SOFTWARE LICENSE AGREEMENT
By acquiring, installing, copying or otherwise using this software, you, licensee, or customer (“Customer”) agrees to enter into this Software License Agreement ("Agreement") with Engineering Software Research and Development, Inc. ("ESRD"), for StressCheck®, which was developed using the ParaHOOPS 3D Application Framework including the HOOPS 3D Graphics System and the Parasolid Kernel Modeler and other computer software products, and may include associated models, media, printed materials and/or "online" or electronic documentation (hereinafter the software products and documentation referred to as the "Software").
The terms listed herein represent the entire understanding relating to the use of ESRD’s Software and prevails over any prior or contemporaneous, conflicting or additional, communication. ESRD reserves the right to revise these terms at any time without notice by updating this license agreement or posting on their web site.
1. GRANT OF LICENSE.
This Agreement grants Customer the following rights:
Territory. Territory means a region wherein access to and use of the software will be controlled by a Single Customer license server at the installation site; available on customer’s local area network shared by a grouping of Customer’s facilities within ten (10) miles of the installation site. Customer may not access the Software outside of the Territory without ESRD’s prior written consent.
License to Use. ESRD grants to Customer a non-exclusive and non-transferable license for personal, corporate or academic use only of the accompanying software and documentation and any error corrections provided by ESRD in the Territory for the purpose of processing Customer’s own internal business. Customer has no right to distribute the Software without a separate license agreement from ESRD.
Special Terms Applicable to Academic Licenses. If ESRD identifies the Software License as an Academic License, Customer must be an academic institution or other non-profit qualifying institution and may use up to the maximum number of copies of the Software that have been validly obtained pursuant to ESRD’s Academic Program, provided that they are used for Educational Purposes and for no other purpose. Educational Purposes means purposes directly related to teaching, training, degree-granting programs, and research and development that are part of the instructional function performed by Customer. Without limiting the foregoing, Academic Licenses may not be used for commercial, professional or productive purposes, for commercial training or any other for-profit purposes. Use of the Software is limited to Customer’s faculty, staff members, students and graduate assistants. Technical Support will be provided only to one designated representative of Customer, referred to as the Technical Contact.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
Customizing and Extending. Customer may not customize or extend the Software without first entering into a separate license agreement with ESRD.
Limitations on Reverse Engineering, Decompilation, and Disassembly. Customer may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that applicable law notwithstanding this limitation expressly permits such activity.
Use restrictions. Software is confidential and copyrighted. Except as set forth herein, Customer agrees not to
(a) remove any product identification, copyright notices, or other notices or proprietary restrictions from Software;
(b) with the exception of the purpose of consulting, use the Software for profit including but not limited to commercial timesharing, rental, or service bureau use;
(c) transfer, sell, assign or otherwise convey Software to another party without ESRD’s prior written consent;
(d) cause or permit reverse engineering, disassembly, or decompilation of Software; or
(e) disclose results of any benchmark tests of any Software to any third party without ESRD’s prior written approval.
Separation of Components. The Software is licensed as a single product. Should Customer choose to use another Software product of ESRD, Customer must agree to the License Agreement accompanying that Software product.
Rental. Customer may not rent, lease, or lend the Software.
Termination. Without prejudice to any other rights, ESRD may terminate this Agreement if Customer fails to comply with the terms and conditions of this Agreement. In such event, Customer must destroy all copies of the Software and all of its component parts. Unauthorized copying of the Software, or the failure to comply with the terms of this Agreement, will result in automatic termination of this Agreement and will make available to ESRD and/or its licensors other legal remedies.
The Software is licensed, not sold, to Customer. All right, title and interest in and to the Software, in whole and in part and all copies thereof, and all modifications, enhancements, derivatives and other alterations of the Software regardless of who made any modifications, if any, are, and will remain, the sole and exclusive property of ESRD and/or its licensors. ESRD reserves the right to include means within the Software to audit and/or limit the number of accounts purchased by Customer; such right may be exercised by ESRD without further notice. A license pertains to a specific software release, and is attached to a specific computer. Software upgrades or transfer of a license to another computer is restricted to customers who have purchased a software maintenance contract.
