End User License Agreement
IMPORTANT NOTICE
PLEASE CAREFULLY READ THE FOLLOWING LICENSE AGREEMENT, WHICH IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND SIMPLIS. BY INSTALLING OR USING THE LICENSED MATERIALS (DEFINED BELOW) YOU: (1) SIGNIFY THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS IN THIS AGREEMENT; AND (2) EXPRESSLY AGREE TO THE TERMS SET FORTH BELOW. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE LICENSED MATERIALS.
This End User License Agreement(“Agreement”) is a legal agreement between “you” (which collectively refers to both the individual clicking the “I ACCEPT” button (when provided the option to accept this Agreement), and the entity (if any) on whose behalf such individual is acting), and SIMPLIS Technologies, Inc., an Oregon corporation (“SIMPLIS,” “we,” “us” or “our”).
The “Licensed Materials” licensed under this Agreement are a version of SIMPLIS’s (and its licensors’) proprietary software programs, libraries, and documentation and may only be used on the license terms set out below and we offer you a license on these terms.
By installing, copying or otherwise using the Licensed Materials you agree to abide by the provisions set forth herein. If you choose not to accept or agree to these provisions, do not install or otherwise use the Licensed Materials.
If you agree to the terms of this Agreement, you have the following rights, obligations and responsibilities:
1 License.
1.1We grant you a non-exclusive, non-transferable (as described below), non-sublicensable license to use the Licensed Materials for your internal commercial use. You may install the Licensed Materials on any number of machines; however, the Licensed Materials may only be used by you, your employees or freelance contractors working on your behalf and under your supervision. To the extent you are entering into this Agreement on behalf of an entity, your entity is responsible for all acts and/or omissions of its end users, and any breach of this agreement by an end user shall be deemed a breach by your entity. SIMPLIS and its licensors are under no obligation to install, maintain or support the Licensed Materials.
1.2You are not permitted to: (i) modify, adapt, merge, translate, reverse engineer, decompile or disassemble the whole or any part of the Licensed Materials (except as allowed by law); (ii) except as expressly provided in these terms, reproduce or deal in the Licensed Materials in any way; (iii) copy, publish, disclose, display, provide, rent, transfer or make available the Licensed Materials to any third party, or sublicense, transfer, or assign the Licensed Materials or your rights under this Agreement to any third party; (iv) mortgage, pledge or encumber the Licensed Materials in any way; or (v) use the Licensed Materials to provide services based on the Licensed Materials, including without limitation, service bureau use or web-based simulation services.
2 Intellectual Property Rights. The Licensed Materials contain copyrighted material, trade secrets and other proprietary information of SIMPLIS and its licensors and are protected by copyright laws, international copyright treaties, and trade secret laws, as well as other intellectual property laws. In particular: (i) the SIMetrix component of the Licensed Materials is owned by SIMetrix Technologies Ltd., a limited company organized under the laws of England and Wales (“SIMetrix”) (with SIMetrix granting to SIMPLIS the right to grant licenses to and distribute the SIMetrix component of the Licensed Materials); and (ii) the SIMPLIS component of the Licensed Materials is owned by SIMPLIS. To protect SIMPLIS’s and its licensors’ rights in the Licensed Materials, you agree, except as specifically permitted by a statutory provision that cannot be waived by contract, not to “unlock”, decompile, reverse engineer, disassemble or otherwise translate to a human-perceivable form any portions of the Licensed Materials provided to you in object code format only, nor permit any person or entity to do so. You shall not remove, alter, cover, or obscure any confidentiality, trade secret, trademark, patent, copyright or other proprietary rights notice or other identifying marks or designs from any component of the Licensed Materials and you shall reproduce and include in all copies of the Licensed Materials the copyright notice(s) and proprietary legend(s) of SIMPLIS and its licensors as they appear in the Licensed Materials. SIMPLIS and its licensors reserve all rights not specifically granted under this Agreement.
3 License Versions.
3.1We issue a number of different types of license. These are sold at different prices and each has its own part number. The license type can be determined by a single letter that is applied as a suffix to the part number.
Suffix S: “Standalone.” (Obsolete) This is unprotected or locked to an ethernet adapter. You are permitted to install it on one machine at a time only. Commercial use by you is permitted.
Suffix P: “Portable.” This is protected by a dongle. You may install it on any number of machines. Commercial use by you is permitted. Lost or damaged dongles may be replaced subject to our Dongle Replacement Policy.
Suffix N: “Local Network.” This is protected by a network license manager. The license manager must be installed on a system on site or located at site not more than 248 miles/400 km away from the user. The license manager system must be under your control and may not be hosted on a cloud-based server. You may install it on any number of machines. Commercial use by you is permitted. You must not install more than one license manager for each license issued. You must install the license manager in a manner such that it is not accessible to users who are not your employees or freelance subcontractors. Local Network licenses are locked to a single server machine using a globally unique identifier. The license manager program for Local network licenses must run on a server with a different MAC address from any server running a license manager for a Wide Area Network license. A locally administered MAC addresses is not permitted as a globally unique identifier. A license may be transferred to a new machine ("Rehosted") subject to the conditions defined in paragraph 3.2
Suffix W: “Wide Area Network”. This is protected by a network license manager. The license manager may be located anywhere. You may install on any number of machines. Commercial use by you is permitted. You must not install more than one license manager for each license issued. You must install the license manager in a manner such that it is not accessible to users who are not your employees or freelance subcontractors. Wide Area Network licenses are locked to a single server machine using a globally unique identifier. The license manager program for Wide Area Network licenses must run on a server with a different MAC address from any server running a license manager for a Local Network license. A locally administered MAC addresses is not permitted as a globally unique identifier. A license may be transferred to a new machine ("Rehosted") subject to the conditions defined in paragraph 3.2
Suffix E: “Education” same as “Local Network”, but commercial use by you is not permitted. You may use it only for purposes of classroom instruction and student research. You must not install more than one license manager for each license issued. You must install the license manager in a manner such that it is not accessible to users who are not your students or employees. Education license are locked to a single server machine using a globally unique identifier. A locally administered MAC addresses is not permitted as a globally unique identifier. A license may be transferred to a new machine ("Rehosted") subject to the conditions defined in paragraph 3.2
You agree to abide by the restrictions described above for the license that you have chosen.
