Heiki at 07:30, 19 October 2007

2007-10-19T07:30:40Z

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COMSOL AB Software License Agreement

CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS ("TERMS") BEFORE INSTALLING
OR USING THE PROGRAMS OR DOCUMENTATION. INSTALLING OR USING THE PROGRAMS
MEANS YOU HAVE ACCEPTED THE TERMS. IF YOU DO NOT ACCEPT THEM, RETURN THE
PROGRAMS AND RELATED MATERIAL UNUSED TO YOUR VENDOR FOR A REFUND.

1. License Grant. During the term of this License Agreement ("Agreement"),
COMSOL ("we", "us", "our") grants to licensee ("you", "your") a
non-exclusive, non-transferable, limited license to install, run, use,
operate and perform (collectively "use") the COMSOL software ("Programs")
and documentation therefor ("Documentation") as provided herein.

(a) Programs. You may license a named single user license ("NSL"), a
CPU-locked single user license ("CPU"), or a floating network license
version ("FNL") of the Programs under this Agreement, and your license
rights are for the number of users set forth on the purchase order or
invoice we accept.

(b) Object Code. The license granted herein applies only to the object
code version of the Programs. Licensee shall have no rights whatsoever with
respect to the source code for the Programs.

(c) Ownership. All right, title and interest in and to the licensed
Programs, including without limitation, copyrights and trade secrets, are,
and shall at all times remain, the exclusive property of us and/or our
licensors, and you shall have no right, therein, except the expressly
limited license rights granted herein.

(d) Non-transferable. You may not sell, license, sublicense, rent, or
distribute any Program, or make it available for use on a "time sharing"
basis. You may transfer your rights hereunder only in accordance with
Section 15.

(e) Reservation Of Rights. You acknowledge that all rights with respect to
the licensed Programs, whether now or hereafter existing, which are not
expressly granted to you are reserved to us or our licensors. You shall not
modify or create any derivative, compilation, or collective work involving
the Programs. You shall take appropriate action by instruction, agreement,
or otherwise with any persons permitted access to the Programs, so as to
enable you to satisfy all your obligations under the Terms.

(f) License Subject To Payment. The license granted herein is contingent
upon your timely and complete payment of all amounts due and payable to us.
If you fail to pay any amount when due, we may terminate your license
rights effective immediately.

(g) Use.

(i) If you have licensed the NSL version of the Programs, a single
named individual may use at most one concurrent session of a Program.
You may replace the named user for the license, on a temporary or
permanent basis but no more than four (4) times a year, provided that
only one licensed user is designated as the named user at any given
time. The NSL version of the Programs may not be accessed or used over
a network.

(ii) If you have licensed the CPU version, a single individual may use
one concurrent session of a Program on a single designated computer at
any given time. The CPU version of the Programs may not be accessed or
used over a network.

(iii) If you have licensed the FNL version, you may have as many
sessions of a Program in use at any given time as you have licensed
concurrent users. If the Programs have the ability to run as client
and server on separate computers, only the FNL version gives you the
right to use the Programs as client and server on separate computers.

(iv) If the NSL, CPU, and/or FNL versions of the Programs or the Class
Kit Option has been licensed by an Institution at Academic Prices (as
such terms are defined in the Academic Addendum to this Agreement),
your use of such Programs will be subject to the additional terms in
the applicable Addendum to this Agreement.

(v) Regardless of which license you have, you shall use the Programs
only for your internal operations. For the purposes of this Agreement,
"internal operations" means use of the Programs by your employees or
those of your subsidiaries or parent company and for the performance of
consulting or research for third parties who engage you as an employee
or independent contractor. You also shall not disclose any
characteristics or technical capabilities of the Programs to any third
party without our prior written authorization.

(h) No Reverse Engineering. You shall not decompile, reverse engineer,
disassemble, isolate, separate, or otherwise attempt to derive source code
from any Program(s) or Documentation, except and only to the extent that
such activity is expressly permitted by applicable law notwithstanding this
limitation. All copies of Programs and Documentation shall contain all
copyright and proprietary notices as in the original. You shall not remove,
obscure, or alter copyright notices, trademark notices, or other
proprietary rights notices affixed to or contained within the licensed
Programs or Documentation. If you are a licensee in the European Union:

European Union: You may decompile, disassemble or otherwise reverse
engineer the Programs only where any such act is necessary to create an
independent program which is interoperable with the Programs or with
another program or to observe, study, or test the functioning of the
Programs solely to understand the ideas and principles which underlie any
element of the Programs ("Permitted Objective") and provided that:

(i) the information necessary to achieve the Permitted Objective has
not already been made available or has not been provided by us within a
reasonable time after a written request to provide such information;

(ii) the compilation, disassembly, reverse-engineering, etc., is
confined to those parts of the Programs necessary to achieve the
Permitted Objective;

(iii) the information gained is not used or anything other than the
Permitted Objective and is not disclosed to any other person except as
may be necessary to achieve the Permitted Objective; and

(iv) the information obtained is not used to create a program(s)
substantially similar in its expression to any Program(s), including,
but not limited to, expressions of the Programs in other computer
languages, or for any other act restricted by copyright in the
Programs.

