Ensight Licenseagreement User Manual License Agreement

2017-12-05

User Manual: Ensight Licenseagreement LicenseAgreement EnSight10_Docs www3.ensight.com 3:

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CLICKWRAP SOFTWARE LICENSE AGREEMENT
Version May 2, 2016
***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 SOFTWARE LICENSE AGREEMENT, AND THIS
CLICKWRAP 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 (or the button below otherwise indicating
your agreement to the terms).
If you require a printed version of this Clickwrap Software License Agreement prior to accepting these
terms and conditions, please print this Clickwrap Software License Agreement and click "I DO NOT
AGREE" (or the button below otherwise indicating that you do not accept the terms) and go to
LICENSE.TXT in the installation to retrieve and print this Clickwrap Software License Agreement.
READ THIS CLICKWRAP 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.
IF LICENSEE DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CLICK THE "I DO NOT AGREE"
BUTTON INDICATING NON-ACCEPTANCE, PROMPTLY REMOVE THE PROGRAM(S) FROM LICENSEE'S
COMPUTER(S) AND RETURN THE SOFTWARE AND ALL RELATED DISKS AND DOCUMENTATION WITHIN
THIRTY (30) DAYS TO LICENSOR, OR ITS AUTHORIZED CHANNEL PARTNER FROM WHOM LICENSEE
OBTAINED THE PROGRAM(S), AND LICENSEE WILL RECEIVE A FULL REFUND.
I. DEFINITIONS
A. "Affiliate" of a company means any person or other entity directly or indirectly controlling,
controlled by, or under common control of such company.
B. "ASC" means the Support Coordinator and is that person who, by virtue of experience and training,
will be appointed by Licensee as Licensee's representative and liaison with Licensor or the Channel
Partner.
C. "Channel Partner" means Licensor's Affiliates or persons or other business entities that are
authorized by Licensor to distribute, support, or both distribute and support Program(s). Any Customer
Support obligations of Licensor under this Agreement may be delegated to a Channel Partner at
Licensor's discretion.
D. "Class3 Error" means an error which allows the program execution to complete and yield results
that may be wrong but not easily identifiable as incorrect.
E. "Contract User(s)" means an individual or entity, not a regular employee of Licensee, who is
engaged to perform Licensee's internal data processing services.
F. "Designated Network" means the local area network identified per the License Key, or, if the
Program(s) are not controlled by a License Key, the local area network/computer on which Licensee
intends to install the Program(s) as initially identified by Licensee to Licensor or Channel Partner.
G. "Designated Site" means Licensee's physical location where use of the Program(s) is authorized by
Licensor.
H. "Effective Date of Program(s)" means the date specified in the License Key as the date access to the
Program(s) begins. If there is no License Key, then "Effective Date of Program(s)" means the date on
which the Program(s) were first installed by Licensee.
I. "LAN" means the Designated Network; provided, however, that in order to qualify as a LAN, such
Designated Network must be a local area network which is accessed and used only at the Designated
Site or from Licensee's facilities within a 25-mile (40-km) radius of the Designated Site and within the
same country as the Designated Site.
J. "Lease License" means a license which has a License Term commencing on the Effective Date of
Program(s) and limited in duration for a specified period of time as set forth in a License Key or, for
Program(s) not containing a License Key, for the lesser of one (1) year or the Program(s)' built-in
expiration date, and which may renew pursuant to Section 3 below.
K. "License Key" means a software licensing management and security tool or other device that
Licensor may use to allow Licensee access to the Program(s) and which may have an expiration date.
L. "License Term" means the period of time during which Licensee is authorized to use Program(s) in
accordance with the applicable license grant.
M. "License Type" means the type of the license granted for use of the Program(s). Unless otherwise
indicated in writing by Licensor, the License Type will be deemed to be a LAN.
N. "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.
O. "Licensor" means ANSYS, Inc.
P. "Paid-Up License" means a license for a Program(s) which has a License Term commencing on the
Effective Date of Program(s) and continuing in perpetuity, unless earlier terminated in accordance with
the terms of this Agreement. Only Program(s) containing a License Key with no expiration date will have
a "Paid-Up License" License Term.
Q. "Program(s)" means the software programs being installed pursuant to this Agreement and as
identified in the License Key, if applicable, including any accompanying documentation and any
Technical Enhancements to such software programs.
R. "TECS" or "Technical Enhancements and Customer Support" means the services described in
Section 9(a) below, which will be provided to Licensee at Licensor's sole option and upon payment of
any applicable fees.
