ENSIGHT ® END USER LICENSE AGREEMENT
UNLESS A SEPARATE LICENSE OR TRIAL AGREEMENT DOCUMENT EXISTS BETWEEN THE LICENSEE AND CEI OR AN AUTHORIZED CEI DISTRIBUTOR, THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL GOVERN YOUR USE OF THE EnSight SOFTWARE. READ THIS LICENSE CAREFULLY BEFORE USING THE EnSight SOFTWARE. BY USING THE EnSight SOFTWARE YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT OR AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, PROMPTLY RETURN THE EnSight SOFTWARE UNUSED WITHIN THIRTY (30) DAYS OF PURCHASE FOR A REFUND.
1. LICENSE GRANT. The Licensee is hereby granted by Computational Engineering International, Inc. (“CEI”) a single, non-transferable and non-exclusive license to use the EnSight Software under the terms and conditions set forth below, in binary form only, and at the major release level indicated on the media used to deliver the licensed EnSight Software.
2. DEFINITIONS. “Ancillary Software” includes translators, user defined data readers, tools, or other software which may from time to time be delivered with, but separate from, the “EnSight Software”. “End User” means one individual running an EnSight process. “EnSight Purchase Agreement” means the document provided by Licensee to CEI which describes the type of installation Licensee is authorized to make. “EnSight Documentation” means manuals, release or installation notes related to the EnSight Software, including electronic versions thereof. “EnSight Software” means all of the CEI computer programs that constitute standard EnSight or EnSight Gold, the EnSight Documentation, the Third-Party Libraries (if licensed through CEI), and any backups or other copies. “Maximum Seats” means the maximum authorized number of End Users who may simultaneously use the licensed copy of the EnSight Software as identified in the EnSight Purchase Agreement. “Major Release Level” means all versions of the EnSight Software which are denoted by the same integer number to the left of the first decimal point in the specification of the release. For example, all versions denoted as EnSight 8.x are regarded as the same Major Release Level.
3. USAGE LIMITATIONS. Licensee acknowledges that the EnSight Software is proprietary and shall remain the property of CEI. This License is not a sale. Title to and ownership of the EnSight Software and any copies thereof, any patents, trademarks or copyrights incorporated therein and to the CEI Proprietary information shall at all times remain with CEI. No rights to rent, loan, transfer, relicense, distribute, or otherwise assign any or all of Licensee's rights in the EnSight Software are granted. All rights not specifically granted to Licensee by this license shall remain in CEI. CEI may include features in the EnSight Software which prevent unlicensed use or use after license expiration. The license granted herein does not include provision of support and maintenance service or future releases or versions of the EnSight Software.
4. INSTALLATION. EnSight may be installed and used by the Licensee only in the manner indicated in the EnSight Purchase Agreement. End User may use EnSight only at his immediate workplace, unless otherwise authorized by CEI. Subject to request of and approval by CEI, Licensee may permanently or temporarily change the systems and / or networks upon which Licensee is authorized to use the EnSight Software. In either case, such change may result in additional charges to the Licensee. Licensee may duplicate the EnSight Software for backup, archiving, or security, provided that each copy includes all of the copyright or proprietary notices of the original. Licensee shall not clone, reverse assemble, or reverse compile any part of the EnSight Software or adopt any part of the EnSight Software as its own. CEI reserves the right to
charge an upgrade fee for future Major Release versions of the EnSight Software.
5. PATENTS AND COPYRIGHTS. EnSight is copyrighted under the laws of the United States and international treaty provisions. Notwithstanding the copyright, the EnSight Software contains trade secrets and proprietary information of CEI. Licensee acknowledges that CEI owns these copyrights and has the following exclusive rights with regard to the EnSight Software: to reproduce it; to adapt, transform or rearrange it; to prepare derivative works from it; and to control its distribution. Licensee agrees not to act in contravention of any of CEI’s intellectual property rights.
6. EnSight DOCUMENTATION. Licensee may use the EnSight Documentation only in support of its use of the licensed EnSight Software and may print or duplicate the Documentation (except any marked as proprietary), but only for its internal use and provided that each copy includes all of the copyright or related notices of the original.
