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IMPORTANT – READ CAREFULLY: THIS SOFTWARE LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND VISUAL NUMERICS, INC. IF YOU ARE INSTALLING THE SOFTWARE FOR PERSONAL USE, THIS AGREEMENT APPLIES TO AND BINDS YOU PERSONALLY. IF YOU ARE INSTALLING THE SOFTWARE AS PART OF YOUR WORK FOR AN ORGANIZATION, THIS AGREEMENT APPLIES TO AND BINDS SUCH ORGANIZATION. “LICENSEE” OR “YOU” AND “YOUR” REFER TO THE PERSON OR ENTITY THAT IS LICENSEE OF THE SOFTWARE. BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE THAT ACCOMPANIES THIS AGREEMENT, YOU OR SUCH ENTITY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU OR SUCH ORGANIZATION DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE, COPY OR INSTALL THE SOFTWARE, AND SHOULD, WITHIN THIRTY (30) DAYS OF PURCHASE, RETURN IT WHERE YOU OBTAINED THE SOFTWARE, FOR A FULL REFUND.
“Application” means a software application created by a Licensed Developer to support the operation of Licensee’s business that makes use of or incorporates the Software in its implementation without exposing any part of the Software application programming interface either directly or indirectly.
“Licensed Developer” means an individual software developer, employed by or under contract to Licensee, whom Licensee has designated as a “Licensed Developer,” and for whom Licensee has paid the applicable development license fees required to authorize such person to use the Software to develop Applications on Licensee’s behalf.
“Licensed Server” means a single computing device consisting of a number of CPU cores, owned or leased by Licensee or contractors under Licensee’s control, for which Licensee has paid the applicable server deployment license fees required to authorize Licensee to deploy and use Applications on such device. Deployment licenses for Licensed Servers are priced on a per core basis.
“Licensed Workstation” means a single computing device consisting of not more than 4 CPUs with not more than 4 cores per CPU (i.e. a total of 16 physical processing cores), owned or leased by Customer or contractors under Customer’s control, for which Customer has paid the applicable fees required for a single individual to deploy and use Applications on such device.
“Software” means VNI’s proprietary IMSL® Fortran software library, in object code form, together with any printed, electronic or online documentation purchased from VNI or provided by VNI (the “Documentation”).
“Workstation User” means a single individual, employed by or under contract to Licensee, whom Licensee has designated as a “Workstation User,” and for whom Licensee has paid the applicable workstation deployment fees required to authorize such person to use Applications deployed by a Licensed Developer on a Licensed Workstation. Upon payment of the appropriate fees, a Licensed Developer may also become a licensed Workstation User. However, a Licensed Developer may not use Applications in a production environment unless he or she is also a licensed Workstation User.
2. Development License Rights and Restrictions.
(a) Development Rights. Subject to the terms and conditions of this Agreement, and upon payment of the applicable fees, VNI grants to Licensee a perpetual, non-transferable, non-exclusive, fee bearing license to permit Licensed Developers to install and use the Software in object code form for the sole purpose of creating and testing Applications. Licensee may also make a single backup copy of the Software for archival purposes.
(b) Development Restrictions. Licensee may not allow anyone other than a Licensed Developer to use the Software or Documentation for the development of Applications or allow Licensed Developers to use the Software or Documentation for any purpose except for the development of Applications.
3. Deployment License Rights and Restrictions.
(a) Workstation Deployment Rights. Subject to the terms and conditions of this Agreement, and upon payment of the applicable fees, VNI grants to Licensee a perpetual, non-transferable, non-exclusive, fee bearing license to permit Licensed Developers to install Applications on Licensed Workstations, located at facilities owned by Licensee or contractors under Licensee’s control, and to permit Workstation Users to use such Applications to support the operation of Licensee’s business.