2. GRANT
(a) Subject to Licensee's continued compliance with the terms and conditions of this Agreement, upon
Licensee's clicking the "I AGREE" button, Licensor grants to Licensee a nonassignable, nonexclusive,
nontransferable right and license, without the right to grant sublicenses, to use each Program(s)
authorized hereunder for the number of simultaneous tasks identified in the License Key or otherwise
authorized by Licensor, for the License Term and within the scope of the License Type. Except as set
forth in Section 9(c), all changes of the Designated Network are permitted only with the prior written
consent of Licensor and payment of any administration fees. Nothing contained herein will be deemed
to convey to Licensee any title, ownership, copyright or any other intellectual property rights in or
related to Program(s), and Licensor reserves all rights in and to the Program(s) which are not expressly
granted in writing by Licensor to Licensee. Licensee will not permit the use of the Program(s) by persons
other than its employees and its Contract Users. Licensee is responsible for ensuring that the Contract
Users (i) use the Program(s) only to perform internal data processing services for Licensee and (ii) agree
to and comply with the terms of this Agreement. Licensee is responsible for the use of the Program(s)
by all Contract Users. Licensee will use the Program(s) only for Licensee's own internal data processing
purposes and will not make all or any part of any Program(s) available to any third person other than
Contract Users, including without limitation providing data processing services, serving as an application
service provider, or providing batch processing services. Licensee's use of each Program(s) will be
restricted to the Designated Site. Licensee's license for the use of the Program(s) is further limited as
follows.
(i) Evaluation License: If, in Licensor's sole discretion given the totality of the circumstances
surrounding Licensee's provision of the Program(s), Licensee has obtained the Program(s) for evaluation
purposes ("Evaluation License"), then Licensee will only use the Program(s) for the purpose of internal
demonstration and evaluation, and not for production or commercial purposes, in order to determine
whether Licensee desires to purchase a license for the Program(s).
(ii) Educational License: If, in Licensor's sole discretion given the totality of the circumstances
surrounding Licensee's provision of the Program(s), Licensee is licensing the Program(s) for educational
purposes ("Educational License"), then Licensee will not use or permit the use of the Program(s) for
commercial purposes, including but not limited to consulting, and will only use the Programs for:
student instruction; student projects; student demonstrations; and research projects that will be non-
proprietary. Where Licensee is using the Program(s) for research projects, Licensee will submit a Case
Study at least one month prior to the end of the License Term. The Case Study will be in English, contain
a title and an abstract, and include: (1) the purpose of the study; (2) the approach used to conduct the
study; (3) the results obtained; (4) the conclusion as to the results obtained versus the objective of the
study; (5) how the Program(s) contributed to the study; (6) three color graphics of the model and
meshes; and (7) the Program(s) input files or session log file. Large files should be submitted on a CD
ROM.
(iii) Warranties for Evaluation and Educational Licenses: For Evaluation and Educational Licenses, the
Program(s) IS PROVIDED TO LICENSEE "AS IS" WITHOUT WARRANTY OF ANY KIND. LICENSOR AND THE
CHANNEL PARTNER AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES AND SUPPLIERS DISCLAIM ALL
WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH
RESPECT TO THE PROGRAM(S) OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO ANY AND ALL
WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS OR
SUITABILITY FOR ANY PURPOSE (whether or not Licensor or the Channel Partner and their respective
Affiliates and suppliers know, has reason to know, has been advised, or is otherwise in fact aware of any
such purpose), whether alleged to arise by law, by reason of custom or usage in the trade, or by course
of dealing. Section 6 of this Agreement does not apply to Evaluation and Educational Licenses.
(b) CERTAIN PROGRAMS CONTAIN LICENSE KEYS OR AN EXPIRATION DATE BUILT INTO THE
PROGRAM(S) WHICH MAY LIMIT THEIR USE AND REQUIRE LICENSEE TO OBTAIN FROM LICENSOR
EXTENSION KEYS OR ADDITIONAL LICENSE KEYS FROM TIME TO TIME OR TO REINSTALL THE
PROGRAM(S).
(c) Licensor will provide Licensee access to the Program(s) via a License Key or via some other method
provided by the Licensor. Licensee will be responsible for installation of the Program(s). Licensee may
make copies of the Program(s) only as are necessary for Licensee's back-up or archival purposes of such
Program(s). The license granted to Licensee by reason of this Section 2 applies to all copies of the
Program(s). In no event will Licensee remove or modify any copyright notices or other proprietary
markings contained within the Program(s) and will ensure that such notices are reproduced within all
copies of the Program(s).
(d) Licensee will not modify the License Key provided with the Program(s) in any way. Except as
expressly permitted by this Section 2(d) or as required to be permitted by local law, Licensee will not
(and will not attempt to nor allow any third party to or attempt to) adapt, alter, amend, modify, reverse
engineer, decompile, disassemble or decode the whole or any part of the Program(s) or translate the
whole or any part of the Program(s) into another language. To the extent that local law expressly grants
or requires Licensor to grant Licensee the right to decompile the Program(s) in order to obtain the
information necessary to render the Program(s) interoperable with other computer programs used or to
be created by Licensee, Licensor will make such information available to Licensee and Licensee will not
decompile (or attempt to do so) the Program(s) without first requesting such information from Licensor.
