneous users as specified in the LQD to access the Software, from any location in the European Union.
- Global Floating. Defined as a license for the number of simultaneous users as specified in the LQD to access the Software, from any location not in a country on a United States Department of Commerce restricted countries list by whatever name it takes.
- Global. Defined as a license for multiple simultaneous user access from any locations not in a country on a United States Department of Commerce restricted countries list by whatever name it takes. To be effective a Global license must by signed by Licensor’s Chief Executive Officer.
6. EXPORT AND RE-EXPORT FORMALITIES
United States export laws and regulations, as well as other laws and regulations of the United States or other countries, may place restrictions upon the geographic area of use, upon the end use, or upon the end user of the licensed Software. Licensee agrees that it has the responsibility to determine and to comply with all such laws and regulations, especially whenever there is a change in locations of access, in users, or in uses of the licensed Software.
7. ACKNOWLEDGMENT OF PROPRIETARY RIGHTS
- Licensee acknowledges that Licensor holds all right, title, and interest in and to all tangible and intangible incidents of the Software, including all Trade Secrets and Copyrights pertaining thereto, and that the Agreement conveys to Licensee only a limited right to use the Software. Such right to use is fully revocable hereunder by Licensor. Licensee agrees that, except for such right of use, it shall not assert any right, title, or interest in or to the Software or Documentation.
- Licensee acknowledges that the Software constitute commercially valuable, proprietary, confidential products of Licensor, the design and development of which reflect a considerable effort on the part of skilled development professionals and the investment of considerable time and Licensee further acknowledges that the Software contain substantial Trade Secrets of Licensor, which have been entrusted to Licensee for use only as expressly authorized under this Agreement. As used herein, Trade Secrets entail any scientific or technical information, design, process, procedure, formula, or improvement that is commercially valuable and secret (in the sense that its confidentiality affords Licensor a competitive advantage). Trade Secrets include, without limitation, the source code, system design and specifications, programming sequences, algorithms, flow charts, and formats pertaining to the Software. Trade Secrets do not include, however, any data or information that is generally known to the public, that (1) has been or is disclosed to Licensee as a matter of right and without restriction by a third party who has lawfully obtained such data or information; (2) is independently developed by Licensee without reliance in any way on the Software or Documentation; or (3) is approved in writing by Licensor for unrestricted publication by Licensor. If required by order of a government authority within its powers, Licensee may disclose to such authority data, information, or materials pertaining to or involving the Software to the extent required by such order, provided that Licensee shall first have used its best efforts to obtain a protective order reasonably satisfactory to Licensor sufficient to maintain the confidentiality of such data, information, or materials and shall promptly notify Licensor of any such order or anticipated order.
- Licensee acknowledges Licensor’s rights and benefits afforded under U.S. copyright law and all international copyright conventions in all Software as restricted, unpublished works. The Licensee agrees not to release it outside of the purchasing organization without prior written approval from the Licensor. The Licensee is not authorized to make copies of the Software without prior written approval from the Licensor except that the Licensee may make one copy for archival or backup purposes only. All applicable rights in patents, copyrights, trademarks, service marks, and trade secrets in the Software, Software revisions and documentation are and will remain the property of the Licensor.
8. PROTECTION OF CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS
- Licensee shall devote its best efforts, consistent with the practices and procedures under which it protects its own most valuable proprietary information and materials, to protect the Software against any unauthorized or unlawful use, disclosure, dissemination, or copying. No license or permission is given for the reproduction of Software by any means. Extra copies of Documentation may be purchased from Licensor at any time.
- Licensee shall not, at any time, disclose or disseminate the Software or Documentation, or the Trade Secrets and confidential information embodied therein, whether in whole or in part, to any employee, consultant, contractor, or other person who (1) does not have need to know and to obtain access thereto in order to give effect to the rights granted to Licensee under this Agreement or (2) is not legally bound by written agreement with the Licensee to maintain the proprietary and confidential nature of such materials and to limit use and copying thereof and access thereto as required by the terms of this Agreement Licensee shall take appropriate action, by instruction, agreement, and otherwise, with any persons authorized to have access to the Software, so as to enable Licensee to fulfill the foregoing obligations.
- Under no circumstances may Licensee decompile, reverse engineer, or disassemble the Software.
9. PROPRIETARY LEGENDS
Licensee shall reproduce and include in all authorized (backup) copies of the Software and Documentation all proprietary notices or legends of Licensor including, without limitation, all such notices or legends referring to Licensor's reservation or assertion of rights under U.S. copyright laws and international copyright conventions as they now appear, or as Licensor may in the future furnish to Licensee, on the Software and on the media and packaging containing the Software.