(b) Server Deployment Rights. Subject to the terms and conditions of this Agreement, and upon payment of the applicable fees, VNI grants to Licensee a perpetual, non-transferable, non-exclusive, fee bearing license to permit Licensed Developers to install Applications on Licensed Servers, located at facilities owned by Licensee or contractors under Licensee’s control, and to permit Licensee’s employees or contractors under of Licensee’s control to use such Applications to support the operation of Licensee’s business.
(c) Deployment Restrictions. Licensee may not distribute the Software or any Applications outside of its organization. Licensee may not allow anyone other than a Workstation User to use Applications deployed on a Licensed Workstation and may not allow anyone other than employees or contractors under its control to use Applications deployed on Licensed Servers. Licensee may not allow anyone to distribute or deploy Applications on computing devices other than Licensed Workstations or Licensed Servers.
4. Prices and Payment.
Licensee shall pay license fees for the Software in accordance with the terms of Licensee’s fee Agreement with Absoft Corporation. Licensee shall pay all taxes arising from or related to its license or use of the Software, excluding taxes based solely on VNI’s net income, provided that Licensee shall have no such tax obligation upon presentation of satisfactory evidence of its exemption from applicable taxes.
5. Limited Warranty and Limitation of Liability.
VNI warrants that the Software will perform substantially in accordance with the Documentation for a period of thirty (30) days from the date of receipt. If Licensee claims a defect in the Software under this warranty, Licensee should return the Software during the warranty period to the distributor form whom Licensee obtained the Software, or directly to Absoft Corporation.
VNI’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS LIMITED WARRANTY SHALL BE, AT VNI’S OPTION, EITHER (1) RETURN OF THE PRICE PAID, OR (2) REPAIR OR REPLACEMENT OF THE SOFTWARE. THIS LIMITED WARRANTY IS VOID IF FAILURE OF THE SOFTWARE HAS RESULTED FROM ACCIDENT, ABUSE, IMPROPER INSTALLATION OR MISUSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VNI AND ITS RESELLERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
VNI WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOST SAVINGS), EVEN IF VNI OR ITS RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REGARDLESS OF THE BASIS ON WHICH YOUR CLAIM FOR DAMAGES AGAINST VNI, VNI’S ENTIRE LIABILITY TO YOU IS LIMITED TO NO MORE THAN THE AMOUNT YOU PAID FOR THE SOFTWARE. VNI WILL NOT BE LIABLE TO YOU FOR ANY THIRD PARTY CLAIMS OR DAMAGE TO OR LOSS OF YOUR RECORDS OR DATA.
This Agreement gives You specific legal rights. You may have others that vary by jurisdiction. In some jurisdictions exclusion or limitation of consequential or incidental damages, and/or exclusion or limitation of liability for personal injury, and/or limitations on duration of an implied warranty may not apply to You. This Agreement does not affect any statutory rights of consumers that cannot be waived or limited by contract.
6. U.S. Government.
The Software and Documentation were developed at private expense and are “Commercial Items” 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 or 48 CFR 227.7202-1 through 227.7202-4, as applicable. The Software and Documentation are licensed to U.S. Government end users only as Commercial Items and with only those rights granted to all other end users pursuant to the terms and conditions herein. The Software licensed to civilian agencies is licensed with Restricted Rights pursuant to FAR 52.227-19. The Software is unpublished – all rights reserved under the copyright laws of the United States and international treaties. The manufacturer is Visual Numerics, Inc., A Rogue Wave Software Company, 5500 Flatiron Parkway, Suite 200, Boulder, Colorado 80016.
7. Infringement Claims.
VNI will defend at its own expense, indemnify and hold You harmless in any action brought against You on a claim that the Software infringes any third party’s patent or copyright, provided that You promptly notify VNI in writing of such claim, VNI has sole control over the defense of the claim and/or any settlement negotiations, and You cooperate fully in the defense of the claim. VNI will pay those costs and damages finally awarded against You in any such claim. At its option, VNI may, in lieu of any other claims by You for indemnification, obtain the right for You to continue using the Software, or repair it, replace it or terminate this Agreement, including any licenses granted herein. The foregoing states VNI’s entire obligation to You for indemnification of third party infringement claims.
