Simpleware Ltd.: Trial/evaluation software licence agreement

SIMPLEWARE LTD, a United Kingdom Limited company with principal offices at Bradninch Hall, Castle Steet, Exeter, Devon, EX4 3PL, UK (“SIMPLEWARE”), and the Licensee hereby agree as follows:

1. Definitions

Terms used herein shall have the following definitions:

LICENSEE: The person who has requested a Trial License and accepted the responsibility for ensuring that all usage of the SIMPLEWARE Programs complies with the terms of this Software License Agreement.

SIMPLEWARE PROGRAM: The computer program(s) specified in a License Supplement and furnished by SIMPLEWARE to Licensee under the terms of this Software License Agreement, including the SIMPLEWARE documentation for such program.

LICENSE SUPPLEMENT: A supplement to this Software License Agreement specifying each SIMPLEWARE Program to be licensed hereunder, including the license type, license fees and duration. A License Supplement may modify the terms of a previous License Supplement but may not modify the terms of this Software License Agreement.

2. Delivery and Documentation

SIMPLEWARE agrees to provide executable versions of each SIMPLEWARE Program specified in a License Supplement. Licensee shall install the SIMPLEWARE Programs in accordance with documentation and materials furnished by SIMPLEWARE.

SIMPLEWARE shall provide Licensee with electronic versions of the documentation for the SIMPLEWARE Programs. Licensee may purchase printed copies of the documentation at SIMPLEWARE standard prices for such printed documentation.

3. License

SIMPLEWARE hereby grants to Licensee and Licensee accepts from SIMPLEWARE a non-exclusive, non-transferable, royalty-free license solely for evaluation purposes.

4. Restrictions on Use

Licensee agrees not to

1. modify, reverse compile, disassemble, or otherwise reverse engineer any SIMPLEWARE Program, or allow anyone else to do so (except only to the extent such prohibition is contrary to applicable law);
2. attempt to access or use portions of the SIMPLEWARE Program code for which Licensee has not acquired a license; or
3. except as specifically authorized herein, distribute or transfer the SIMPLEWARE Program.

Each SIMPLEWARE Program shall be used by the Licensee only for the purpose of evaluating suitability of the program for the Licensee's proposed applications. For the avoidance of any doubt all output generated from any SIMPLEWARE Program including models, input files, images including screenshots shall not be used for commercial or research purposes, publications, or presentations without the express written consent of SIMPLEWARE. All files provided by SIMPLEWARE and all output generated from these files shall remain the property of SIMPLEWARE and shall not be used for purposes other than internal evaluation.

Any use of any SIMPLEWARE Program for a commercial purpose or to produce meshes having commercial value, including any project or mesh of a type performed in the normal course of a business or practice, is prohibited.

Licensee shall not use any SIMPLEWARE Program for the purpose of developing products which compete with the SIMPLEWARE Programs. In no event shall Licensee make all or any part of any SIMPLEWARE Program available to any third person as part of a data services operation or application services provider or otherwise.

All use of any SIMPLEWARE Program shall be under the direct supervision and control of the Licensee. Licensee hereby asserts to be fully cognizant of the terms and conditions of this Software License Agreement, and to have the authority to exercise such supervision and control.

Each licensed SIMPLEWARE Program shall only be used at any time on a uniquely identified computer processor (node-locked license).

Licensee understands and acknowledges that it is granted only those rights set out in this Software License Agreement and License Supplement and no other rights.

5. Ownership

Licensee acknowledges and agrees that neither this Software License Agreement nor any License Supplement grants Licensee any title or rights of ownership in any SIMPLEWARE Program or any right to use, copy, transfer or disclose all or any portion of any SIMPLEWARE Program except as expressly provided in this Software License Agreement and the applicable License Supplement.

All right, title, and interest in any SIMPLEWARE Program and in any ideas and know-how which are developed by SIMPLEWARE in the course of providing any technical services, including any enhancements or modifications made to a SIMPLEWARE Program, shall at all time remain the property of SIMPLEWARE. Licensee acknowledges and agrees that the SIMPLEWARE Program is licensed, not sold.

6. Duration

The license granted under this Software License Agreement shall commence for each SIMPLEWARE Program on the date that the license key for that SIMPLEWARE Program has been sent to the Licensee.

Unless earlier terminated as provided in Section 12 (Termination), the license as to any SIMPLEWARE Program licensed on a periodic basis shall continue until the end of the initial license period specified in a License Supplement. If no license period is specified in a License Supplement, the license shall terminate thirty (30) days from receipt of the License Key, at which time the Licensee must return or delete all copies of that SIMPLEWARE Program.

7. Charges and Payment

SIMPLEWARE will provide Licensee trial license free of all charges and fees for the period specified in a License Supplement.

SIMPLEWARE reserves the right to change its prices, including license fees, without notice.