Licensor will have the right to impose reasonable conditions (such as the imposition of a reasonable fee)
for making the information available. In order to ensure that Licensee receives the appropriate
information, Licensee must first give Licensor sufficient details of Licensee's objectives and other
software concerned. All requests for the appropriate information will be given by notice to be delivered
in accordance with the terms of this Agreement. Licensee may not distribute the Program(s) (the whole
or any part) to any third party (excluding Contract Users) or link or compile the Program(s) to or with
any third party software without Licensor's prior written permission, which consent Licensor may grant
or withhold in its sole discretion.
(e) Licensee acknowledges and agrees that the Program(s), excluding the SCADE family of products, are
subject to U.S. laws governing the export and/or re-export of Program(s) including, but not limited to,
the Export Administration Regulations, regulations promulgating financial transaction restrictions
administered by the Office of Foreign Asset Controls of the U.S. Department of the Treasury, the
International Emergency Economic Powers Act, the United States Export Administration Act, the United
States Trading with the Enemy Act, and all regulations, orders and licenses issued thereunder and that
the SCADE family of products are subject to French and European law governing the export and/or re-
export of such Program(s) (collectively the "Export Laws"). Licensee warrants that it is and will remain in
compliance with all such Export Laws with respect to the Program(s), and acknowledges that Export
Laws may change over time. Licensee additionally warrants that it has not been, and is not currently,
debarred, suspended, prohibited or impaired from exporting, re-exporting, receiving, purchasing,
procuring, or otherwise obtaining any product, commodity, or technical data regulated by any agency of
the government of the United States. In particular, Licensee hereby gives assurance that unless notice is
given to Licensor, and prior authorization is obtained as required by the Export Laws, Licensee will not
knowingly re-export, directly or indirectly, any Programs or any technical data transferred by Licensor to
Licensee to any destination or person or entity in violation of the Export Laws or this Agreement.
(f) If applicable, for Licensees that are U.S. Government entities, except as specifically granted by this
Agreement, use, duplication, or disclosure by the United States Government is subject to restrictions
stated in this Agreement and FAR 12.212 (for non-Department of Defense licenses).
(g) With respect to the SCADE family of products Licensor may provide source code for certain
components of such Program(s), which shall be treated as Program Confidential Information under
Section 5. In addition to the terms set forth in this Agreement, such source code shall also be subject to
the additional provisions respecting such source code specifically as set forth at http://www.esterel-
technologies.com/licensing.
3. TERM AND TERMINATION
(a) Lease Licenses are non-cancelable by Licensee, will commence on the Effective Date of the
Program(s), and, at the end of the License Term, will automatically renew at the then-current renewal
fees for a term equal to the duration of the immediately preceding License Term (provided that the
License Term may be extended or shortened by mutual agreement in any given renewal term in order to
make the term coterminous with the term of other Lease Licenses or the TECS for Paid-Up Licenses
licensed by Licensee) unless Licensee, Channel Partner, or Licensor gives prior written notice of their
intent not to renew the applicable Lease License prior to the end of the then-current License Term.
Notice to not renew shall be deemed given by Licensee if Licensee does not issue a purchase order to
Licensor or the Channel Partner for the Lease Licenses prior to the expiration of the then-current License
Term. Notice to not renew shall be deemed given by Licensor or the Channel Partner, except as
otherwise expressly indicated, in the event that Licensor or Channel Partner does not provide a renewal
quotation or follow-on proposal for the Lease Licenses prior to the expiration of the then-current
License Term. Licensor may terminate the Lease Licenses in the event that Licensee fails to pay the
then-current renewal fees to the Channel Partner or Licensor, as applicable, by the due date for such
payment. In the event a Lease License is terminated prior to the end of the term, no refund will be due
to Licensee for any portion of the prepaid Lease License fee.
(b) The license for a Paid-up License will commence on the Effective Date of Program(s) and will be
perpetual unless terminated as provided in Sections 3(c) below.
(c) Licensor may immediately terminate this Agreement and any Program(s) licenses covered by this
Agreement upon any of the following: (i) Licensee materially breaches any provision of this Agreement
and fails to cure such breach within thirty (30) days of notice of such breach from Licensor or Channel
Partner, provided that Licensor may terminate this Agreement and any Program(s) licenses for any
material breach by Licensee that is not capable of being cured; (ii) Licensee ceases to do business for any
reason; (iii) Licensee has a receiver or administrator appointed over all or part of its assets; (iv) Licensee
becomes subject to any bankruptcy, insolvency, reorganization, liquidation or other similar proceedings,
which proceedings are not dismissed within fifteen (15) days thereafter; (v) the transfer of a majority of
Licensee's assets or outstanding voting securities (including, without limitation, by way of merger of
Licensee with or into any other person or entity), or the sale of Licensee's business, or any other
transaction or series of related transactions in which the security holders of Licensee immediately prior
to such transaction(s) do not hold at least a majority of the outstanding voting securities of Licensee
immediately after the transaction(s); or (vi) any other attempted assignment of this Agreement by
Licensee without prior written approval by Licensor.
