Altair Engineering, Inc. – Software License Agreement (Rev. 6-2018)
EXPORT COMPLIANCE: Altair software is subject to the export rules and regulations of the US Government and other countries’ export regulations. By completing your acquisition of Altair software, you certify that you are not (1) located in a country subject to the Export Administration Regulations or U.S. laws prohibiting the transfer or disclosure of dual-use commercial software; (2) not a person who is (or otherwise affiliated with any entity that is)subject to U.S. economic sanctions programs administered by the U.S. Department of the Treasury; and (3) not located in or a resident of Cuba, Iran, North Korea, Sudan, Syria, or the disputed Ukrainian region of Crimea.”
THIS LICENSE AGREEMENT APPLIES TO SOFTWARE WHICH HAS BEEN OBTAINED VIA ELECTRONIC DOWNLOAD OR DIGITAL MEDIA. YOUR INSTALLATION AND/OR USE OF THE SOFTWARE INDICATES (I) YOUR ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS, AND (II) YOUR ABILITY TO CONTRACTUALLY BIND THE PERSON OR ENTITY ON WHOSE BEHALF YOU HAVE DONE SO. IF YOU OR YOUR EMPLOYER ALREADY HAVE A FULLY EXECUTED END USER LICENSE AGREEMENT ON FILE WITH ALTAIR ENGINEERING, INC., OR AN AUTHORIZED RESELLER, WHICH IS DATED AFTER NOV 1, 2007, THEN IN THE EVENT OF A CONFLICT BETWEEN THAT END USER LICENSE AGREEMENT AND THE TERMS AND CONDITIONS IN THIS AGREEMENT, THAT END USER LICENSE AGREEMENT SHALL TAKE PRECEDENCE OVER THE TERMS AND CONDITIONS BELOW.
THIS SOFTWARE LICENSE AGREEMENT (the “Agreement”), shall be effective as of the date the password for the Software was first provided to you (the “Effective Date”) and is between Altair Engineering, Inc., 1820 E. Big Beaver Road, Troy, MI 48083-2031, USA a Delaware corporation or its authorized reseller (“Licensor”), and you (the “Licensee”). Licensor and Licensee, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS. In addition to terms defined elsewhere in this Agreement, the following terms shall have the meanings defined below for purposes of this Agreement:
A. Documentation. Documentation provided by Licensor or its resellers on any media and including electronic download for use with the Software.
B. License Management System. The license management system (LMS) that accompanies the Software and limits its use in accordance with this Agreement.
C. License (Network) Server. A network file server that Licensee owns or leases located on Licensee’s premises and identified by machine serial number and/or HostID.
D. Licensed Workstations. Single-user computers that Licensee owns or leases that are connected to the License (Network) Server via local area network or Licensee’s private wide-area network.
E. Maintenance Release. Any release of the Software made generally available by Licensor to its Licensees with annual leases, or those with perpetual licenses who have an active maintenance agreement in effect, that corrects programming errors or makes other minor changes to the Software. The fees for maintenance and support services are included in the annual license fee but perpetual licenses require a separate fee.
F. Proprietary Rights Notices. Patent, copyright, trademark or other proprietary rights notices applied to the Software, packaging or media.
G. Software. The Licensor software and any Updates or Maintenance Releases.
H. Subsidiary. Subsidiary means any partnership, joint venture, corporation or other form of enterprise in which a party possesses, directly or indirectly, an ownership interest of fifty percent (50%) or greater, or managerial or operational control.
I. Suppliers. Any person, corporation or other legal entity which provides software or documents which are included in the Software.
J. Support. The maintenance and support services provided by Licensor pursuant to this Agreement.
K. Templates. Human readable ASCII files containing machine-interpretable commands for use with the Software.
L. Term. The term of annual lease licenses granted under this Agreement is12-months. Perpetual licenses shall have a term of twenty-five years. However passwords shall only be issued on an annual basis on the anniversary date of the license. Maintenance agreements for perpetual licenses are available on a twelve (12) month subscription basis.