3. LINKS TO THIRD PARTY SITES.
ESRD’s website may be linked to other websites which are not under the control of ESRD. ESRD is not responsible for the content of those sites. ESRD provides these links to Customer only as a convenience, and the inclusion of any link to such sites does not imply endorsement by ESRD of those sites. ESRD reserves the right to terminate any link or linking program at any time.
4. NO WARRANTY.
ANY USE OF THE SOFTWARE IS AT CUSTOMER’S OWN RISK TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ESRD AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE SOFTWARE IS DISTRIBUTED "AS IS". CUSTOMER SHALL RECEIVE NO UPGRADES TO THE SOFTWARE UNLESS EXPLICITLY GRANTED BY ESRD.
5. LIMITATION OF LIABILITY.
ESRD SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED AS A RESULT OF USING, MODIFYING, CONTRIBUTING, COPYING, DISTRIBUTING, OR DOWNLOADING THE MATERIALS ON THEIR WEBSITE. IN NO EVENT SHALL ESRD BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGE (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE) HOWEVER IT ARISES, WHETHER FOR BREACH OR IN TORT, EVEN IF ESRD HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. CUSTOMER HAS SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH THE WEBSITE OR SOFTWARE AND WILL NOT MAKE A CLAIM AGAINST ESRD FOR LOST DATA, RERUN TIME, INACCURATE OUTPUT, WORK DELAYS OR LOST PROFITS RESULTING FROM THE USE OF THE MATERIALS. CUSTOMER AGREES TO HOLD ESRD HARMLESS FROM, AND CUSTOMER COVENANTS NOT TO SUE ESRD FOR, ANY CLAIMS BASED ON USING THE WEBSITE OR SOFTWARE.
6. EXPORT LAW ASSURANCES.
Customer agrees to comply with all United States laws and regulations controlling the export of certain commodities and technical data, including without limitation all pertinent Export Administration Regulations of the United States Department of Commerce.
Customer agrees and certifies that neither the Software, nor any other technical data received from ESRD, nor the direct product thereof, will be exported outside the United States except as authorized and as permitted by the laws and regulations of the United States. If the Software has been rightfully obtained by Customer outside of the United States, Customer agrees that it will not re-export the Software nor any other technical data received from ESRD, nor the direct product thereof.
THESE COMMODITIES, TECHNOLOGY OR SOFTWARE ARE EXPORTED FROM THE UNITED STATES IN ACCORDANCE WITH THE EXPORT ADMINISTRATION REGULATIONS. DIVERSION CONTRARY TO U.S. LAW IS PROHIBITED.
7. CONTROLLING LAW AND SEVERABILITY.
This License shall be governed by, construed, interpreted, and enforced in accordance with the laws of the United States and the State of Missouri. If for any reason a court of competent jurisdiction finds any provision of this License, or portion thereof, to be unenforceable, that provision of the License shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this License shall continue in full force and effect.
All title and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the Software), the accompanying printed materials, and any copies of the Software are owned by ESRD or its suppliers. Copyright laws and international treaty provisions protect the Software. Therefore, Customer must treat the Software like any other copyrighted material. Customer may copy the printed materials accompanying the Software only to the extent necessary for instruction of Customer’s employees assigned to operate the Software. THE SOFTWARE IS LICENSED, NOT SOLD.
In the event that Customer publishes any external report, scientific, or technical paper in which the Software was used to support the external report, scientific, or technical paper, StressCheck must be named and the paper shall carry the following notation: “StressCheck is a registered trademark of Engineering Software Research and Development, Inc., 111 West Port Plaza, Suite 825, St. Louis, MO 63146, USA.” Customer shall provide ESRD with a copy of any such papers made available to the public.
10. COMPLETE AGREEMENT.
This License constitutes the entire agreement between the parties with respect to the use of the Software, related documentation and fonts, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. The use of the Software shall be governed by the terms of this Agreement. No amendment to or modification of this License will be binding unless in writing and signed by a duly authorized representative of ESRD.
If this product was acquired outside the United States, then local law may apply. Should Customer have any questions concerning this Agreement, or if Customer desires to contact ESRD, Inc. for any reason, call or write: ESRD, Inc., 111 Westport Plaza Dr., Suite 825, St. Louis, MO 63146 USA PH: +1 314.744.5021 http://www.esrd.com