(d) If the Agreement is terminated, no refund will be due to Licensee and Licensee will immediately
uninstall the Program(s) from the computer(s) on which it is installed and will certify to Licensor in
writing that the Program(s) is uninstalled and all copies thereof have either been destroyed or returned
to Licensor or the Channel Partner. Licensee will immediately return to Licensor or the Channel Partner
any Program Confidential Information and Licensor's Other Confidential Information, which terms are
defined in Section 5.
4. PAYMENT
For sales of licenses of the Program(s) and/or TECS to Licensee directly by Licensor or its Affiliates or
for sales of licenses of the Program(s) and/or TECS by a non-Affiliated Channel Partner in which Licensor
has requested payment be made directly to Licensor or its Affiliates ("Directed Payments"), Licensee
agrees to pay the applicable fees within thirty (30) days of receipt of an invoice for such fees from
Licensor or its Affiliates. In the event that Licensee does not pay within such time period, Licensor or its
Affiliates (as applicable) additionally may charge Licensee interest in an amount equal to 1.5% per
month of the unpaid balance. For sales of licenses of the Program(s) and/or TECS to Licensee by non-
Affiliated Channel Partners other than Licensor's Affiliates, payments other than Directed Payments
made by Licensee under this Agreement will be paid to the Channel Partner within the time agreed
between the Channel Partner and Licensee. If such period is not specified, then the payment terms shall
be consistent with the payment terms set forth above for payments to Licensor and its Affiliates. Fees
are exclusive of all value added taxes, sales taxes, use taxes, and the like. Licensee will pay all taxes
associated with the Program(s), exclusive of any tax based on the income of Licensor or the Channel
Partner. If claiming a tax exemption, Licensee must provide a valid tax exemption certificate.
5. CONFIDENTIAL INFORMATION
(a) Licensee hereby acknowledges that the Program(s) embodies confidential and proprietary
information, including trade secrets, owned by Licensor or its Affiliates or suppliers (the "Program
Confidential Information").
(b) Excluding the Program(s) and the Program Confidential Information, the parties agree that any
other information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving
Party") under this Agreement and which is identified in writing as confidential or proprietary ("Other
Confidential Information") and, together with the Program Confidential Information, ("Confidential
Information") will remain the property of the Disclosing Party. If initially disclosed orally or visually,
Other Confidential Information must be identified as confidential at the time of disclosure and a written
summary thereof, also marked with such a legend, must be provided to the Receiving Party within 15
days of the initial disclosure. Notwithstanding the foregoing to the contrary, reports and/or information
related to or regarding Licensor's or its Affiliates', suppliers', or Channel Partner's business plans,
strategies, technology, research and development, current and prospective customers, billing records,
and products or services will be deemed Confidential Information even if not so marked or identified.
The Receiving Party will use the same degree of care, but not less than reasonable care, to protect the
confidentiality of the Disclosing Party's Confidential Information as it uses to protect its own similar
confidential and proprietary information. The Receiving Party agrees that it will not (i) use the Disclosing
Party's Confidential Information in any way, for its own account or the account of any third party, except
for the exercise of its rights and performance of its obligations under this Agreement, or (ii) disclose any
such Confidential Information to any party, other than furnishing such Confidential Information to (a) its
employees, Affiliates, Channel Partners and consultants who are required to have access to such
Confidential Information in connection with the exercise of its rights and performance of its obligations
under this Agreement and (b) professional advisers; provided that such employees, Affiliates,
consultants, Channel Partners and professional advisers are bound by written agreements or, in the case
of professional advisers, ethical duties, respecting such Confidential Information in accordance with the
terms of this Section 5. Notwithstanding anything to the contrary contained herein, Licensee agrees
that Licensor may disclose Licensee's Confidential Information to Licensor's third party software
suppliers solely for the purposes of providing Customer Support for the Program(s) and solely as such
issues relate to such third party software suppliers' components within the Program(s), provided that
any such disclosures are subject to terms and conditions at least as restrictive as those set forth in this
Section 5.
(c) The obligations of Section 5(b) will not extend to any information which:
(i) was lawfully known to Receiving Party prior to receipt from the disclosing party; or
(ii) enters the public domain in general through no wrongful act or breach of this Agreement by
Receiving Party; or
(iii) is received by Receiving Party from a third party having a legal right to disclose such information; or,
(iv) is developed independently by the Receiving Party without use of or reference to the Disclosing
Party's Confidential Information; or
(v) is required by law, regulation or court order to be disclosed, so long as the Receiving Party notifies
the Disclosing Party in writing prior to disclosing the Confidential Information so that the Disclosing
Party has an opportunity to seek a protective order or other appropriate remedy from the proper
authority. Receiving Party agrees to cooperate with the Disclosing Party in seeking such order or other
remedy or in defining the scope of any required disclosure.
