This HYDROSOFT INTERNATIONAL
End-User Software License Agreement ("EUSLA") is a legal agreement between
you, either an individual or a single entity, ("Licensee") and
HYDROSOFT INTERNATIONAL (“HYDROSOFT INTERNATIONAL”,
a. PRODUCT means all components of 2D & 3D finite element software packages supplied by HYDROSOFT INTERNATIONAL including, but not limited to, the Copy Protection Plug, computer software, online electronic documentation, HTML files, help text, and PDF files, and may include associated media or printed materials.
b. LICENSE means the rights to use the PRODUCT on a single computer running one of the following operating systems, Windows 95, Windows 98, Windows NT, Windows XP, LINUX, or UNIX.
c. COPY PROTECTION PLUG means the copy protection dongel .
d. EFFECTIVE DATE means the date that the PRODUCT was delivered to the Licensee, where the delivery consists of a COPY PROTECTION PLUG and WEB link (URL) from which the Licensee may download the PRODUCT.
e. TERM means the period of time HYDROSOFT INTERNATIONAL grants the LICENSE to the Licensee under the terms and conditions of this EUSLA and is defined by the Perpetual type LICENSE.
f. PERPETUAL LICENSE has an unlimited LICENSE TERM, unless the EUSLA has been terminated earlier.
g. MAINTENANCE means the Licensee's right to receive product and security updates, patches, product upgrades and technical support.
h. ANNUAL MAINTENANCE FEE means the fee paid by the Licensee to HYDROSOFT INTERNATIONAL for the right to receive one (1) year of MAINTENANCE.
i. PUBLIC DOMIAN means 1) publicly available technology and software, technology and software that are already published (EAR Part 772 - Definitions of Terms). 2) Information is "published" when it becomes generally accessible to the interested public in any form (ERA Part 734.3(b)(3)).
j. SOURCE means the fortran source code.
2. PRODUCT BASIS
The basis for the PRODUCT is software developed at the Lawrence Livermore National Laboratory (“LLNL”) and released into the PUBLIC DOMIAN under these LLNL transaction release numbers:
MAZE #4351 INGRID #5786
DYNA2D #3564 DYNA3D #2586
NIKE2D #3384 NIKE3D #3811
TOPAZ2D #6006 TOPAZ3D #6086
ORION #4650 TAURUS #4910
DIGLIB #4772 2DJET #6381
3. RIGHTS AND LIMITATIONS.
a. Subject to the terms and condition of this EUSLA, HYDROSOFT INTERNATIONAL grants the Licensee a non-exclusive, non-assignable LICENSE to use the PRODUCT from the EFFECTIVE DATE and for the duration of the TERM.
b. The PRODUCT may only be installed on computers that are used solely for the Licensee's own personal or internal business. This EUSLA does not grant any rights to use or install the PRODUCT on computers used primarily to service or to benefit persons not having either an employment or contractual business relationship with the Licensee, such as a WEB server servicing the public.
c. Notwithstanding anything else contained in this EUSLA, HYDROSOFT INTERNATIONAL retains (i) all title to, and, except as expressly and unambiguously licensed herein, all rights to the PRODUCT, and all related documentation and materials, (ii) all of their service marks, trademarks, trade names or any other designations and (iii) all copyrights, patent rights, trade secret rights and other proprietary rights in the PRODUCT.
d. The initial purchase of a PERPETUAL LICENSE includes MAINTENANCE until the first (1st) year anniversary from the EFFECTIVE DATE. Thereafter, the Licensee must pay the then CURRENT ANNUAL MAINTENANCE FEE for continuation of PRODUCT MAINTENANCE.
e. The Licensee does not have any rights to use the PRODUCT on any operating system other than those explicitly sited in Section 1(b).
f. The Licensee may not redistribute the SOURCE.
4. LICENSEE'S OBLIGATIONS.
Except as expressly and unambiguously provided herein and as conditions of the Licensee's LICENSE hereunder, the Licensee represents, warrants and agrees:
a. Not to reverse assemble, de-compile, or otherwise attempt to derive source code (or the underlying ideas, algorithms, structure or organization) from the PRODUCT or from any other information, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
b. To keep all copies of the PRODUCT in the possession of the Licensee.
c. Not to sell, give, lend, give access to, or otherwise transfer the PRODUCT, or copies of the PRODUCT to anyone that is not an employee or consultant of the Licensee, or to anyone that is not bound to all of the terms and conditions of this EUSLA.
d. Not to use the PRODUCT for timesharing, outsourcing, hosting, or service bureau purposes or otherwise allow others, or third parties benefit from the use of the PRODUCT.