(i) U.S. Government. If you are acquiring this license to the Programs on
behalf of any unit or agency of the U.S. Government, the Government shall
only have "restricted rights". In particular, for units of the Department
of Defense: the Government shall have only the rights specified in the
license under which the commercial computer software or commercial software
documentation was obtained, as set forth in subparagraph (a) of the Rights
in Commercial Computer Software or Commercial Software Documentation Clause
at DFARS 227.7202-3, therefore the rights set forth herein shall apply.
For any other Government unit or agency, the rights of the Government
regarding use, reproduction, and disclosure are as set forth in Clause
52.227-19 (c)(2)of the FAR.

(j) License For Third Party Software. We have been granted licenses to
distribute certain third party software. As a condition of those licenses,
we are required to distribute the software subject to specific terms and
conditions, which may be different from or additional to those contained
herein for the Programs. The Terms include the restrictions on use of such
third party software. The current applicable provisions of such third party
software are available in the about.txt file in the COMSOL installation
directory and in the directories under java in the COMSOL installation
directory. You may also contact us to obtain the current applicable
provisions. PLEASE NOTE: Your breach of any applicable term or condition of
any third party license, even if such term or condition is not stated
expressly in the Terms, shall also be considered a material breach of this
Agreement.

(k) No Commercial/Production Use for Trial Version. If you have
been granted license to a trial version of any Program, i.e., to
test the Program without any payment obligation, you may not use
the Program for any commercial or production use, i.e., you may
only use the Program for experimental and trial use.

(l) Protection and Confidentiality. You acknowledge that the Programs
contain trade secrets and other valuable and confidential information of us
and our licensors, and you shall not act, or fail to act, in any way or
manner to intentionally or negligently harm our or our licensors' rights in
our or their respective intellectual property in the Programs and
Documentation. The Programs and Documentation, together with any other
information learned in connection therewith that should reasonably be
considered confidential under the circumstances, are "Confidential
Information". You shall disclose Confidential Information only on a
need-to-know basis to your employees; you may not disclose any Confidential
Information to a third party; and you shall use all reasonable care to keep
the Confidential Information confidential consistent with the grant of your
licensed rights.

(m) Exceptions to Confidentiality. The above confidentiality obligation
shall not apply to Confidential Information which (i) was in your
possession before you received it; (ii) is or becomes publicly available
through no fault of yours; (iii) is independently developed by you without
reliance on the Confidential Information; or (iv) is received by you from a
third party with no duty of confidentiality to us.

2. License Term. Unless terminated earlier according to the Terms, this
Agreement shall continue annually, for a term, or perpetually, as
identified in the purchase order accepted by us or our invoice. Annual
licenses will end after a year, unless the then-current annual license fee
has been previously remitted to us and you have received new annual
passcodes. Term licenses will end after their term, unless the
then-current term license fee has been previously remitted to us and you
have received new term pass codes. You shall have the right to use
Programs licensed under a perpetual license indefinitely, subject to the
termination provisions of this Agreement.

3. Delivery, Installation, and Use.

(i) We may deliver the Programs and Documentation to you in archival form
on CD-ROM or over the Internet with a passcode which specifies the licensed
Programs. You shall be responsible for all use of your passcode,
authorized or not, and you shall not disclose the archive passcode or allow
it to be used except for installation of the Programs.

(ii) If you have licensed the NSL version of the Programs, they may be
installed and operated on one or more individual computers,
provided the Programs are only accessible to, and operated by, a single
licensed user designated by us as the "Named User" for that license. You
may replace the named user for the license, on a temporary or permanent
basis but no more than four (4) times a year, provided that only one
licensed user is designated as the named user at any given time. The
NSL version of the Programs may not be accessed or used over a network.

(iii) If you have licensed the CPU version of the Programs, a single
individual may use one concurrent session of a Program on a single
designated computer at any given time. The CPU version of the Programs
may not be accessed or used over a network.

