End User License Agreement for Applied Maths Software
IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. DOWNLOADING, INSTALLING OR USING APPLIED MATHS SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
APPLIED MATHS IS WILLING TO LICENSE THE SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT. BY DOWNLOADING OR INSTALLING THE SOFTWARE, YOU ARE BINDING YOURSELF AND THE BUSINESS ENTITY THAT YOU REPRESENT (COLLECTIVELY, 'CUSTOMER') TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN APPLIED MATHS IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU SHOULD NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.
The Software: As used in this Agreement, the term "Software" means, collectively:
- the software product identified above;
- all the contents of the disk(s), CD-ROM(s), electronic mail and its file attachments, or other media through which this Agreement is provided, including the object code form of the software delivered via a CD-ROM, electronic mail, or Web page;
- digital images, stock photographs, clip art, or other artistic works;
- related explanatory written materials and any other possible documentation related thereto ('Documentation'), and
- upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to Customer by Applied Maths under this Agreement.
License: Conditioned upon compliance with the terms and conditions of this Agreement, Applied Maths NV or its subsidiary licensing the Software instead of Applied Maths NV ('Applied Maths'), grants to Customer a nonexclusive and nontransferable license to use for Customer's internal business purposes the Software and the Documentation for which Customer has paid the required license fees. 'Documentation' means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) specifically pertaining to the Software and made available by Applied Maths with the Software in any manner (including on CD-Rom, or on-line). Customer's license to use the Software shall be limited to, and Customer shall not use the Software in excess of, a single hardware or that number of concurrent users, sessions, IP addresses, port(s), seat(s), server(s) or site(s), as set forth in the applicable Purchase Order which has been accepted by Applied Maths and for which Customer has paid to Applied Maths the required license fee. NOTE: For evaluation or beta copies for which Applied Maths does not charge a license fee, the above requirement to pay license fees does not apply.
General Limitations: This is a license, not a transfer of title, to the use of the Software and Documentation, and Applied Maths retains ownership of all copies of the Software and Documentation. Customer acknowledges that the Software and Documentation contain trade secrets of Applied Maths, its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information. Accordingly, except as otherwise expressly provided under this Agreement, Customer shall have no right to-, and Customer specifically agrees not to:
- transfer, assign or sublicense its license rights to any other person or entity, and Customer acknowledges that any attempted transfer, assignment, sublicense or use shall be void;
- reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human readable form, or permit third parties to do the same;
- disclose, provide, or otherwise make available trade secrets contained within the Software and Documentation in any form to any third party without the prior written consent of Applied Maths. Customer shall implement reasonable security measures to protect such trade secrets. To the extent required by law, and at Customer's written request, Applied Maths shall provide Customer with the interface information needed to achieve interoperability between the Software and another independently created program, on payment of Applied Maths' applicable fee, if any. Customer shall observe strict obligations of confidentiality with respect to such information and shall use such information in compliance with any applicable terms and conditions upon which Applied Maths makes such information available.
In case Customer uses an evaluation license or beta copy of the Software, Customer specifically agrees not to:
- use or permit the Software to be used to perform services for third parties, whether on a service bureau or time sharing basis;
- use or permit the Software to be used for commercial or profit-oriented purposes;
- publish any results obtained with the Software, except with the express written authorization of Applied Maths.
Software, Upgrades and Additional Copies: For purposes of this Agreement, 'Software' shall include (and the terms and conditions of this Agreement shall apply to) computer programs, including firmware, as provided to Customer by Applied Maths or an authorized Applied Maths reseller, and any upgrades, updates, bug fixes or modified versions thereto (collectively, 'Upgrades') or backup copies of the Software licensed or provided to Customer by Applied Maths or an authorized Applied Maths reseller. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (1) CUSTOMER HAS NO LICENSE OR RIGHT TO USE ANY ADDITIONAL COPIES OR UPGRADES UNLESS CUSTOMER, AT THE TIME OF ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAS PAID THE APPLICABLE FEE FOR THE UPGRADE OR ADDITIONAL COPIES; AND (2) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY.
Proprietary Notices: Customer agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in this Agreement, Customer shall not make any copies or duplicates of any Software without the prior written permission of Applied Maths.
Term and Termination: This Agreement and the license granted herein shall remain effective until terminated. Customer may terminate this Agreement and the license at any time by destroying all copies of Software, any Documentation, and, if provided, by sending back the hardware protection key (dongle). Customer's rights under this Agreement will terminate immediately without notice from Applied Maths if Customer fails to comply with any provision of this Agreement. Upon termination, Customer shall destroy all copies of Software and Documentation in its possession or control. All confidentiality obligations of Customer and all limitations of liability and disclaimers and restrictions of warranty shall survive termination of this Agreement. In addition, the provisions of the section titled 'General Terms Applicable to the Limited Warranty Statement and End User License' shall survive termination of this Agreement.