7. WARRANTY; DISCLAIMER. CEI warrants that for a period of thirty (30) days after delivery of the EnSight Software, it will substantially conform in all material respects to the specifications set forth in CEI’s published EnSight Documentation. If the EnSight Software does not meet this requirement, and Licensee notifies CEI within thirty (30) days after delivery, CEI will, at its option, repair or replace the effected EnSight Software. This warranty excludes problems caused by acts of Licensee, unauthorized use of or causes external to the EnSight Software, and items which would be covered under Support and Maintenance service. CEI specifically does not warrant, guarantee, or make any representations regarding the use, or the results of the use, of the EnSight Software or Documentation in terms of correctness, accuracy, reliability, currentness, or otherwise. The entire risk as to the result produced by and the performance of the EnSight Software is assumed by the End User. CEI does not warrant that the execution of the EnSight
Software will be uninterrupted or error free. CEI WARRANTS THE ANCILLARY SOFTWARE
ACCORDING TO THE TERMS FOUND IN THE LICENSE_AND_WARRANTY_AND_SUPPORT FILE OF
THE src DIRECTORY OF THE SOFTWARE INSTALLATION. THE ABOVE WARRANTIES ARE CEI’S
ONLY WARRANTIES AND ARE IN LIEU OF ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, AND THE ABOVE REMEDIES ARE THE EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CEI OR ITS
EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS
WARRANTY, AND LICENSEE MAY NOT RELY ON SUCH INFORMATION OR ADVICE. LICENSEE’S SOLE REMEDY AND CEI’S SOLE OBLIGATION SHALL BE GOVERNED BY THIS AGREEMENT. LICENSEE EXPRESSLY AGREES THAT IN NO EVENT SHALL CEI BE LIABLE FOR ANY ON SEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES ARISING FROM THE BREACH OF WARRANTY, NEGLIGENCE, OR ANY OTHER LEGAL THEORY, WHETHER IN TORT OR CONTRACT, EVEN IF CEI HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, INCLUDING WITHOUT LIMITATION DAMAGES FROM INTERRUPTION OF BUSINESS, LOSS OF PROFITS OR
BUSINESS OPPORTUNITIES, LOSS OF USE OF SOFTWARE, LOSS OF DATA, COST OF
RECREATING DATA, COST OF CAPITAL, COST OF ANY SUBSTITUTE PRODUCTS, OR LOSSES CAUSED BY DELAY. FURTHER, CEI SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR EXPENSES RESULTING FROM ALTERATION OR UNAUTHORIZED USE OF THE EnSight SOFTWARE OR FROM THE UNINTENDED AND UNFORESEEN RESULTS OBTAINED BY LICENSEE AND RESULTING FROM SUCH USE. IN ANY EVENT, CEI’S MAXIMUM LIABILITY UNDER ANY LICENSE OR OTHERWISE FOR ANY REASON SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY LICENSEE FOR THE CEI EnSight SOFTWARE, EXCLUSIVE OF ANY SUPPORT AND MAINTENANCE FEES PAID. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THE LIMIT.
8. THIRD-PARTY RIGHTS AND LICENSE. If Third-Party owned graphics libraries are sublicensed to Licensee by CEI, it will be so noted in the EnSight Purchase Agreement. All terms related to the EnSight Software, including and without limitation, terms related to limitation of remedies and restrictions on use, apply to the Third-Party Software.
9. LICENSE MANAGER SOFTWARE. If Licensee is authorized to install and use License Manager Software to enable the EnSight Software to execute on multiple computer systems on a network, it will be so noted in the EnSight Purchase Agreement. All terms related to the EnSight Software, including and without limitation, terms related to limitation of remedies and restrictions on use, apply to the License Manager Software. Licensees authorized to use License Manager Software may install multiple redundant license servers on the same network subnet node. Installation of multiple redundant license servers on different subnet nodes requires Licensee to submit a written request to CEI, stating that the use of multiple servers will not enable more than the maximum seats of the software to be used. Furthermore, Licensee agrees to submit License Manager log files upon request to CEI for verification. Use of EnSight on a network is restricted to one geographic location, unless otherwise authorized by CEI.
10. U. S. GOVERNMENT RESTRICTED RIGHTS. If the Licensee is the USA Department of Defense (“DOD”), the licensed EnSight Software is subject to “Restricted Rights” as that term is defined in the DOD Supplement to the Federal Acquisition Regulations (“DFARS”) section 252.227-7013(c). If the Licensee is any unit or agency of the U.S. Government other than the DOD, the Government’s rights in the EnSight Software will be defined in paragraph 52.227-19(c)(2) of the Federal Acquisition Regulations (“FAR”). Use, duplication, reproduction, or disclosure by the U.S. Government is subject to such restrictions. Contractor/Manufacturer is: Computational Engineering International, Inc., 2166 N. Salem Street., Suite 101, Apex, NC 27523, USA.
11. INVOICES; PAYMENT; TAXES. Licensee agrees to pay the License Fee(s) owed for this Software License as shown on a separate Invoice(s) from CEI. All Payments will be in U. S. Dollars. Payment is due within thirty (30) days after the date of each Invoice. Payment is considered made when good funds are received by CEI. To those Licensees leasing an EnSight Software License, future Invoices for the EnSight Software Lease Fee will be issued yearly in the month prior to that in which the initial payment of the EnSight Software Lease Fee was made to CEI. Licensees located in the State of North Carolina, USA are responsible for payment to CEI of all applicable State and Local sales taxes. Licensees located in any State other than North Carolina in the USA are directly responsible for payment of all State and Local sales taxes applicable at their location. Licensees located in any Country other than the USA are directly responsible for payment of all import and sales taxes to the responsible government(s) at their location. Licensees who have obtained a License through an authorized Distributor of CEI agree to comply with the Distributor’s payment terms and conditions.