(iv) If you have licensed the FNL version of the Programs, they may be
installed in a central location on a single dedicated network server. You
may have as many sessions of a Program in use at any given time as you have
licensed concurrent users. If the Programs have the ability to run as
client and server on separate computers, only the FNL version gives you the
right to use the Programs as client and server on separate computers.
Portions of the Programs may be installed on individual computers, as long
as the individual installations are controlled by the license manager on
the network server. You may not provide access to the FNL version of the
Programs to users located outside the country in which the license manager
server is installed unless you have contracted for global use. For the
purposes of this Agreement, all servers located in a member country of the
North American Free Trade Agreement ("NAFTA") shall be considered located
in the same country as those of the other NAFTA members, and all servers
located in Iceland, Norway, Switzerland, or any member country of the
European Union shall be considered located in the same country.

(v) You may make a backup copy of the Programs and Documentation as
reasonably necessary to support the use of the Programs in accordance with
this Agreement.

(vi) Regardless of which license you have, you may use the Programs only
for your internal operations. For the purposes of this Agreement,
"internal operations" means use of the Programs by your employees or those
of your subsidiaries or parent company and for the performance of
consulting or research for third parties who engage you as an employee or
independent contractor.

4. Payment. You shall pay us the license fee in accordance with our then
current price. You may receive a full refund if you terminate this
Agreement within thirty (30) days of the date of delivery of the Programs
(the "Acceptance Period").

5. Compliance with Export Laws. The Programs are subject to U.S. and United
Kingdom export control laws or other (U.S., U.K., and non-U.S.)
governmental export and import laws and regulations ("Export
Laws"). Notwithstanding any other term of this Agreement or any other
agreement, neither you nor any third party may exercise any of your rights
under this Agreement in violation of any Export Law, nor may this Agreement
be transferred to any party where doing so would result in such a
violation. The terms of any limitation on the use, transfer or re-export
of the Programs imposed by us in any document for the purpose of export
control shall prevail over any term in this Agreement, but it shall be your
responsibility to comply with the latest Export Law.

6. Maintenance and Support. Software maintenance service will terminate upon
expiration of the initial software maintenance service term of twelve (12)
months, which is included with the purchase of each license. Maintenance
includes: (a) technical support by telephone, telefax or electronic mail
regarding the installation and/or use of the licensed Programs and their
interaction with hardware, operating environments, and other software
products; (b) subsequent releases of the Programs free of charge; and (c)
reasonable commercial efforts to (i) provide workarounds within a
reasonable time for any material programming errors in the current release
of the Programs which are directly attributable to us, and (ii) correction
of such errors in the next available release, provided you provide us with
sufficient information to identify such errors. Maintenance services may
be renewed, at the then-current price, as long as we offer such services.
We may, in our sole discretion, discontinue maintenance and support
subscriptions.

7. LIMITED WARRANTY.

(a) We warrant: (i) that we or our licensors have the right to grant the
license rights hereunder; and (ii) that for a period of ninety (90) days
from delivery ("Warranty Period") the licensed Programs shall conform in
all material respects to their functional specifications in the
Documentation.

(b) If a Program does not operate as warranted and you notify us within the
Warranty Period, your exclusive remedy and our sole liability shall be (i)
the correction or workaround of major defects within a reasonable time, or
(ii) if such correction or workaround prove neither satisfactory nor
practical, termination of the relevant license and refund of the initial
license fee paid to us for the Programs.

(c) All requests for warranty assistance should be directed to COMSOL AB,
Tegnérgatan 23, SE-111 40 STOCKHOLM, Sweden.

(d)EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE PROGRAMS AND DOCUMENTATION ARE
PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY,
NON-INFRINGEMENT, DESIGN, OPERATION, AND FITNESS FOR A PARTICULAR PURPOSE,
AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAMS IS
WITH YOU. NEITHER WE NOR OUR LICENSORS WARRANT THAT THE PROGRAMS WILL BE
ERROR-FREE, UNINTERRUPTED, VIRUS-FREE, SECURE, SUITABLE FOR YOUR NEEDS,
PRODUCE SPECIFIC RESULTS, OR THAT ERRORS OR FAILURES WILL BE CORRECTED.
YOU ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES OR PROMISE OTHER THAN
THE EXPRESS WARRANTIES HEREIN.

