BEFORE YOU OPEN THE PACKAGE CONTAINING THE MEDIA OR USE THIS SOFTWARE, YOU SHOULD CAREFULLY READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. BY OPENING THE PACKAGE OR USING THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT AND YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LICENSE AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, YOU SHOULD RETURN THE SOFTWARE UNUSED WITHIN FIFTEEN (15) DAYS OF PURCHASE AND YOU WILL RECEIVE A REFUND OF ANY MONEY WHICH YOU PAID FOR THE USE OF THIS SOFTWARE
SINDA/FLUINT, THERMAL DESKTOP, RadCAD, FloCAD, and TD DIRECT LICENSE AGREEMENT
Subject to the provisions contained herein, Cullimore and Ring Technologies, Inc. (“CRTech”) hereby grants you (“Licensee”) a nonexclusive license to use SINDA/FLUINT, THERMAL DESKTOP, and TD DIRECT (“Software”) contained in the package on one "Machine" (processing unit or file "Server," depending on your purchase).
SOFTWARE AND DOCUMENTATION. CRTech shall furnish the Software to you on media in machine-readable object code form and will also provide with the Software its standard manual containing instructions for operation and use of the Software (“Documentation”).
LICENSE TERM. The term of this license commences upon delivery of the Software to you and is perpetual unless earlier terminated upon default by one of the parties or as otherwise set forth herein. The perpetual term does not imply any perpetual obligation on CRTech’s part to transfer the license to replacement Machines or Servers.
TITLE. Title, and ownership right, and intellectual property rights in and to the Software and Documentation shall remain in CRTech and/or in suppliers to CRTech of programs contained in the Software. You agree not to attempt to decipher or decompile the Software or knowingly allow others to do so. You also agree not to develop passwords or registration numbers, or to determine how CRTech develops such password(s) or registration numbers, or to otherwise enable any usage or feature on equipment or for users not licensed or to knowingly allow others to do so.
RESTRICTED USE. If CRTech identifies the Software as a "Standalone Version" or "Fixed License" the Software shall be used exclusively by you, your employees, and qualified consultants. Licensee may Install a single primary copy of the specific release of the Licensed Materials designated in the applicable License Identification on one (1) Computer, on a Stand-alone Basis, and permit Access to such primary copy of the Licensed Materials solely by Licensee’s Personnel, and solely for Licensee’s Internal Business Needs. The Licensee shall choose one named user to use the standalone license. Licensee may also Install a single additional copy of such Licensed Materials on one (1) additional Computer, on a Stand-alone Basis; provided that (i) such additional copy of the Licensed Materials is Accessed solely by the same person as the primary copy; (ii) such person is Licensee (if Licensee is an individual) or an employee of Licensee; (iii) such person Accesses the additional copy solely to perform work while away from that person’s usual work location and solely for Licensee’s Internal Business Needs; and (iv) the primary and additional copies are not Accessed at the same time. Stand-alone License is for a perpetual term, except as otherwise provided in this Agreement. Licensee may also backup and restore the installed Licensed materials as part of its standard information technology management processes. Stand-alone licenses allow eight (8) processes to be launched at a time, but if using remote desktop only one (1) process can be launched. Additional processes are available at an additional charge. If CRTech identifies the Software as a "Network License" or "Floating Version" you may install, access and use one (1) copy of the Software on your computer file Server, for your own internal business needs, with the License Manager tool provided by CRTech. The Software may be installed on or accessed by other computers, or on an individual computer, as a multiple-user installation, so long as the maximum number of concurrent users does not exceed the permitted number and the computers are within the same local area network as the floating license server. A consultant is qualified only if he/she has agreed to abide by the restrictions imposed upon you in this license. You shall not allow others to use or have access to the Software, either directly or indirectly. You may not modify the Software or Documentation or make derivative or compilation works of them. Documentation may be copied provided no alterations are made. Making copies of the Software, except for archival purposes or as an essential step in the utilization of the Software in conjunction with the Machine or Server, without written authorization from CRTech is prohibited.