8. Maintenance, Enhancement and Support

Support for the duration of the trial license will be provided at SIMPLEWARE's sole discretion and may be conditioned upon payment of additional fees.

9. Non-Disclosure

For a period of ten (10) years from the last date that SIMPLEWARE delivers to Licensee any SIMPLEWARE Program or any update or improvement thereto, Licensee shall

1. keep confidential and utilize its best efforts to prevent unauthorized disclosure or use of any SIMPLEWARE Program, and
2. treat all SIMPLEWARE Programs with the same degree of care as it treats like information of its own which it does not want to be publicly disclosed or the subject of unauthorized access or use, and
3. not make or permit to be made any more copies of any SIMPLEWARE Program than are necessary for the Licensee's internal use of that SIMPLEWARE Program.

The obligations in this Section shall not extend to any part of any SIMPLEWARE Program which is now or hereafter publicly known by virtue of disclosures not attributable to Licensee, its agents, employees, consultants, contractors, or any other person or entity under similar restriction not to make such disclosures.

10. Warranty

There is no express warranty provided for trial license.

11. Limitation of Liability

Licensee expressly acknowledges that:

1. SIMPLEWARE shall not be liable for loss of profit, loss of business, or other financial loss which may be caused, directly or indirectly, by the inadequacy of any SIMPLEWARE Program for any purpose or use thereof or by any defect or deficiency therein.
2. SIMPLEWARE shall not have any liability with respect to any loss or damage related to or arising from:
   1. any failure of any SIMPLEWARE Program to perform as specified herein except as and to the extent otherwise expressly provided herein; or
   2. any use or application of any SIMPLEWARE Program or the results or decisions made or obtained by users of the SIMPLEWARE program.
3. The total of SIMPLEWARE's liabilities to Licensee for damages, if any, shall not exceed the amounts paid by Licensee under this Software License Agreement during the twelve (12) months preceding the assertion of Licensee's claim.
4. No action, regardless of form, arising out of any transaction under this Software License Agreement may be brought by Licensee more than one year after the Licensee has, or by the exercise of reasonable diligence should have had, knowledge of the occurrence which gives rise to such action.

12. Termination

Trial/Evaluation Licenses will terminate automatically on the expiration date if not renewed pursuant to the terms of the License as further defined in Section 6 (Duration) above.

1. SIMPLEWARE shall have the right without further obligation or liability to Licensee to terminate this Software License Agreement and Licensee's license hereunder as to any SIMPLEWARE Program.
2. The following obligations shall survive termination of the Software License Agreement for any reason: (i) Licensee's obligations under Sections 9 (Non-Disclosure); and (ii) Paragraph (c) of this Section. Termination of this Software License Agreement will not relieve either
3. Upon the termination of this Software License Agreement as to any SIMPLEWARE Program, the license and all other rights granted to Licensee as to that SIMPLEWARE Program hereunder shall immediately cease, and Licensee shall immediately:
   1. return that SIMPLEWARE Program to SIMPLEWARE including all documentation, manuals and copies in respect of that SIMPLEWARE Program;
   2. purge all copies of that SIMPLEWARE Program and any portions thereof from all CPU's and storage media and devices on which Licensee has placed or allowed others to place that SIMPLEWARE Program; and
   3. upon request provide SIMPLEWARE with written certification that Licensee has complied with its obligations under this Paragraph 12(c).

13. General Provisions

1. Licensee shall not have the right to assign or otherwise transfer its rights or obligations under this Software License Agreement except with the written consent of the other party.
2. This Software License Agreement and any License Supplement shall be governed by and construed in accordance with the laws of England & Wales and the parties agree to submit to the exclusive jurisdiction of the English courts, and shall not be governed by the United Nations Convention on the International Sale of Goods.
3. This Software License Agreement supersedes all proposals, oral or written, and all negotiations, conversations or discussions heretofore had between the parties related to this Software License Agreement. Licensee acknowledges that it has not been induced to enter into this Software License Agreement by any representations or statements, oral or written, not expressly contained herein. The terms and conditions of this Software License Agreement shall prevail, notwithstanding any variance with the terms and conditions of any order or other instrument submitted by Licensee.
4. This Software License Agreement supersedes any and all other Software License Agreements between the parties governing SIMPLEWARE Programs.
5. This Software License Agreement shall not be deemed or construed to be modified, amended, rescinded, cancelled or waived, in whole or in part, except by written amendment signed by the parties hereto.
6. The obligations of Licensee under Sections 4 (Restrictions on Use) and 9 (Non-Disclosure) hereof are of a special and unique character which gives them a peculiar value to SIMPLEWARE for which SIMPLEWARE cannot be reasonably or adequately compensated in damages in the event Licensee breaches such obligations. Therefore SIMPLEWARE shall, in addition to other remedies which may be available, be entitled to injunctive and other equitable relief in the event of the breach or threatened breach of such obligations.