8. Limitation Of Liability. OUR SOLE LIABILITY OR OBLIGATION UNDER THIS
AGREEMENT IS THE REPLACEMENT OF DEFECTIVE MEDIA ACCORDING TO THE LIMITED
WARRANTY ABOVE. IN NO EVENT SHALL WE OR OUR LICENSORS BE LIABLE TO YOU FOR
ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES,
INCLUDING WITHOUT LIMITATION, THIRD PARTY CLAIMS AND LOSS OF PROFITS, DATA,
OR ANY OTHER LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, E.G., WE ARE UNABLE TO REMEDY ANY DEFECT IN THE PROGRAMS. IN ANY
EVENT, OUR AND THEIR MAXIMUM LOSS, REGARDLESS OF ANY ACT OR OMISSION OF
OURS OR ANYONE UNDER OUR DIRECTION OR CONTROL, SHALL NOT IN TOTAL EXCEED
THE AGGREGATE AMOUNT PAID TO US IN THE SIX-MONTH PERIOD PRECEDING YOUR
CLAIM(S), AND FOR SUCH PURPOSES, ALL CLAIMS SHALL BE AGGREGATED. The
remedies against us and our licensors expressly provided herein are
exclusive and are in lieu of any other remedies at law or in equity.

9. Indemnification. You shall indemnify and hold us, our licensors, and
anyone under our or their direction and control, including without
limitation, individuals and affiliates, harmless from and against any loss,
liability, cost, expense or damage resulting from or arising out of any
claim, suit action or judgment related to any use of the Programs and any
act or omission of yours, including without limitation, a violation of any
third party rights.

10. Third Parties. You shall notify us of third parties (and give their
respective names, addresses, and contact information) that have access to
or use the licensed Programs on your behalf. This provision shall not limit
your other obligations hereunder.

11. Prevailing Party. If any legal action or other proceeding is brought for
any breach of this Agreement, the prevailing party shall be entitled to
recover its reasonable attorneys' fees and other costs incurred in bringing
such action or proceeding, in addition to any other relief to which such
party may be entitled.

12. Taxes. You shall be liable for any taxes (except those on our net income)
due in connection with this Agreement.

13. Termination. We may terminate this Agreement by written notice to you if
you breach any Term and have not cured such breach within sixty (60) days
(within fifteen (15) days if the breach is for non-payment) thereafter.
You may terminate this Agreement at any time for any reason, but you shall
not be entitled to any refund except for license fees paid for any Programs
for which the Acceptance Period has not expired at the time we receive your
notice of termination.

14. Effect Of Termination. Immediately upon termination of this Agreement for
any reason, (a) your rights shall cease and all rights granted herein shall
automatically revert to us; (b) you shall stop using the Programs and
Documentation; (c) you shall erase all copies of licensed Programs from
your computers and deliver to us all tangible copies of the Programs and
Documentation; (d) you shall pay all amounts due us; and (e) you shall take
such acts and execute all documents we reasonably request to register or
effect the termination. Within five (5) business days of the termination,
you shall provide us with a written declaration signed under penalty of
perjury by you attesting to compliance with the provisions of subsections
(b), (c) and (d) above. Expiration or termination of this Agreement shall
not relieve a party of obligations accrued before such event. In addition,
Sections 1(c), 1(l), 5, 8, 9, 11, 12, 14, and 17 shall survive termination
or expiration of this Agreement.

15. Assignment and Transfer. Unless you provide us with the identity and
contact information of any prospective assignee or transferee of your
rights and obligations hereunder and such transferee or assignee is
acceptable to us, you may not assign or otherwise transfer this Agreement
and its rights and obligations, in whole or in part, by operation of law or
otherwise. In the case of any permitted assignment or transfer of or under
this Agreement, this Agreement or the relevant provisions shall be binding
upon, and inure to the benefit of, the successors, executors, heirs,
representatives, administrators and assigns of the parties hereto. We may
charge you an administrative fee for any permitted assignment.

16. Revised Terms of Use. We may revise the terms of use of the Programs from
time to time. Revisions are effective upon receipt of notice from us.