10. RETURN OF MATERIALS UPON TERMINATION
Within 60 days after termination of this Agreement in any way or upon Licensee's permanent cessation of use of the Software, Licensee shall return to Licensor all copies of the Software. Licensee shall destroy all extracts, adaptations, and transcriptions of the Software and cease all further use or production thereof. Licensee shall send a written statement to Licensor that it has complied with the foregoing obligation, which statement shall be certified as complete, current, and accurate by the authorized representative of the Licensee charged with general responsibility for the operation of the Software.
11. MAINTENANCE OF RECORDS
Licensee shall maintain complete, current, and accurate record of the number and location of all copies of the Software (including all extracts, adaptations, or transcriptions thereof) and, upon request by Licensor, make such records available for review by Licensor representatives.
12. RIGHT OF ENTRY AND INSPECTION
Licensor may enter the premises of Licensee, on 24 hours' notice, during regular business hours and in the least disruptive manner possible, for the purpose of inspecting the placement and use of the Software and the standard procedures of Licensee regarding retention, safekeeping, and disposal of all media and materials pertaining thereto. At that time, Licensor may question employees of Licensee in proximity to the Software about Licensee's compliance with the procedures required in the Agreement.
13. COMPLIANCE WITH LAW
- Licensor. The Licensor shall comply with applicable laws and regulations in effect at the latter of the Licensor’s quotation or order fulfillment, as they may apply to the Software.
- Licensee. Compliance with any local government laws or regulations relating to the use of the Software, shall be the sole responsibility of the Licensee.
After delivery of the Software to the Licensee, the Licensee shall have sole and complete responsibility for complying with all laws and regulations of all countries regarding the use of the software. In particular, if this License permits floating use of the Software among employees of the Licensee, the Licensee shall have sole and complete responsibility for compliance with all laws and regulations relating to export or re-export or confidentiality of the Software.
14. TITLE AND RISK OF LOSS
Title and risk of loss to the Software shall pass to the Licensee upon tender of delivery “F.O.B. the Licensor’s facility” unless otherwise agreed upon in writing by the parties, except that a security interest in the Software will remain in the Licensor, regardless of mode of attachment to realty or other property until full payment has been made therefore. Licensee agrees upon request to do all things and acts necessary to perfect and maintain said security interest and shall protect Licensor’s interest.
15. ASSIGNMENT AND DELEGATION
Licensee may not assign or transfer any of its rights in, or delegate any performance under, this contract without the prior written consent of the Licensor. The Licensor however may assign or transfer, without the consent of the Licensee, the Licensor’s right to receive all or any portion of the payment due from the Licensee under this License. The Licensor may assign or transfer the entire contract in a transaction that transfers substantially the entirety of the Licensor’s business in the Software being licensed.
16. SURVIVAL OF OBLIGATIONS
Licensee's obligations of confidentiality, non-disclosure, and non-infringement shall survive the termination of the Agreement and remain in effect for so long as Licensor is entitled to protection of its rights in the Software under applicable law.
17. INJUNCTIVE RELIEF
Licensee acknowledges that, in the event of a breach by Licensee of any of the provisions hereof, Licensor will not have an adequate remedy in money or damages. Licensor shall therefore be entitled to obtain injunctive relief against Licensee in any court of competent jurisdiction in the event of any such breach. Licensor’s rights hereunder shall not in any way be construed to limit or restrict its right to seek or obtain other damages or relief under this Agreement or under applicable law.
18. U.S. GOVERNMENT AS LICENSEE
The Software is only provided with “Restricted Rights.” Use duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Concepts NREC, 217 Billings Farm Road, White River Jct, VT 05001, USA.
19. LIMITED WARRANTY
Licensor warrants that the software will substantially conform to published specifications and to the documentation, provided that it is used on computer hardware and with the operating system for which it was designed. Licensor further warrants that the media on which the software is distributed, and the software security keys necessary to use the software, are free from defects in materials and workmanship. Licensor will replace defective media or security keys at no charge, provided that the items are returned to Licensor within 60 days of date of delivery. Licensor will also replace, at the Licensee's cost on a time and materials basis, security keys damaged due to the Licensee's misuse. Replacement keys will not be issued in any case until the original keys have been received by Licensor. These are the Licensee's sole remedies.
20. LIMITATION OF LIABILITY
- BECAUSE SOFTWARE IS INHERENTLY COMPLEX AND MAY NOT BE COMPLETELY FREE OF ERRORS, THE LICENSEE IS ADVISED TO VERIFY ALL WORK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE, THE ACCOMPANYING WRITTEN MATERIALS, AND ANY ACCOMPANYING HARDWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Licensor BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR INCIDENTAL, CONSEQUENTIAL, COMPENSATORY OR EXEMPLARY DAMAGES, ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- The remedies of the Licensee set forth herein are exclusive. The liability of the Licensor with respect to an order or contract shall not exceed an amount equal to the price paid by the The Licensor shall in no event be liable to the Licensee for any direct, indirect, special, punitive, consequential or incidental damages, including lost profits or revenues, arising out of the use or inability to use the Software.