(d) Receiving Party has the burden of proving the exceptions in section 5(c) above.
(e) The obligations of the parties with regard to Other Confidential Information will survive for a period
of three (3) years from the date of the first disclosure of such Other Confidential Information.
(f) If the parties have separately entered into a confidentiality agreement regarding the exchange of
Other Confidential Information in connection with this Agreement, then the terms of that separate
confidentiality agreement will govern the disclosure and use of Other Confidential Information between
the parties and not this Section 5. Any existing confidentiality agreements between the parties will
remain in full force and effect and will not be varied by the terms of this Section 5.
6. WARRANTIES; LIMITATION OF REMEDY
(a) Excluding Evaluation and Educational Licenses, the warranty for which is as set forth in Section
2(a)(iii), Licensor warrants to Licensee that the Program(s) will perform in all material respects as
specified in Licensor's most current user's manual(s) ("Manual") applicable to the Program(s) for ninety
(90) days from the Effective Date of Program(s) and for the period of time during which Licensee is
entitled to receive TECS for a Program(s). The warranty provided in this Section 6 will only apply to the
two (2) most current releases of the Program(s) provided to Licensee. This warranty will not apply if
Licensor has notified Licensee in writing that Licensor no longer supports the operating system version
on which such Program(s) is licensed.
(b) Licensor, its Affiliates, the Channel Partner and suppliers do not warrant the accuracy or the
applicability of the results obtained from the use of the Program(s) or the Manual. No other documents
or oral conversations, statements or representations will be offered by Licensee as evidence to explain,
expand, alter, add to or invalidate the express warranties set forth above.
(c) The warranties set forth herein are the sole warranties provided to Licensee and extend only to
Licensee itself. Licensor will not be responsible for any breach of warranty caused by (i) modifications
(or attempted modifications) to the Program(s) made by or on behalf of Licensee, whether authorized or
unauthorized, or (ii) any combination of the Program(s) with any other software, or (iii) any use of the
Program(s) other than on the Designated Network, or (iv) use of other than the most-current release of
the Program(s) and Manual.
(d) THE EXPRESS WARRANTY SET FORTH IN SECTION 6(a) OF THIS AGREEMENT IS IN LIEU OF, AND
LICENSOR, ITS AFFILIATES, CHANNEL PARTNERS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER
WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH
RESPECT TO THE PROGRAM(S) OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO ANY AND ALL
IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS
OR SUITABILITY FOR ANY PURPOSE (whether or not Licensor, its Affiliates, Channel Partners and/or
suppliers know, have reason to know, have been advised, or are otherwise in fact aware of any such
purpose), whether alleged to arise by law, by reason of custom or usage in the trade, or by course of
dealing. In addition, Licensor, its Affiliates, Channel Partners and suppliers expressly disclaim any
warranty or representation to any person other than Licensee with respect to the Program(s) or any part
thereof.
(e) In the event that Program(s) fails to perform in all material respects as warranted in this
Agreement, Licensor's sole obligation to Licensee will be, at Licensor's option, to:
(i) Provide a correction or work-around to correct the breach; or
(ii) Modify the Program(s) to conform substantially to the Manual; or
(iii) If the Manual is in error, modify the Manual to accurately reflect the Program(s)'s intended
functionality and actual operation; or
(iv) Terminate the license for that Program(s) and/or this Agreement and require Licensee to return the
Program(s) to Licensor, in which event Licensor will refund to Licensee a pro-rata portion of the amounts
paid for such Program(s). For a Paid-Up License, such pro-rata calculation will be based on straight-line
depreciation over a 36-month period following the applicable delivery date.
(f) LICENSEE'S REMEDIES AS SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE REMEDIES TO
WHICH LICENSEE IS ENTITLED.
(g) No oral conversations, statements, representations, or other documents, excluding a separately
signed agreement between Licensor and Licensee, will be offered by Licensee as evidence to explain,
expand, alter, add to or invalidate the above.
7. INDEMNIFICATION
(a) Licensor will defend at its expense any claim, suit or proceeding (each, a "Claim") brought against
Licensee by any third party to the extent such Claim asserts that the Program(s) infringes or conflicts
with any rights of such third party under copyright laws of any country that is a signatory to the Berne
Convention, any trademark issued under the laws of the United States, any State of the United States or
any member state of the European Union or any trade secret laws of the United States, any State of the
United States or any member state of the European Union, and Licensor will pay all costs and damages
finally awarded against Licensee by a court of competent jurisdiction or any settlement amounts finally
agreed to by Licensor as a result of any such Claim; provided, however, that Licensee (i) promptly
notifies Licensor in writing of such Claim; (ii) promptly gives Licensor the right to control and direct the
investigation, preparation, defense and settlement of such Claim, with counsel of Licensor's own
choosing (provided that Licensee will have the right to reasonably participate, at its own expense, in the
defense of any such Claim); and (iii) gives assistance and full cooperation for the defense of same. If a
Program(s) is, or in Licensor's opinion, might be held to infringe as set forth above, Licensor may, at its
option, (i) replace or modify the Program(s) so as to avoid infringement, (ii) procure the right for
Licensee to continue the use of the Program(s), or (iii) terminate any licenses to the Program(s) and/or
this Agreement and require Licensee to return the Program(s) to Licensor, in which event Licensor will
refund to Licensee a pro rata portion of the amounts paid for such Program(s). For a Paid-Up License,
such pro rata calculation will be based on straight-line depreciation over a 36-month period following
the applicable delivery date.