M. Update. A new version of the Software made generally available by Licensor to its Licensees that includes additional features or functionalities but is substantially the same computer code as the existing Software.
2. LICENSE GRANT. Subject to the terms and conditions set forth in this Agreement, Licensor hereby grants Licensee, and Licensee hereby accepts, a limited, non-exclusive, non-transferable license to: a) install the Software on the License (Network) Server(s; b) execute the Software for Licensee’s internal business use on Licensed Workstations in accordance with the LMS for use solely by Licensee’s employees or its onsite contractors who have agreed to be bound by the terms of this Agreement; c) make backup copies of the Software, provided that Licensor’s and its Suppliers’ Proprietary Rights Notices are reproduced on each such backup copy; d) freely modify and use Templates, and create interfaces to Licensee’s proprietary software for internal use only using APIs, provided that such Licensee modifications shall not be subject to Licensor’s warranties, indemnities, support or other Licensor obligations under this Agreement; and e) copy and distribute Documentation inside Licensee’s organization exclusively for use by Licensee’s employees, and its onsite contractors who are bound by the terms of this Agreement. In the event that Licensee uses a third party vendor for information technology (IT) support, the IT company shall be permitted to access the Software only upon its agreement to abide by the terms of this Agreement. Licensee shall indemnify, defend and hold harmless Licensor for the actions of its IT vendor(s).
3. RESTRICTIONS ON USE. Notwithstanding the foregoing license grant, Licensee shall not do (or allow others to do) any of the following: a) install, use, copy, modify, merge, or transfer copies of the Software, except as expressly authorized in this Agreement; b) use any back-up copies of the Software for any purpose other than to replace the original copy provided by Licensor in the event it is destroyed or damaged; c) disassemble, decompile or “unlock”, reverse translate, reverse engineer, or in any manner decode the Software for any reason; d) sublicense, sell, lend, assign, rent, distribute, publicly display or publicly perform the Software or Licensee’s rights under this Agreement; e) allow third parties to access or use the Software such as through a service bureau, wide area network, Internet location or time-sharing arrangement except as expressly provided in Section 2(b); f) remove any Proprietary Rights Notices from the Software; g) disable or circumvent the LMS provided with the Software; or (h) link any software developed, tested or supported by Licensee or third parties to the Software (except for Licensee’s own proprietary software solely for Licensee’s internal use). The Software licensed hereunder may not be used for the design, development, production or use of nuclear, chemical or biological weapons or missiles unless Licensee has first obtained all required approvals and export licenses as may be required by the US Government.
4. OWNERSHIP AND CONFIDENTIALITY. Licensee acknowledges that all applicable rights in patents, copyrights, trademarks, service marks, and trade secrets embodied in the Software and Documentation are owned by Licensor and/or its Suppliers. Licensee further acknowledges that the Software and its Documentation, and all copies thereof, are and shall remain the sole and exclusive property of Licensor and/or its Suppliers. This Agreement is a license and not a sale of the Software or Documentation. Licensor retains all rights in the Software and Documentation not expressly granted to Licensee herein. Licensee acknowledges that the Software and Documentation are confidential and constitute valuable assets and trade secrets of Licensor and/or its Suppliers. Licensee agrees to take the same precautions necessary to protect and maintain the confidentiality of the Software and Documentation as it does to protect its own information of a confidential nature but in any event, no less than a reasonable degree of care, and shall not disclose or make them available to any person or entity except as expressly provided in this Agreement. Licensee shall promptly notify Licensor in the event any unauthorized person obtains access to the Software and/or Documentation. If Licensee is required by any governmental authority or court of law to disclose Licensor’s or its Suppliers’ confidential information, then Licensee shall immediately notify Licensor before making such disclosure so that Licensor may seek a protective order or other appropriate relief. Licensee’s obligations set forth in Section 3 and Section 4 of this Agreement shall survive termination of this Agreement for any reason. Licensor’s Suppliers, as third party beneficiaries, shall be entitled to enforce the terms of this Agreement directly against Licensee as necessary to protect Supplier’s intellectual property or other rights.