Whatever the version of the license, the Licensed Materials may not in any circumstances be used for providing services based on the Licensed Materials (in particular, web based simulation services).
Where the license is time limited you agree to abide by the time restriction. In particular, you agree not to alter the clock of your machine in order to circumvent this.
3.2Network licenses (suffixes, N, W and E) may be rehosted at no cost subject to the conditions detailed below. A rehost fee will be levied if these conditions cannot be met.
3.2.1You destroy all copies of the old license not stored on backup media
3.2.2You agree to destroy any license copies recovered from backup media
3.2.3We receive a signed declaration that 3.2.1 has been completed. The declaration should be signed by a senior staff member such as an officer of your company or head of Information Technology
3.2.4You have not received a rehosted license in the previous 18 months
4 Disclaimers; Limitations of Liability.
4.1THE LICENSED MATERIALS ARE PROVIDED “AS IS” AND WITH ALL FAULTS. SIMPLIS AND ITS LICENSORS DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND REGARDING THE LICENSED MATERIALS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS, TRADE SECRETS, OR OTHER INTELLECTUAL PROPERTY RIGHTS. YOU ACKNOWLEDGE AND AGREE THAT SIMPLIS SHALL NOT BE LIABLE FOR AND SHALL HAVE NO OBLIGATION TO DEFEND OR INDEMNIFY YOU AGAINST ANY THIRD PARTY INFRINGEMENT CLAIM THAT RELATES TO OR IS BASED ON YOUR USE OF THE LICENSED MATERIALS.
4.2TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SIMPLIS, OR ITS LICENSORS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE USE OF THE LICENSED MATERIALS, REGARDLESS OF WHETHER SIMPLIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR OTHERWISE HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, OUTSIDE COMPUTER TIME, LABOR COSTS, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, OR LOSS OF USE OR INTERRUPTION OF BUSINESS.
5 Refunds No refund is possible for the Licensed Materials once a license file has been issued.
6 Governing Law; Arbitration. This Agreement and the rights and obligations of the parties hereto shall be governed by and interpreted in accordance with the laws of the State of Oregon in the United States of America, without reference to Oregon’s conflict of laws principles. Any dispute arising from or related to this Agreement shall be resolved by binding arbitration to be conducted in accordance with American Arbitration Association Commercial Arbitration Rules, in Portland, Oregon, USA. You hereby consent to and agree not to contest arbitration in the foregoing venue. The arbitration award will be final, and judgment on the award may be entered in any court having jurisdiction. Each party shall pay its own expenses in connection with the arbitration, and the parties shall share equally the compensation and expenses of the arbitrator. Notwithstanding the foregoing, claims for preliminary or temporary injunctive relief or other pre-judgment remedies may be brought in any court or tribunal having personal jurisdiction over a party. The United Nations Convention on Contracts for International Sale of Goods does not apply to this Agreement.
ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT AND/OR THE LICENSED SOFTWARE SHALL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7 U.S. Government Restricted Rights; Export Restrictions.
7.1The Licensed Materials are a "commercial item," as that term is defined at 48 CFR 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 CFR 12.212. Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202-4, all U.S. Government users acquire the Licensed Materials with only those rights set forth herein.
7.2You may not download, export or re-export the Licensed Materials: (i) into, or to a national or resident of, any country to which the United States has embargoed goods; or (ii) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. Accordingly, you hereby represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. You acknowledge that it is your sole responsibility to comply with any and all government export and other applicable laws and that SIMPLIS has no responsibility with respect thereto.
8 General.
8.1This Agreement is written and executed in the English language which shall be authoritative and controlling, whether or not translated into a language other than English in order to comply with any law or for reference purposes.
8.2No waiver by SIMPLIS will be binding on SIMPLIS unless it is in writing and signed by SIMPLIS and SIMPLIS’s waiver of a breach of a provision of this Agreement will not be a waiver of any other provision or a waiver of a subsequent breach of the same provision.
8.3If any term or provision of this Agreement is determined to be unenforceable in any respect, the enforceability of the term or provision in any other respect and of the remaining provisions of this Agreement will not be impaired.
8.4You may not assign or transfer this Agreement or the license rights granted under this Agreement without SIMPLIS’s prior written consent, which SIMPLIS may refuse, withhold, condition or delay, in its sole and absolute discretion.
8.5This is the entire agreement between you and SIMPLIS and this Agreement supersedes any prior agreement between the parties related to the subject matter of this Agreement. Notwithstanding the foregoing, any signed and effective software license agreement relating to the subject matter hereof and stating expressly that such agreement shall control regardless of any subsequent click-wrap, shrink-wrap or web-wrap, shall supersede the terms of this Agreement. You hereby represent and warrant that either: (i) you will use the Licensed Materials for your own benefit and personally accept, agree to and intend to be bound by these terms; or (ii) you are authorized to and intend to be bound by these terms on behalf of your company or entity.