ENSIGHT® SUPPORT AND MAINTENANCE SERVICE AGREEMENT
UNLESS A SEPARATE AGREEMENT FOR SUPPORT AND MAINTENANCE SERVICES EXISTS BETWEEN THE LICENSEE AND CEI OR AN AUTHORIZED CEI DISTRIBUTOR, THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL GOVERN CEI'S PROVISION OF AND LICENSEE'S USE OF AND PAYMENT FOR SUCH SERVICES.
1. GENERAL. The EnSight Software Licensee and Computational Engineering International, Inc., (“CEI”) agree that the following terms and conditions apply to the provision of Software Support and Maintenance Service.
“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”.
“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, as called out on Schedule A), and any backup or copies thereof. “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.
3. SOFTWARE SUPPORT SERVICE. During the term of this Agreement CEI will provide technical support as described below to the EnSight Software Licensee in its use of the EnSight Software, provided that Licensee has an active License to use the EnSight Software from CEI. CEI will provide telephone consultation on problems encountered in using the EnSight Software during the Prime Time period defined as Monday through Friday, from 8:00 AM to 5:00 PM, USA Eastern Standard Time or Eastern Daylight Time, excluding U. S. Holidays. Licensee is limited to five (5) hours per month of telephone consultation. Alternatively, support requests can be made to CEI via FAX or Electronic mail.
EnSight U.S. Support Telephone Number:(800) 551-4448
Outside U.S. Support Telephone Number:(919) 363-0883
EnSight Support FAX Number: (919) 363-0833
EnSight Support Email address: email@example.com
4. SOFTWARE MAINTENANCE SERVICE. During the term of this Agreement CEI will maintain the EnSight Software provided that Licensee has an active License to use the EnSight Software from CEI. CEI will distribute to Licensee one copy of new minor releases of the major release listed on the media used to deliver the EnSight Software including EnSight Documentation as they become available, subject to the terms and conditions of this Agreement. CEI may modify the terms, conditions, and prices for services applicable to future major releases.
5. EXCLUDED SOFTWARE. NO SUPPORT OR MAINTENANCE SERVICE FOR THE ANCILLARY SOFTWARE IS OFFERED OR PROVIDED BY THIS AGREEMENT EXCEPT AS NOTED IN THE LICENSE_AND_WARRANTY_AND_SUPPORT FILE OF THE src DIRECTORY OF THE SOFTWARE
6. LICENSEE AGREEMENTS FOR SOFTWARE SUPPORT AND SOFTWARE MAINTENANCE. In order to permit CEI to supply the Software Support and Software Maintenance specified above:
(i). If third party graphic libraries accompanied the EnSight Software delivered to Licensee, as noted in the EnSight Purchase Agreement, and such third party issues a new version of such library software which CEI incorporates into the Software, then Licensee must comply with any additional licensing or fee requirements imposed by such third party.
(ii). Licensee agrees to install minor releases, fixes, circumventions, and corrective code to the EnSight Software in a reasonable time after receipt thereof.
(iii). Licensee agrees to be responsible for the installation and administration of the EnSight
(iv). Upon request by CEI, Licensee will provide the name, address, telephone and FAX number, and Email address (if available) of the Licensee’s contact individual for communicating problems and solutions.
7. FEES. If Licensee is Leasing an EnSight Software License, then the cost of the Software Support and Maintenance Service is included in the annual EnSight Software License Lease Fee.
If Licensee has Purchased an EnSight Software license, then there is no separate fee for Software
Support and Maintenance Service for a period of twelve (12) months from the date of the initial
payment of the EnSight Software License Purchase Fee to CEI. Licensee agrees to subsequently pay the annual EnSight Software Support and Maintenance Service Fee(s) for subsequent twelve
(12) month periods at the then current rates when invoiced. If an additional yearly charge for Support and Maintenance Service for third-party graphics libraries of license manager software accompanying the EnSight Software is required, Licensee agrees to pay the additional charges at the same time and at the then current rates. Licensees located in any State other than North
Carolina in the USA are directly responsible for payment of all State and Local taxes applicable at
their location for this Service. Licensees located in any Country other than the U.S. are directly
responsible for payment of all taxes to the government(s) at their location for this Service.