8. Term and Termination.
This Agreement shall take effect as of the date of Your acceptance of this Agreement and shall continue in effect thereafter until terminated by either party. If You fail to comply with any material term or condition herein, VNI may, at its option, without prejudice to any other rights, terminate this Agreement and/or any license(s) granted herein (including all perpetual Development and Application Deployment licenses) if such default remains uncorrected thirty (30) days after notice is sent to Licensee. Following termination, You must return or destroy, as requested by VNI, all copies of the Software and Documentation in Your possession (whether modified or unmodified). You agree to certify Your compliance with such requirement upon VNI’s request. Sections 1, 5, 7, 9, 10, and 12, and this survival clause, shall survive termination of this Agreement. Unless terminated by VNI for Licensee’s material breach in accordance with this Section 8, the Development and Application Deployment licenses granted pursuant to Section 2 and 3 of this Agreement shall survive any termination of this Agreement.
You agree to maintain in confidence the confidential information of VNI, including any source code to any VNI software programs to which You have access. You further agree not to disclose such VNI confidential information to anyone other than Your employees or contractors who have a need to know or obtain access to such information in order to support Your authorized use of the Software who are bound, by a written agreement, to protect such information against any other use or disclosure.
All rights not specifically granted herein are retained by VNI. The Software and Documentation is copyrighted by Visual Numerics, Inc., and is licensed, not sold. VNI retains sole and exclusive ownership of all right, title, and interest in and to the Software and Documentation, and all copies thereof, subject only to the licenses expressly granted to You herein. This Agreement does not provide You with title or ownership of the Software and Documentation, but only a revocable license of limited use. Except as provided herein You may not rent, lease, loan, duplicate, distribute, publish, transfer, sublicense, or make the Software or Documentation available in any form to others. You may not reverse engineer, decompile, or disassemble the Software. You agree to reproduce any VNI proprietary and copyright notices concerning the Software on all copies of the Application that include VNI’s copyrighted works as authorized by this Agreement. Licensee may not modify or port the Software to operate on or deploy Applications on platforms other than the Windows platform.
VNI provides no support or maintenance for the Software under this Agreement.
All notices or other communications required to be given hereunder shall be in writing and delivered via certified mail, Express Mail or Federal Express, return receipt requested, postage prepaid, addressed to the respective addresses set forth hereinabove (for VNI, ATTN: Sales Manager) or as otherwise specified by the receiving party. Notices shall be deemed effective upon receipt. This Agreement shall be exclusively governed by and construed and enforced in accordance with the laws of the United States of America (for agreements with the U.S. government and claims relating to copyright and federal trademark issues) or by the laws of the State of Colorado, U.S.A. (for contract and other matters), all without regard to conflicts of law provisions. The UN Convention for the International Sale of Commercial Goods is hereby excluded. The headings or titles of each section of this Agreement are for convenience only and shall have no legal effect. Non-enforcement of any provision hereof shall not operate as a waiver. This Agreement is the complete and exclusive statement of the agreement between VNI and Licensee and supersedes all proposals, prior agreements (oral or written) and all other communications between VNI and Licensee relating to the Software. Any purported assignment, transfer, sublicense, modification, addition or condition of acceptance (e.g. in a purchase order) of this Agreement by You is void, unless approved in advance by VNI in writing, except that You may transfer the Software and Documentation in its entirety to a successor in interest of Your entire business who assumes the obligations of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, then that provision notwithstanding, this Agreement shall remain in full force and effect and such provision shall be deemed omitted. You may not export the Software or Documentation to another country without VNI’s advance written consent. If VNI consents to Your export of the Software or Documentation, You agree to comply with all applicable export restrictions and laws.