CLICKWRAP EVALUATION SOFTWARE LICENSE AGREEMENT
Version January 25, 2013
***IF LICENSEE HAS PREVIOUSLY AGREED IN WRITING TO A SOFTWARE LICENSE AGREEMENT WITH LICENSOR THAT SPECIFICALLY GOVERNS USE OF THE PROGRAM(S), SUCH SOFTWARE LICENSE AGREEMENT SUPERSEDES AND REPLACES THIS CLICKWRAP EVALUATION SOFTWARE LICENSE AGREEMENT, AND THIS CLICKWRAP EVALUATION SOFTWARE LICENSE AGREEMENT IS VOID.***
If you have a previous written software license agreement as described in the preceding paragraph, you may proceed with installation by clicking the “I AGREE” button.
READ THIS CLICKWRAP EVALUATION SOFTWARE LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE PROCEEDING. THIS IS A LEGALLY BINDING CONTRACT BETWEEN LICENSEE AND LICENSOR FOR LICENSEE TO USE THE PROGRAM(S), AND IT INCLUDES DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY.
BY CLICKING THE "I AGREE" BUTTON LICENSEE’S AUTHORIZED REPRESENTATIVE LEGALLY BINDS LICENSEE TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.
A. “Licensor” means Dassault Systemes Simulia Corp. ("DS").
B. “Affiliate” of a company means any person or other entity directly or indirectly controlling, controlled by, or under common control of such company.
C. “Licensee” means the person or entity entering into this Agreement through its authorized representative by clicking the “I AGREE” button and who is authorized by Licensor to use the Program(s), including Licensee’s Affiliates.
This Evaluation Software License Agreement ("Agreement") is made by and between Licensor and Licensee.
Licensor hereby grants to Licensee a temporary, free of charge, nontransferable and non-exclusive license to use the data processing program identified in Licensor applicable Evaluation License Order, and associated documentation (the "Licensed Program(s)"} solely for the purpose of evaluating the Licensed Program(s), specifically excluding any production or commercial purpose. In addition, Licensee acknowledges and agrees that Licensor shall have no obligation to provide any services, support or maintenance for the Licensed Program(s) under this Agreement. The Licensed Program(s) may (i) only be used in the country for which the license has been ordered, and (ii) only be executed or accessed by hardware belonging to Licensee or under its sole control or supervision, and located on Licensee's premises ("Machines"), and (iii) if applicable, for the maximum number of Users, Named Users or maximum use authorized through tokens, as described in the Evaluation License Order. Users are Licensee's employees, consultants or subcontractors who access the Licensed Program(s) on Machines and work for the exclusive internal needs of Licensee (Users). Named Users are Users who operate the Licensed Program(s), with a unique username and password to use the Licensed Program(s), running on a single Machine at any given time (Named Users). Named Users shall not share or use the same username and password. Licensee may replace Named Users as necessary to reflect personnel changes, provided that the number of individuals authorized to use the Licensed Program(s) does not exceed the maximum number of licenses of the Licensed Program(s) described in the Evaluation License Order. No rights including any right to use, reproduce, display, other than those specifically described in this Agreement are granted to Licensee. Licensee shall not reverse engineer, decompile, disassemble, or otherwise translate all or part of the Licensed Program(s).
2. TERM & TERMINATION
This Agreement shall come into full force and effect on the date on which the Licensed Program(s), and passwords, if applicable, have been made available to Licensee, and for the term specified in the Evaluation Order Form unless terminated earlier by either party hereto, for any reason or no reason, upon written notice to the other party. The sections entitled "Protection and Non- Disclosure", "WARRANTY AND DISCLAIMER OF WARRANTY, RISK OF USE, LIMITATION OF LIABILITY AND INDEMNITY" and "General" shall survive expiration or termination of this Agreement.