(b) The foregoing indemnity will not apply to any Claim based upon or arising from (i) use of the
Program(s) in a manner for which it was not designed or not in accordance with the Manual, (ii) use of
the Program(s), when use of a subsequent software release which Licensor has made commercially
available would have avoided such infringement; or (iii) Licensee's continued use of the Program(s)
subsequent to receipt of notice of any claimed infringement. This Section 7 represents the sole and
exclusive remedy of Licensee and the entire liability and obligation of Licensor with respect to
infringement or claims of infringement or misappropriation of any intellectual property right (including
any trade secret) by Licensor or by its operation, use or receipt of the Program(s).
8. LIMITATION OF LIABILITY AND INDEMNITY
(a) SUBJECT TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR, ITS AFFILIATES, CHANNEL
PARTNERS AND SUPPLIERS WILL NOT BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR ANY INDIRECT,
SPECIAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES OR LOSSES. Except for
Licensor's indemnification obligations set forth in Section 7(a) of this Agreement and for Licensor's
material breach of Section 5, in no event will Licensor's, its Affiliates', Channel Partners' and suppliers'
aggregate liability to Licensee exceed the greater of: (i) the fees paid by Licensee under the Agreement
or (ii) 5,000.00 U.S. Dollars. Licensee acknowledges that given all the circumstances, the limits on
Licensor's liability are reasonable because of (amongst other matters) the likelihood that without those
limitations the amount of damages awardable to Licensee for a breach by Licensor or Channel Partner of
this Agreement may be disproportionately greater than the license fees paid or payable for the
Program(s). For the avoidance of doubt, Licensee is entirely responsible for keeping full back up copies
of its software, data and database configurations in accordance with best industry practice. The
foregoing limitations of liability apply regardless of whether or not the parties have been advised of the
likelihood of such damages or losses and regardless of the theory of liability.
(b) Each of Licensor's, its Affiliates', Channel Partners' and suppliers' employees, agents, and sub-
contractors may rely upon and enforce the exclusions and restrictions of liability in this Section 8 in that
person's own name and for that person's own benefit, as if the words "and their employees, agents,
sub-contractors, and suppliers" followed the words "Licensor, its Affiliates, Channel Partners and
suppliers" wherever it appears in this Section 8.
(c) Notwithstanding anything to the contrary in this Agreement, neither party limits its liability (if any)
to the other party for any matter which it would be illegal for that party to exclude or to attempt to
exclude its liability, but nothing in this clause confers any right or remedy upon the other party to which
it would not otherwise be entitled.
(d) The Program(s) is a mathematical analysis tool intended to assist Licensee in Licensee's
development and design processes and requires considerable skill and judgment for its correct use and
for the interpretation of the computed results. The Program(s) is not intended to be nor is it a substitute
for rigorous and comprehensive prototype or other testing by Licensee of products prior to production
and sale. Licensee agrees to defend, indemnify and hold Licensor, its Affiliates, Channel Partners, and
suppliers, along with its and their officers, directors, employees and agents (collectively, the
"Indemnified Parties") harmless from and against all losses, damages, liability (including from the
Indemnified Parties' negligence with respect to the Program(s) and support thereof) incurred by such
Indemnified Parties (including reasonably attorneys' fees) as a result of Licensee's use of the Program(s);
provided, however that such indemnification obligations will not extend to (i) claims for which Licensor
is required to indemnify Licensee under Section 7, or (ii) claims for Licensor's breach of Section 5 or (iii)
claims arising out of Licensor's willful misconduct.