If replacement Software is provided to you by CRTech, you may retain prior Software and continue to use prior Software. Warranties described elsewhere in this agreement apply exclusively to the replacement Software. All other terms of this agreement apply to any retained copies of prior Software.
ADDITIONAL SITES. If you desire to use the Software on additional Machines or Servers, you may do so by notifying CRTech and paying CRTech the amount listed on CRTech’s then current price list, at which time this license will be expanded to cover your use of the Software on such new Machines or Servers.
MULTIPLE SITES. If you desire to use the Software across multiple sites within a single country, a wide area network (WAN) license is required. Licenses can be converted to WAN licenses through the payment of an WAN uplift fee. Global Wide Area Network licenses (GWAN) can be used across multiple countries, but a GWAN uplift fee must be purchased.
NONTRANSFERABLE. This license and the Software and Documentation to which it applies may not be transferred except to the extent that the Software and Documentation are transferred to successors of your business in which it is employed, or where written approval is obtained from CRTech. Written approval by CRTech shall not be unreasonably withheld. Written approval is not required for transfers due to merger, acquisition, divestitures, or sale of all or substantially all of its assets. CRTech must receive a written notification of these type of transfers. When Software and Documentation is so transferred, the terms and conditions of this License shall be binding on such successors.
EXPORT CONTROL.Licensee acknowledges and agrees that the CRTech Materials and Services (including any data submitted by Licensee in connection with a Service and any Licensee-specific output generated by a Service) are subject to compliance with United States and other applicable country export control and trade sanctions laws, rules and regulations, including, without limitation the regulations promulgated by the U.S. Department of Commerce and the U.S. Department of the Treasury (collectively, "Export Control Laws"). Licensee represents, warrants and covenants that neither Licensee nor Licensee’s Personnel (i) are a citizen or resident of, or located within, a nation that is subject to U.S. trade sanctions or other significant trade restrictions (including, without limitation, Côte d'Ivoire/Ivory Coast, Cuba, Democratic Republic of the Congo, Iran, Libya, Republic of the Congo, Somalia, Myanmar, Sudan, Syria and North Korea), (ii) are identified on any of the U.S. government restricted party lists (including, without limitation, the U.S. Treasury Department's List of Specially Designated Nationals and Blocked Persons, the U.S. Department of Commerce’s Denied Party List, Entity List and Unverified List and the U.S. Department of State’s proliferation-related lists), (iii) will, unless otherwise authorized under the Export Control Laws, use CRTech Materials or Services in any restricted end use, including, without limitation, design, analysis, simulation, estimation, testing, or other activities related to nuclear, chemical/biological weapons, rocket systems or unmanned air vehicles applications, or (iv) will use the CRTech Materials or Services to disclose, transfer, download, export, or re-export, directly or indirectly, any Licensee-specific output generated by the CRTech Materials or Services, Licensee content, third party content, or any other content or material to any country, entity, or party that is ineligible to receive such items under the Export Control Laws or other laws or regulations to which Licensee may be subject. Licensee understands that the requirements and restrictions of the Export Control Laws as applicable to Licensee may vary depending on the CRTech Materials or Services provided under this Agreement and may change over time. Licensee shall be solely responsible for (i) determining the precise controls applicable to the CRTech Materials or Services, and (ii) complying with the Export Control Laws and monitoring any modifications to them.
WARRANTY. CRTech warrants that the Software, if operated as directed, will substantially achieve the functionality described in the Documentation. CRTech does not warrant, however, that your use of the Software will be uninterrupted or that the operation of the Software will be error-free. CRTech’s sole and exclusive obligation and liability for any breach of this warranty shall be, in CRTech’s sole discretion: (i) to advise you on how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set forth in the Documentation; or (ii) to replace or correct your defective media; or (iii) to credit or refund the purchase price paid by you for the license to the defective Software, including unused portion of the pre-paid maintenance. THIS IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY CRTech. CRTech MAKES NO OTHER EXPRESS OR IMPLIED WARRANTY AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO CRTech DEALER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSION, OR ADDITIONS TO THIS WARRANTY. If any modifications are made to the Software by you, or if you violate the terms of this agreement, this warranty shall immediately be terminated. This warranty shall not apply if the Software is used on or in conjunction with hardware or programs other than the unmodified version of hardware and programs with which the Software was designed to be used as described in the Documentation.