Delivery dates are estimated. In no event will dates be construed as falling within the meaning of “time is of the essence”.
22. EXCUSABLE DELAYS
The Licensor shall not be liable for any loss or delay due to war, riots, fire, flood, strikes or other labor difficulty, acts of civil or military authority including governmental laws, order, priorities or regulations, acts of the Licensee, embargo, car shortage, damage or delay in transportation, inability to obtain necessary labor or materials from usual sources, or other causes beyond the reasonable control of the Licensor. In the event of delay in performance due to any such cause, the date of delivery or time for completion will be adjusted to reflect the actual length of time lost by reason of such delay. The Licensee’s acceptance of Software constitutes a waiver of any claims for delay from any cause.
The price of the Software does not include any present or future Federal, State, or local property, license, privilege, sales, use, excise, gross receipts or other taxes or assessments which may be applicable to, measured by, imposed upon or result from this transaction or any services performed in connection therewith. Such taxes will be itemized separately to Licensee, who shall make prompt payment to the Licensor. In lieu of payment for taxes the Licensor shall accept a valid exemption certificate from Licensee, if applicable. If such exemption certificate is not recognized by the governmental taxing authority involved, Licensee shall promptly reimburse the Licensor for any taxes that are covered by such exemption certificate and that the Licensor is required to pay.
24. SET OFFS
Licensee, any affiliated company, any successor, or any assignee cannot claim compensation or set off any asserted claim against any amounts that are, or become, payable to the Licensor under this license or otherwise.
The Software is a mathematical analysis tool intended to assist Licensee in Licensee's development/design process and requires considerable skill and judgment for its correct use and for the interpretation of the computed results. The Software is not intended to be nor is it a substitute for rigorous and comprehensive prototyping or other testing by Licensee of products prior to production and sale. Licensee agrees to defend, indemnify and hold the Licensor harmless against any liability or claim made against the Licensor or the Licensee arising from Licensee's use of the software except a claim for patent or copyright infringement or a claim arising out of the Licensor's willful misconduct or gross negligence.
The Licensor warrants that the Software, when delivered and properly installed, will operate properly on designated equipment, reproducing the computer output of its embedded sample case within engineering accuracy. The Licensor agrees to provide, until replacement of the Software, corrections for any material error reported and determined to be in the Software, documentation, or operational procedures in an expeditious manner and at no further cost.
THE LIMITED EXPRESS WARRANTIES SPECIFIED ABOVE ARE THE ONLY WARRANTIES MADE BY LICENSOR AND THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
27. NUCLEAR LIABILITY
In the event that the Software sold hereunder is to be used pertaining to a nuclear facility, the Licensee shall, prior to such use, arrange for insurance or governmental indemnity protecting the Licensor against liability and hereby releases and agrees to indemnify the Licensor and its suppliers for any nuclear damage, including loss of use, in any manner arising out of a nuclear incident, whether alleged to be due, in whole or in part to the negligence or otherwise of the Licensor or its suppliers.
This License has been transacted in the English language. In the event of any inconsistency between any translation hereof and the English language version, the English language version will govern.
Waiver by Licensor of any breach hereof is not a waiver of future strict compliance with all obligations of the Licensee.
This License is effective until terminated by the breach of its terms by the License Failing to make a payment to renew a limited time license shall be a breach. Upon any breach, this License terminates immediately and automatically without notice from the Licensor. In such event, Licensee shall immediately cease using the Software and shall return all copies of the Software to the Licensor.
If any provision of this License Agreement is held to be illegal or unenforceable, then such provision will be considered modified to a legal and enforceable form that best reflects the parties’ intention. All remaining provisions hereof shall remain in full force and effect.
32. DISPUTE RESOLUTION
All controversies and claims arising under or relating to this agreement are to be resolved by the courts of the state of Vermont, USA, applying Massachusetts law excluding Massachusetts choice of law rules. Objections to personal jurisdiction of the parties are irrevocably waived.
33. COMPLETE AGREEMENT
This is the complete agreement of the parties notwithstanding any prior discussions or agreements or any terms and conditions asserted in purchase orders or in previous agreements, however denominated, whether or not referencing this transaction, or otherwise.
Should you have questions concerning this Agreement, or if you desire to contact Licensor for any reason, please write or call Concepts NREC Customer Software Support, 217 Billings Farm Road, White River Junction, VT 05001, USA. Telephone: 802-296-2321; Fax: 802-296-2325.
SoftwareLic061807 Rev. 01 – 01/2017