17. Miscellaneous. You shall not grant any ownership right or security
interest in the Programs to any person. You shall comply with all laws
applicable to you in the jurisdiction in which you use the Programs. A
breach of any provision of this Agreement may only be waived in writing and
the waiver of such breach shall not operate or be construed as a waiver of
any subsequent breach. If any Term should, for any reason, be held invalid
or unenforceable in any respect, the remainder of this Agreement shall be
enforced to the full extent permitted by law. A court of competent
jurisdiction is hereby empowered to modify the invalid or unenforceable
provision to make it valid and enforceable. This Agreement and the
applicable Addenda hereto (if relevant) contain the entire understanding of
the parties, and, except as provided herein, may not be changed except in a
writing signed by your and us. This Agreement shall be governed by the
laws of Massachusetts, without regard to its conflict of laws, the
U.N. Convention on Contracts for the International Sale of Goods, and any
version of the Uniform Computer Information Transactions Act ("UCITA")
adopted by any state, and to the extent UCITA is applicable, the parties
agree to opt out of its applicability pursuant to the opt-out provisions
contained therein. The parties consent to the exclusive personal
jurisdiction of the state and federal courts in the Commonwealth of
Massachusetts if there is any dispute between them. You may not bring any
action against us or our licensors more than two (2) years after the cause
of action accrued.

ACADEMIC ADDENDUM

Programs licensed to degree-granting educational institutions ("Institutions")
at our educational discount are subject to separate license provisions and are
further restricted to use in connection with on-campus computing facilities
that are used solely in support of classroom instruction and research
activities of students and faculty. The right to use the Programs licensed at
Academic Prices for commercial purposes is expressly prohibited.

This is an Addendum to the COMSOL AB Software License Agreement (the
"Agreement"), and the terms and conditions of this Addendum are incorporated
therein. Each capitalized term used but not defined herein shall have the
meaning ascribed to it in the Agreement.

1. General Scope. In addition to the terms in the Agreement, the provisions
of this Academic Addendum apply to each Program licensed under the
Agreement at prices offered only Institutions ("Academic Prices") for NSL,
CPU, and FNL versions of the Programs, and for the Class Kit Option, as
defined below. A License purchased at Academic Prices gives the Licensee
the right to use the software in Academic research as well as teaching at
the licensed Institution. Moreover, a student working on a thesis or a
diploma has the right to use a License purchased at Academic Prices outside
the Institution as long as the usage is restricted to the thesis or the
diploma work. If there is a conflict between the terms in this Addendum and
the Agreement, the Addendum provisions shall control.

2. Class Kit Option. If an Institution acquires and pays for the Class Kit
Option license, it may use the CPU and/or FNL version of the Programs, as
approved by us on the purchase order or invoice we accept.

3. Definitions.

3.1. Academic Internal Operations. The Class Kit Option version of the
Programs may be installed and used by up to 30 students and two teaching
assistants for the purpose of teaching in an ordinary course, provided the
Programs are used in classrooms for instructional purposes only by enrolled
students meeting classroom requirements for courses and study offered by
the Institution. Students may use the Class Kit Option Programs for
homework use, and two teaching assistants may use the Programs for the
purpose of lesson preparation. All non-classroom use is limited to a
single designated individually-owned computer for each such student or
teaching assistant during the period of the academic year when the
applicable class is in session and solely for class and instructional
purposes. When a student is not enrolled in the applicable class or the
class ends, the student must remove all copies of the Programs from his or
her computer. Any other use is expressly prohibited.

3.2. Licensed Users. All enrolled students and employees (faculty and
academic staff) of an Institution who are authorized to use the Programs
for Academic Internal Operations in accordance with the Agreement and the
applicable Addenda.

3.3. Class Kit Option. The specific rights, restrictions, and obligations
under which an Institution may install and use Programs pursuant to the
Agreement and this Academic Addendum for the Class Kit Option.

4. Installation and Use.

4.1 NSL, CPU, and FNL. The right to install and use the NSL, CPU, and FNL
version of the Programs if bought at Academic Prices is the same as in
Section 1(g) and Section 3 of the Agreement, except that the FNL version
may only be used on a network that is restricted to solely on-campus use.

4.2 Class Kit Limited Rights. Specific rights, obligations, and
restrictions apply to the Class Kit Option. By selecting the Class Kit
Option, the Institution and any users of the Class Kit Option agree to the
terms of the Agreement and this Academic Addendum for use of the Class Kit
Option for Academic Internal Operations.

4.3 Restricted Versions. The Class Kit Option is restricted to the CPU and
FNL versions of the Programs only. The Institution is responsible for
ensuring that the total number of students for each Program in the Class
Kit Option does not exceed 30 and the number of teaching assistants does
not exceed two (2). The Institution shall also be responsible for, and
shall assign a central administrator the task of, accurately counting,
controlling, and administering the use of the Class Kit Option, including
without limitation, restricting its use to on-campus computing facilities
and limiting its use to comply with Academic Internal Operations.

4.4 Support. Support requests shall be made by the teaching
assistants or the central administrator of the Class Kit Option.

Comsoli-litsents - Revision history

Heiki at 07:30, 19 October 2007