3. PROTECTION AND NON-DISCLOSURE
The Licensed Program(s), including any copies, compilations, made by or for Licensee, in whole or in part, are the sole property of Licensor or other owner. All intellectual property rights in the Licensed Program(s) belong exclusively to Licensor or its licensors. Licensor and/or its licensors shall retain all title, copyright and other intellectual property rights in the Licensed Program(s) and all modifications, enhancements or other works derivative of the Licensed Program(s). Licensee shall preserve and reproduce any copyright, patent and trademark notices which may appear in the Licensed Program(s) on all copies thereof, in whole or part. Licensee shall not provide, disclose or transmit any Licensed Program, nor any results of tests or benchmarks related to any Licensed Program, or copy thereof, in whole or in part, without the prior written consent of Licensor, except to Users within the limits of the rights granted under this Agreement. Licensee shall take appropriate action with Users, to ensure that Licensee complies with its obligations under this Agreement. Licensee recognizes that the methodologies, techniques, expressions, ideas, and concepts contained in or expressed within the Licensed Program(s) are proprietary information or trade secrets of Licensor or its licensors, and are protected by copyright and other intellectual property laws. Licensee shall treat them, the Licensed Program(s), as well as any information or data in any form relating to Licensee's evaluation pursuant to this Agreement, as confidential information and never disclose them.
4. LICENSEE'S RESPONSIBILITIES
Licensee is solely responsible for supervising, managing and controlling the use of the Licensed Program(s) in compliance with this Agreement, and shall take all appropriate measures to ensure such compliance, including without limitation compliance with its authorized use, and confidentiality obligations. Export to Licensee of Licensed Program(s) is subject to all applicable countries' export and re-export laws and regulations. Licensor shall have no liability whatsoever towards Licensee if such authorizations, licenses or approvals are not obtained. Licensee shall not export or re-export, either directly or indirectly, Licensed Program(s) when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval. Licensee hereby certifies to Licensor that the Licensed Programs ordered hereunder will not be used in any nuclear, chemical, biological, weapons or missile delivery systems and will not be diverted to any country, company or individual that is prohibited by the applicable export laws of any country.
5. WARRANTY AND DISCLAIMER OF WARRANTY, RISK OF USE, LIMITATION OF LIABILITY AND INDEMNITY
THE LICENSED PROGRAM(S) ARE MADE AVAILABLE ON AN "AS IS" BASIS, AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITIEN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND/OR FITNESS FOR ANY
PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES, CONDITIONS, UNDERTAKINGS, AND TERMS ARE HEREBY EXCLUDED TO THE EXTENT PERMITIED BY LAW. IN NO EVENT SHALL LICENSOR BE LIABLE FOR DIRECT OR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, PROFIT, REVENUE, OR GOODWILL, WHETHER BASED IN CONTRACT, NEGLIGENCE, OR OTHERWISE, ARISING OUT OF, RESULTING FROM OR IN ANY WAY RELATING TO LICENSEE'S USE OF THE LICENSED PROGRAM(S), INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE DAMAGES ARISING OUT OF THIS AGREEMENT OR THE SUPPLYING OF THE LICENSED PROGRAM(S), EVEN IF LICENSOR IS AWARE OF OR IS NOTIFIED OF THE POSSIBILITY THEREOF. THIS SECTION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT. LICENSEE'S USE OF LICENSED PROGRAM(S) SHALL BE AT LICENSEE'S SOLE RISK. LICENSEE SHALL INDEMNIFY AND HOLD LICENSOR AND ITS LICENSORS HARMLESS FROM ANY AND ALL LIABILITY OR EXPENSE, INCLUDING REASONABLE ATIORNEYS' FEES, ARISING OUT OF THIS AGREEMENT OR LICENSEE'S USE OF THE LICENSED PROGRAM(S) UNDER THIS AGREEMENT.
6. GOVERNING LAW AND JURISDICTION
Except as expressly permitted herein, this Agreement may be modified only by written amendment signed by the parties and no other act, document, usage or custom shall be deemed to amend or mod~y this Agreement, including but not limited to Licensee's terms and conditions. The Agreement shall be governed and construed in accordance with the laws of The Commonwealth of Massachusetts. All actions and proceedings arising out of or relating to this Agreement shall be exclusively heard and determined by the Courts of The Commonwealth of Massachusetts, United States of America. Licensee acknowledges and agrees that the last two sentences above shall not prevent, restrict or otherwise limit in any manner, Licensor rights to seek equitable remedies, including injunctive relief before any competent court in any jurisdiction. The parties irrevocably waive all rights to trial by jury for any litigation between them.