e. Not to remove from any copies of the PRODUCT any product identification, copyright or other notices.
f. Not to modify, incorporate into or with other software, or create a derivative work of any part of the PRODUCT.
g. Not to disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the PRODUCT.
a. Without prejudice to any other rights, HYDROSOFT INTERNATIONAL may immediately terminate the LICENSE if the Licensee fails to comply with all of the terms and conditions of this EUSLA. In such an event, the Licensee must destroy all copies of the PRODUCT and all of its component parts.
b. All of the terms and conditions of this EUSLA shall survive termination with the exception of the LICENSE as defined in Sections 1(b) and Sections 2(a) and 2(d). Termination is not an exclusive remedy and all other remedies will be available to Licensor whether or not the LICENSE is terminated.
6. GOVERNING LAW.
This EUSLA shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States, without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The sole jurisdiction and venue for any dispute regarding the terms of this EUSLA or any action relating to the subject matter hereof shall be the Superior Court of Alameda County, California and the U.S. District Court for the District of California. The prevailing party in any action to enforce this EUSLA shall be entitled to recover reasonable costs and expenses, including, without limitation, reasonable attorneys' fees.
7. EXPORT LIMITATIONS.
The Licensee shall comply with all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority. The Licensee agree not to export or re-export, or allow the export or re-export of any product, technology, or information the Licensee obtains or learns under this EUSLA (or any direct product thereof) from the country in which the Licensee has installed and is using the PRODUCT in violation of any such laws, restrictions, or regulations. The PRODUCT is a "commercial item," "commercial computer software," and/or "commercial computer software documentation" as defined under U.S. law in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(1), or otherwise. Consistent with DFAR section 227.7202 and FAR Section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the PRODUCT by the U.S. government shall be governed solely by the terms of this EUSLA and shall be prohibited except to the extent expressly permitted in this EUSLA.
8. LIMITED WARRANTY AND DISCLAIMER.
HYDROSOFT INTERNATIONAL WARRANTS THAT FOR A PERIOD OF NINTY (90) DAYS FOLLOWING THE EFFECTIVE DATE THE PRODUCT WILL MATERIALLY CONFORM TO HYDROSOFT INTERNATIONAL'S THEN CURRENT OPERATIONAL SPECIFICATIONS. THE FOREGOING WARRANTIES COVER ONLY PROBLEMS REPORTED TO HYDROSOFT INTERNATIONAL DURING THE WARRANTY PERIOD. ANY LIABILITY OF HYDROSOFT INTERNATIONAL WITH RESPECT TO THE SOFTWARE OR THE PERFORMANCE THEREOF OR DEFECTS THEREIN UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE LIMITED EXCLUSIVELY TO PRODUCT REPLACEMENT OR, IF HYDROSOFT INTERNATIONAL DETERMINES, IN ITS SOLE DISCRETION, THAT REPLACEMENT IS INADEQUATE AS A REMEDY OR IMPRACTICAL, TO REFUND OF THE LICENSE FEES PAID BY THE LICENSEE AND TERMINATION OF THE LICENSE. EXCEPT FOR THE FOREGOING, THE PRODUCT AND HYDROSOFT INTERNATIONAL PROPRIETARY MATERIALS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER, HYDROSOFT INTERNATIONAL DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS THAT THE SOFTWARE WILL BE FREE FROM BUGS, THAT ITS USE WILL BE UNINTERRUPTED, OR REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE OR OTHER HYDROSOFT INTERNATIONAL PROPRIETARY MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. THE LICENSEE UNDERSTANDS THAT HYDROSOFT INTERNATIONAL IS NOT RESPONSIBLE, AND WILL HAVE NO LIABILITY, FOR HARDWARE, SOFTWARE, OR OTHER ITEMS OR ANY SERVICES PROVIDED BY ANY PERSON OTHER THAN HYDROSOFT INTERNATIONAL.
9. NO WARRANTIES.
To the maximum extent permitted by applicable law, HYDROSOFT INTERNATIONAL, its suppliers, distributors and resellers disclaim all other warranties, either express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, with regard to the PRODUCT.
10. NO LIABILITY FOR CONSEQUENTIAL DAMAGES.
To the maximum extent permitted by applicable law, in no event shall HYDROSOFT INTERNATIONAL or its suppliers, distributors and resellers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use the PRODUCT, even if HYDROSOFT INTERNATIONAL has been advised of the possibility of such damages. Because some states and jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to the Licensee.
11. CUSTOMER REMEDIES.
HYDROSOFT INTERNATIONAL's entire liability and the Licensee's exclusive remedy shall not exceed the LICENSE fees paid for the PRODUCT.