Some states or jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. This warranty gives you specific legal rights and you may also have other rights which vary by state or jurisdiction.
LIMITED LIABILITY. Your sole and exclusive remedies for any damage or loss in any way connected with the Software, whether by CRTech’s breach of any express or implied warranty, negligence, or breach of any other duty, shall be, at CRTech’s option, repair or replacement of the Software or return for credit or refund of CRTech’s purchase price for a license to such Software or Documentation. Under no circumstances and under no legal theory, tort, contract, or otherwise, shall CRTech be liable to you or to any other person for any indirect, special, incidental, or consequential damages of any character including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, or for any damages in excess of CRTech’s purchase price for a license to the Software and Documentation, even if CRTech shall have been informed of the possibility of such damages.
Some states or jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above exclusion may not apply to you.
DISPUTE RESOLUTION. In the event the parties are unable to resolve any dispute or alleged breach of this Agreement:
(a) Each party agrees to submit the matter to an arbitration panel and make every good faith effort to resolve the matter.
(b) The arbitration panel shall be made of three arbitrators to be nominated in accordance with the American Arbitration Association (AAA) rules. The arbitration panel will follow the AAA rules except as set forth to the contrary in this Agreement. Every effort will be made to accomplish the goals of arbitration, mainly to promptly resolve the matter with minimal cost.
(c) The laws of Colorado shall govern this Agreement and any disputes arising there under. The arbitration proceedings shall be conducted in Colorado, or such other place as may be mutually agreed by the parties. The arbitration, regardless of location, will be conducted in English.
(d) The prevailing party can file the order for enforcement in the jurisdiction having jurisdiction over the non-prevailing party.
(e) The order is binding unless appealed by the non-prevailing party.
(f) The arbitrators shall have no authority to award punitive damages or any other damages not measured by the prevailing party's actual damages, and may not, in any even make any ruling, finding or award that does not conform to the terms and conditions of the contract.
(g) The arbitrators shall award to the prevailing party, if any, as determined by the arbitrators, all of its costs and fees. "Cost and fees" means all arbitrator's fees, administrative fees, travel expenses, out-of-pocket expenses, such as copying and telephone costs, witness fees and attorney's fees. Costs and fees paid by either party shall not exceed the purchase price paid by you for the license to the disputed Software, including unused portion of the pre-paid maintenance.
(h) The proceedings and the resolution, order and terms will be confidential.
FORCE MAJEURE. No failure, delay or default in performance of any obligation of a party to this Agreement shall constitute an event of default or breach, to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control and without negligence of the party otherwise chargeable with failure, delay or default. Either party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other party. This section shall in no way limit the right of either party to make any claim against third parties for any damages suffered due to said causes. If any performance date under this Agreement is postponed or extended pursuant to this section for longer than thirty (30) calendar days, you, by written notice given during the postponement or extension, may terminate CRtech’s right to render further performance after the effective date of termination without liability for that termination.
LIABILITY AND INDEMNIFICATION. Licensor shall indemnify, defend and hold licensee harmless from any and all claims, losses, deficiencies, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Licensee as a result of any claim, judgment, or adjudication against licensee arising from a claim that licensee’s use of the Licensed Software, documentation, services or any deliverables provided by Licensor pursuant to this License Agreement infringes any valid patent, any valid copyright, trademark rights or other intellectual property of a third party. Licensee shall notify Licensor in writing of such claim.