12. SEVERABILITY. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law or not enforceable, the remaining provisions of this Agreement shall remain in full force and effect.
13. EXPORT. This License and the rights granted hereunder are subject to compliance by Licensee with all laws, regulations, orders, or other regulations relative to export or redistribution of Licensed 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 licensed EnSight Software may be transported and any act of noncompliance shall immediately terminate this License. If the Licensee imports the licensed copy of the EnSight Software into a country in which CEI has an authorized Distributor, then if the License was purchased the Licensee shall pay to CEI a Penalty Fee equal to one half the cost of the original Purchased License Fee.
14. TERM. If a License for the EnSight Software was purchased by Licensee, then this license is valid upon the date of initial payment of the Purchase License Fee to CEI by Licensee and shall continue until an event of Termination. If a License for the EnSight Software was leased by Licensee, then this license is valid for twelve (12) months from the date of initial payment of the Lease License Fee to CEI by Licensee and shall renew for subsequent twelve (12) month periods from the date Licensee pays the amounts indicated on each yearly invoice, according to Section11, unless an event of Termination occurs.
15. TERMINATION. This Software License Agreement shall terminate upon occurrence of any of the following events: (i) the failure of Licensee to observe or perform any of the material covenants, terms, and conditions of this Agreement where such nonperformance is not fully remedied by Licensee within thirty (30) days after written notice by CEI; (ii) any breach of Sections 3, 4, 6, 7, 8, 9, or 10 hereof (effective immediately); (iii) the filing of a petition for Licensee’s bankruptcy, whether voluntary or involuntary, or an assignment of Licensee’s assets made for the benefit of creditors, or the appointment of a trustee or receiver to take charge of the business of Licensee for any reason, or Licensee’s becoming insolvent or voluntarily or involuntarily being dissolved; or (iv) the use of a license purchased at an academic discount for purposes other than teaching or academic research. Termination of this Agreement under Section 15 shall be in addition to, and not a waiver of, any remedy at law or in equity. Notwithstanding the foregoing, the provisions of Sections 4, 6, 7, 8, 9, and 10 shall survive the termination of this agreement. Upon termination of this Software License Agreement, Licensee shall promptly cease to use and shall return to CEI all copies of the EnSight Software, the Ancillary Software, and EnSight Documentation.
16. GENERAL. Licensee may not assign or transfer its rights or obligations under this Agreement without the prior written consent of CEI. The parties agree that this Agreement shall be governed and construed by the laws of the State of North Carolina, USA, and that no conflict of- laws provision shall be invoked to permit the laws of any other state or jurisdiction. Any legal action must be filed within one (1) year after the cause for such action arises with the court of jurisdiction in the State of North Carolina, USA. All preprinted additional or different terms on any purchase order forms or other documents received from Licensee are deemed deleted and Licensee agrees that such terms shall be void even if the Licensee’s documentation indicates the terms therein take precedence over other documents. This Software License Agreement, together with the most recent EnSight Purchase Agreement delivered to CEI by Licensee, constitutes the entire agreement of the parties and supersedes any prior understandings relating to the subject matter, and may be amended or supplemented only in a written agreement signed by both an officer of CEI and the Licensee.
17.RESTRICTION ON USE OF TrackdAPI SOFTWARE, developed and owned by VRCO Inc.,
an Delaware corporation, with principal place of business at 192 Ballard Ct. Suite 300, Virginia
Beach, VA 23462; here after referred to as “VRCO”. Licensee is prohibited from the distribution, transfer, modification, or alteration of the TrackdAPI software and associated written materials and/or documentation (“TrackdAPI Software”) and shall abide by the following:
I. PROPRIETARY RIGHTS. Licensee agrees that its use of TrackdAPI Software is a license only and VRCO owns all right, title, and interest in the TrackdAPI Software including any patents, trademarks, trade names, inventions, copyrights, know-how and trade secrets relating to the design, manufacture, operation or service of the TrackdAPI Software. Nothing in this agreement should be construed as transferring any aspects of such rights toLicensee or any third party.
II. WARRANTY DISCLAIMER. THE LICENSED TrackdAPI Software IS PROVIDED “AS IS” WITHOUT
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED TrackdAPI Software IS ON THE LICENSEE.
III. LIMITATION OF LIABILITY. IN NO EVENT SHALL VRCO BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES OR LOST PROFITS ARISING OUT OF THIS AGREEMENT OR USE OF THE TrackdAPI Software, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND EVEN IF VRCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE AGREES VRCO’S LIABILITY ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY SHALL NOT EXCEED ANY AMOUNTS PAID BY LICENSEE FOR THE TrackdAPI Software IDENTIFIED ABOVE.