Licensees who have obtained a License through an authorized Distributor of CEI agree to comply with the Distributor’s payment terms and conditions.
8. LIMITATION OF REMEDY AND DISCLAIMER. CEI WILL USE ITS DILIGENT EFFORTS TO PROVIDE THE SUPPORT AND MAINTENANCE SERVICES SPECIFIED HEREIN. CEI MAKES NO OTHER WARRANTY OF ANY KIND OR NATURE WITH REGARD TO THE SERVICES TO BE PERFORMED BY CEI UNDER THE TERMS OF THIS AGREEMENT AND ANY IMPLIED WARRANTIES,
INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND
MERCHANTABILITY, ARE HEREBY DISCLAIMED. THE REMEDIES SET FORTH IN THIS AGREEMENT ARE LICENSEE’S EXCLUSIVE REMEDIES FOR ANY BREACH OF THE TERMS OF THIS AGREEMENT. CEI WILL NOT BE LIABLE IN ANY EVENT FOR LOSS OF OR DAMAGE TO REVENUES, PROFITS, OTHER ECONOMIC LOSS OR GOODWILL OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, INCLUDING ANY LIABILITY FOR NEGLIGENCE WITH RESPECT TO SERVICE PROVIDED UNDER THIS AGREEMENT EVEN IF CEI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY AND ALL CASES, CEI’S MAXIMUM LIABILITY IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE EQUIVALENT OF ONE (1) YEAR OF CHARGES FOR THE RELEVANT SERVICE. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THE LIMIT.
9. INVOICES AND PAYMENT. To those Licensees who have purchased an EnSight Software License, future Invoices for the EnSight Software Support and Maintenance Fee(s) will be issued yearly in the month prior to that in which the initial payment of the EnSight Software License Purchase Fee was made to CEI. Invoices shall be due and payable within thirty (30) days of date of invoice. All payments will be in U. S. Dollars. Payment of invoice is considered made when good funds are received by CEI.
10. OBSOLETE PRODUCTS. CEI will continue to provide Software Support Service for the release prior to the most current release for a period of twelve (12) months after the release date of the most current release. At that time, the previous release is designated as Obsolete and Software Support Service for the Obsolete release shall thereafter be discontinued.
11. TERM. The Term of this Agreement shall be from the date payment from Licensee is first received by CEI for the EnSight Software License Purchase Fee or the EnSight Software License Lease Fee, whichever is applicable, until an event of Termination.
12. TERMINATION. EnSight Software Support and Software Maintenance Service hereunder may be terminated as follows: (A) by Licensee or CEI to be effective during or after the first year of such Service upon giving ninety (90) days written notice; (B) by CEI with respect to Obsolete Products; (C) by CEI immediately and without notice, with respect to the EnSight Software, the license for which has expired or been terminated; (D) by CEI after ten (10) days subsequent to providing notice to Licensee upon either (i) nonpayment by Licensee of any Invoiced amount due under this Agreement or the EnSight End User License Agreement; or (ii) nonperformance by Licensee of any other material term or condition of this Agreement.
13. ASSIGNMENTS. The Licensee may not assign or transfer its rights or obligations under this Agreement, in whole or in part, without the written consent of CEI.
14. APPLICABLE LAW. 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.
15. GENERAL. The terms and conditions stated in this Agreement constitute the complete and exclusive statement of the Agreement between Licensee and CEI and supersede all prior oral and written statements of any kind whatsoever made by either party or their representatives. 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. Any waivers of or amendments to the terms and conditions of this Agreement, to be effective, must be in writing and signed by an officer of CEI and Licensee.
Computational Engineering International, Incorporated
2166 N. Salem Street, Suite 101, Apex, North Carolina