In the event that the Licensed Software is held by a court of competent jurisdiction to infringe a third party’s proprietary rights, Licensor shall have the option, at its expense and sole discretion, to (a) modify the Licensed Software to be non-infringing, (b) obtain for licensee a license to continue using the Licensed Software, (c) substitute the Licensed Software with other software reasonably suitable to licensee, or (d) if none of the foregoing remedies are commercially feasible, terminate the license for the infringing Licensed Software and refund in one lump sum the fees paid for that Licensed Software and any unused portion of prepaid maintenance fees.
EXCEPTIONS TO PROHIBITIONS. The prohibitions contained in this Agreement will not apply where and to the extent applicable law does not allow such prohibitions to be enforced. Licensee may have other rights under the laws of the state or country within the Territory where the Licensed Materials are acquired, and this Agreement does not change Licensee’s rights under the laws of such state or country if and to the extent the laws of such state or country do not permit this Agreement to do so. Licensee will bear the burden of proof to demonstrate that applicable law does not allow (i) the enforcement of such prohibitions; or (ii) this Agreement to change particular rights in a state or country (and that Licensee has not exceeded the bounds of the unenforceable prohibitions and unchangeable rights).
ADVERTISEMENT. CRTech shall not advertise, market, or otherwise disclose to others any information relating to the existence of this Agreement nor make use of your name, logo or marks, nor those of its subsidiary or affiliated companies.
MAINTENANCE AND SUPPORT. CRTech will provide to you any maintenance releases and new version releases that are generally available to end users who have purchased and maintained current support agreements. CRTech will provide user support for the most current maintenance releases made with respect to the current new version release. In addition, CRTech will provide user support, but not patch or defect repair support, for at least the last one (1) new version release immediately preceding the current version. CRTech will provide software patches only for the current new version release. You have the option of migrating to next generation versions of the licensed software with no additional software license fees, provided you have a currently active support contract. Next generation product functionality will be substantively similar to that of prior versions. CRTech will notify you 90 days prior to the expiration of the then current maintenance period of such expiration. CRTech is under no obligation to provide license transfer services for either versions of Software older than the current release version, nor any transfers in the absence of an active support agreement. CRTech reserves the right to refuse user support for text based input files and complex user logic.
TERMINATION. Either party may terminate this Agreement immediately in the event of default by the other party. Upon termination of this Agreement, you shall immediately discontinue the use of the Software and shall within fifteen (15) days return to CRTech all copies of the Software and Documentation. You may also terminate this Agreement at any time by destroying the Software and Documentation and all copies thereof. Your obligation to pay accrued charges and fees shall survive any termination of this Agreement upon written notice, except for past due payments which customer will receive written notice and 30 days to cure breach.
MISCELLANEOUS. Unless the Licensee is the U.S. Government, this Agreement represents the complete and exclusive statement of the agreements concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended only by a writing executed by both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU FOR THE SOFTWARE AND/OR DOCUMENTATION IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN AS AGREED BY THE PARTIES, AND CRTech AGREES TO FURNISH THE SOFTWARE AND DOCUMENTATION ONLY UPON THESE TERMS AND CONDITIONS AND NOT THOSE CONTAINED IN YOUR PURCHASE ORDER.
If Licensee is the U.S. Government, then to the extent the terms and conditions in this Agreement are inconsistent with Federal law (see FAR 12.212(a)), they shall be unenforceable.
If any provision of this Agreement is held to be ineffective, unenforceable, or illegal under certain circumstances for any reason, such decision shall not affect the validity or enforceability (i) of such provision under other circumstances or (ii) of the remaining provision hereof under all circumstances and such provision shall be reformed to and only to the extent necessary to make it effective, enforceable, and legal under such circumstances. This agreement shall be governed by and construed under Colorado law as such law applies to agreements between Colorado residents entered into and to be performed entirely within Colorado, except as required by U.S. Government rules and regulations to be governed by Federal law.
U.S. Government Restricted Rights
Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraph (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (C) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013. Contractor/manufacturer is Cullimore and Ring Technologies, Inc., 2501 Briarwood Dr, Boulder, Colorado 80305.