9. TECHNICAL ENHANCEMENTS AND CUSTOMER SUPPORT (TECS)
(a) TECS will consist of (i) reasonable telephone, e-mail or web-based support respecting the use of the
Program(s) ("Customer Support"); and (ii) Program releases or corrections provided by Licensor without
additional charge to TECS customers generally ("Technical Enhancements"). Customer Support will be
provided solely to the ASC. The ASC will provide first-level support to all of Licensee's users permitted to
use the Program(s) under the terms of this Agreement. Licensee may change the ASC at any time upon
written notice to the Channel Partner or, if the Program(s) were not obtained from a Channel Partner, to
Licensor. Customer Support will be provided by the Channel Partner unless otherwise specified by
Licensor. Technical Enhancements will be provided by Licensor at such times as determined solely by
Licensor. With regard to the SCADE family of products for which Licensee is current on TECS, if Licensee
determines that there is a problem with such Program(s) that it cannot resolve internally, Licensee shall
contact its Channel Partner, Affiliate or Licensor, as applicable. At that time, Licensee will contact the
Channel Partner and/or Affiliate and/or Licensor, as applicable, to inform it of the problem report (“PR”)
and will work with the Channel Partner, Affiliate and/or Licensor, as applicable, to help reproduce the
problem. From the date on which Licensee and the Channel Partner, Affiliate or Licensor, as applicable,
are able to reproduce the problem, the Channel Partner, Affiliate and/or Licensor, as applicable, shall
use reasonable commercial efforts to attain an average time to resolution for a PR as follows: (i) within
ten (10) working days for all Severity One PRs; and (ii) within thirty (30) calendar days for all Severity
Two PRs. A “Severity One PR” is a reported problem with the Program such that the Licensee is unable
to use the Program that results in a stoppage of all of Licensee’s design or production progress for which
such Program(s) are used. A “Severity Two PR” is a reported problem with the Program such that the
Licensee cannot use some portion of the Program but is able to continue to work on other aspects of
design or production.
(b) During the period of time in which Licensee is entitled to receive TECS for a Program, Licensee may
request three (3) replacement License Keys due to a change of the Designated Network within one year
from the TECS effective date at no additional charge. Additional replacement License Key(s) or
replacement License Key(s) during the period of time in which TECS is not current, may be provided in
consideration for payment of Licensor's then-current administrative fee.
(c) For a Lease License, the annual TECS fee is included in the Lease License fee.
(d) For a Paid-Up License, telephone or email assistance for Program installation will be provided
without charge for thirty (30) days from the Effective Date of Program(s). In consideration for payment
of the then-current TECS fees, TECS for a Paid-Up License will be provided by the Channel Partner or
Licensor. TECS will automatically renew at the then-current renewal fees for a renewal term equal to
the duration of the immediately preceding term unless Licensee, Channel Partner, or Licensor gives prior
written notice of its intent to terminate TECS no later than 30 days prior to the end of the TECS term.
TECS will terminate automatically upon Licensee's failure to: (i) deliver a valid purchase order or (2) pay
the then-current TECS renewal fees to Channel Partner or Licensor. In the event TECS is terminated prior
to the end of the term, no refund will be due to Licensee for any portion of the prepaid TECS fee.
(e) Licensor and the Channel Partner will have no obligation to provide TECS: (i) for other than the two
most recent commercially available releases of each Program(s); (ii) for any Program(s) that have been
altered, damaged or modified by Licensee or on Licensee's behalf; (iii) for any applications, models or
other customizations provided by Licensor or Channel Partner as part of a consulting services
engagement; or (iv) for any problems caused by Licensee's negligence or use of the Program(s) other
than in accordance with the Manual and this Agreement.
(f) Licensor may, from time to time, post notices of Class3 Errors in Program(s) on its Customer Portal
website (currently at http://www1.ansys.com/customer/) or in such other manner as Licensor may
decide in its sole discretion upon providing notice on the Customer Portal website. The ASC will
promptly notify all of Licensee's users of the Program(s) of Class3 Errors in the Program(s).
(g) In the event that TECS are discontinued by Licensee and the Licensee later wishes to reinstate TECS,
reinstatement may be permitted by Licensor in its sole discretion and, in addition to the applicable TECS
fee, a fee will be charged by Licensor for reinstatement in an amount to be determined by Licensor that
is no less than the total fees that would have been payable had TECS remained in effect during the
period in which it was discontinued.
10. MISCELLANEOUS
(a) All notices required in this Agreement will be given in writing to all parties and delivered by
registered mail or another established delivery service (such as UPS or FedEx), or mutually agreed
equivalent. Notices will be effective when received as indicated on the registered mail or other delivery
receipt. All notices will be given by Licensee to Licensor at the following address: ANSYS, Inc., Legal
Department, 2600 ANSYS Drive, Canonsburg, PA 15317. All notices will be given by Licensor to Licensee
at any location where Licensee conducts business, unless Licensee has previously notified Licensor of a
specific address for notices.
(b) Licensee will not assign this Agreement to any third party by operation of law, or in bankruptcy, or
otherwise without prior written consent of Licensor. This Agreement will be binding upon and inure to
the benefit of the parties hereto and their respective successors, permitted assigns and permitted
transferees.
(c) The provisions of Sections 2(d), 2(e), 3(d), 4, 5, 6(e), 6(f), 7, 8 and 10 will survive termination of this
Agreement.
(d) The rights and obligations of the parties hereto will be governed by the substantive law of the
Commonwealth of Pennsylvania, excluding the United Nations Convention on the International Sale of
Goods and choice of law provisions. If Pennsylvania law is not held to apply to this Agreement for any
reason, then in jurisdictions where warranties, guaranties, representations or and/or conditions of any
type may not be disclaimed, any such warranty, guaranty, representation and/or warranty is hereby
limited to the thirty (30) days or the shortest period allowed by law, whichever is greater.