Export: Software and Documentation, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that he has the responsibility to obtain licenses to export, re-export, or import Software and Documentation.
Privacy: Customer acknowledges that anonymous usage data may be collected when consulting on-line Documentation. Applied Maths collects usage data with the sole intention of improving Documentation and will not share this information with third parties.
Clinical Use Disclaimer: The Software licensed is for research purposes only. Applied Maths makes no representation that the Software is a clinically approved medical device, and users understand and accept that any result or its display presented in whatever form obtained using the Software must not be used for any purpose other than research.
Limited Warranty: Subject to the limitations and conditions set forth herein, Applied Maths warrants that commencing from the date of shipment to Customer (but in case of resale by an authorized Applied Maths reseller, commencing not more than thirty (30) days after original shipment by Applied Maths), and continuing for a period of 1 year: (a) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (b) the Software substantially conforms to the Documentation. The date of shipment of the Software by Applied Maths is set forth on the packaging material in which the Software is shipped. Except for the foregoing, the Software is provided AS IS. This limited warranty extends only to the Customer who is the original licensee. Customer's sole and exclusive remedy and the entire liability of Applied Maths and its suppliers and licensors under this limited warranty will be
- replacement of defective media and/or
- at Applied Maths's option, repair, replacement, or refund of the purchase price of the Software, in both cases subject to the condition that any error or defect constituting a breach of this limited warranty is reported to Applied Maths or the party supplying the Software to Customer, if different than Applied Maths, within the warranty period. Applied Maths or the party supplying the Software to Customer may, at its option, require return of the Software as a condition to the remedy. Because of the unique nature of the algorithms and methodologies provided in the Software, Customer acknowledges that Applied Maths has incorporated protection measures against any form of non -licensed use of the Software or parts thereof. Customer agrees that the Software is provided with a hardware- or software- (for network licenses) protection key (dongle) which is required to run the Software and any of its applications.
IT IS THE FULL RESPONSIBILITY OF CUSTOMER TO PROTECT THE DONGLE ADEQUATELY AND SECURE IT AGAINST LOSS AND DISAPPEARANCE.
CUSTOMER WILL NOT BE ENTITLED TO OBTAIN A REPLACEMENT DONGLE UNLESS THE ORIGINAL DEFECTIVE DONGLE IS RETURNED TO APPLIED MATHS BY A TRACKABLE COURIER SERVICE.
Insurance: Applied Maths offers hardware protection key insurance to minimize the risk of lost, stolen and/or defective dongles beyond the standard warranty terms.
NOTE: For evaluation or beta copies for which Applied Maths does not charge a license fee, the Software may not be protected by means of a dongle but using a license negotiated with an Applied Maths Internet server.
In no event does Applied Maths warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions.
Restrictions: This warranty does not apply if the Software (a) has been altered, except by Applied Maths or its authorized representative, (b) has not been installed, operated, or maintained in accordance with instructions supplied by Applied Maths, or (c) is licensed, for beta, evaluation, testing or demonstration purposes for which Applied Maths does not charge a purchase price or license fee.
DISCLAIMER OF WARRANTY: EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY APPLIED MATHS, ITS SUPPLIERS AND LICENSORS. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
General Terms Applicable to the Limited Warranty Statement and End User License.
Disclaimer of Liabilities: REGARDLESS WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL APPLIED MATHS OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE OR OTHERWISE AND EVEN IF APPLIED MATHS OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Applied Maths's or its suppliers' or licensors' liability to Customer, whether in contract, tort (including negligence), breach of warranty, or otherwise, exceed the price paid by Customer for the Software that gave rise to the claim. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Customer agrees that the limitations of liability and disclaimers set forth herein will apply regardless of whether Customer has accepted the Software or any other product or service delivered by Applied Maths. Customer acknowledges and agrees that Applied Maths has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties. The Warranty and the End User License shall be governed by and construed in accordance with the Belgian law or the laws of the State of Texas, U.S., without reference to or application of choice of law rules or principles. If any portion hereof is found to be void or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect. Except as expressly provided herein, this Agreement constitutes the entire agreement between the parties with respect to the license of the Software and Documentation and supersedes any conflicting or additional terms contained in any purchase order or elsewhere, all of which terms are excluded. This Agreement has been written in the English language, and the parties agree that the English version will govern.