(e) The parties hereto consent to the venue and jurisdiction of the federal and state courts maintaining
jurisdiction over Washington County, Pennsylvania for purposes of any legal proceedings arising under
or relating to this Agreement.
(f) If any provision of this Agreement will be invalid, such provision will be ineffective only to the
extent of such invalidity without invalidating the remainder of this Agreement.
(g) Any failure of any party to enforce any of the provisions of this Agreement will not be construed as
a waiver of such right of the party thereafter to enforce each and every such provision.
(h) The parties have required that this Agreement be drawn up in English.
(i) IN THE EVENT 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 WILL SUPERSEDE AND REPLACE THIS AGREEMENT, AND THIS AGREEMENT WILL BE
VOID. If Licensee has not previously agreed in writing to a software license agreement with Licensor
that specifically governs use of the Program(s), then: this Agreement constitutes the complete and
exclusive statement of the agreement between the parties and supersedes all proposals, oral or written,
and all other communications between the parties relating to the subject matter of this Agreement;
except as specifically provided herein, this Agreement may be modified only by a written amendment
executed by duly authorized officers or representatives of Licensor and Licensee; no purchase order or
any other standardized business forms issued by Licensee will be effective to contradict, modify, or
delete from the terms of this Agreement in any manner whatsoever, even if such purchase order or
other standardized business form provides that it takes precedence over any other agreement between
the parties; and, any acknowledgment, written or oral, of any such purchase order or standardized
business form is not recognized as a subsequent writing and will not act as acceptance of such terms.
11. ADDITIONAL PROVISIONS FOR ANSYS ENGINEERING KNOWLEDGE MANAGER ("EKM") PROGRAM(S)
(a) In addition to the foregoing terms herein, the additional terms set forth in this Section 11 will apply
to Licensee's use of EKM Program(s).
(b) Notwithstanding any terms herein to the contrary and subject to U.S. Export laws and regulations,
Licensee may access the EKM Program(s) from any Licensee or Licensee Affiliate location worldwide.
(c) In order to make the EKM Program(s) functional, Licensee needs to have a web application server
and a relational database. For Licensee's convenience, Licensor may provide certain open source
applications (e.g. an open source web application server and/or an open source relational database
and/or an open source graph visualization software( (“Open Source Application(s)”) along with the EKM
Program. Licensee may use these Open Source Application(s) solely under the terms and conditions of
the specific license under which the Open Source Application is distributed. Source code for any such
Open Source Application that the licensor of such Open Source Application has made available for use
by and disclosure to end users may be obtained by contacting Licensor at ekm.open.source@ansys.com.
ANY SUCH OPEN SOURCE APPLICATION IS DISTRIBUTED SOLELY IN THE HOPE THAT IT WILL BE USEFUL,
BUT IS PROVIDED "AS IS" WITHOUT ANY EXPRESSED OR IMPLIED WARRANTY; INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL LICENSOR, THE COPYRIGHT HOLDERS, OR THE CONTRIBUTORS BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT
NOT LIMITED TO, PROCUREMENT OF SUBSTUTUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR
PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILTIY,
WHETHER IN CONTRACT, STRICT LIABITLY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING
IN ANY WAY OUT OF THE USE OF SUCH OPEN SOURCE APPLICATION, EVEN IF ADVISED OF THE
POSSIBILTIY OF SUCH DAMAGE. ACCORDINGLY, THE INDEMNIFICATION PROVISIONS SET FORTH IN
SECTION 7 SHALL NOT APPLY TO SUCH OPEN SOURCE APPLICATION.
12. Code Armour Software. Licensee is aware that Licensor may embed the Program(s) with V.i.Labs
Code Armor Intelligence Software (“Code Armor Software”) that may report information to both V.i.
Labs and Licensor relating to unique user and network identification with respect to the use of the
Program(s) (including, but not limited to, user names, e-mail addresses, IP addresses and the domains
from which the use of the Software originated (collectively “User and Network Information”)). Neither
V.i. Labs nor Licensor will disclose any personally identifiable information to any third party (excluding its
legal advisors in the event of litigation regarding the same). Licensor and V.i. Labs only collect such
information in the event that it appears to the Code Armor Software that modifications to certain code
files of the Program(s) have been made or it appears to the Code Armor Software that the Program(s)
are being accessed by a License Key that was not authorized by Licensor.
13. Data Analytics. Licensee is aware that as part of Licensor’s Program(s)improvement program
Licensor may obtain feedback from the Program(s) regarding a summary of the hardware profile and
operating system of Licensee’s users, internal errors that are arising with respect to the Program(s) and
a summary of the regions of functionality of the Program(s) that Licensee is using. Licensor does not
anticipate receiving any personally identifiable information in connection with the Program
improvement program and would not disclose any such information to any third party in the event that
it did receive such information.

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