Licensor and its resellers providing support and training to licensed end users of the Software shall keep confidential all Licensee information provided to Licensor in order that Licensor may provide Support and training to Licensee. Licensee information shall be used only for the purpose of assisting Licensee in its use of the Software. Licensor agrees to take the same precautions necessary to protect and maintain the confidentiality of the Licensee information as it does to protect its own information of a confidential nature but in any event, no less than a reasonable degree of care, and shall not disclose or make them available to any person or entity except as expressly provided in this Agreement.
5. MAINTENANCE AND SUPPORT.
A. Maintenance. Licensor will provide Licensee, at no additional charge for annual licenses, and for a maintenance fee for paid-up licenses, with Maintenance Releases and Updates of the Software procured by Licensee that are generally released by Licensor during the term of the licenses granted under this Agreement, except that this shall not apply to any Term or Renewal Term for which full payment has not been received. Licensor does not promise that there will be a certain number of Updates (or any Updates) during a particular year. If there is any question or dispute as to whether a particular release is a Maintenance Release, an Update or a new product, the categorization of the release as determined by Licensor shall be final. Licensee agrees to install Maintenance Releases and Updates promptly after receipt from Licensor. Maintenance Releases and Updates are subject to this Agreement. Licensor shall only be obligated to provide support and maintenance for the most current release of the Software and the most recent prior release.
B. Support. Licensor will provide support for Software via telephone and email to Licensee during the term of the annual lease; or during the term of a maintenance agreement for perpetual licenses. If Support has not been procured for any period of time for paid-up licenses, a reinstatement fee shall apply. Support consists of responses to questions from Licensee’s personnel related to the use of the then-current and most recent prior release version of the Software. Licensee agrees to provide Licensor with sufficient information to resolve technical issues as may be reasonably requested by Licensor. Licensee agrees to the best of its abilities to read, comprehend and follow operating instructions and procedures as specified in, but not limited to, Licensor’s Documentation and other correspondence related to the Software, and to follow procedures and recommendations provided by Licensor in an effort to correct problems. Licensee also agrees to notify Licensor of a programming error, malfunction and other problems in accordance with Licensor’s then current problem reporting procedure. If Licensor believes that a problem reported by Licensee may not be due to an error in the Software, Licensor will so notify Licensee. Questions must be directed to Licensor’s specially designated telephone support numbers and email addresses. Support will also be available via email at Internet addresses designated by Licensor. Support is available Monday through Friday (excluding holidays) from 8:00 a.m. to 5:00 p.m. local time in the Global Zone where licensed.
C. Exclusions. Licensor shall have no obligation to maintain or support (a) altered, damaged or Licensee-modified Software, or any portion of the Software incorporated with or into other software not provided by Licensor; (b) any version of the Software other than the current version of the Software or the immediately prior release of the Software; (c) problems caused by Licensee’s negligence, abuse or misapplication of Software other than as specified in the Documentation, or other causes beyond the reasonable control of Licensor; or (d) Software installed on any hardware, operating system version or network environment that is not supported by Licensor. Support also excludes configuration of hardware, non-Licensor Software, and networking services; consulting services; general solution provider related services; and general computer system maintenance.
6. WARRANTY AND DISCLAIMER. Licensor warrants for a period of ninety (90) days after Licensee initially receives the Software that the Software will perform under normal use substantially as described in the current Documentation. Supplier software included in the Software provided to Licensee shall be warranted solely by the Supplier and under terms and conditions as determined by the Supplier. Copies of the Suppliers’ terms and conditions of warranty are available on the Licensor Support website or in Help or the About box of the Software. Support services shall be provided in a workmanlike and professional manner, in accordance with the prevailing standard of care for consulting support engineers at the time and place the services are performed. LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT ITSOPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL BE COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. LICENSOR EXCLUDES AND DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES NOT STATED HEREIN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE ENTIRE RISK FOR THE PERFORMANCE, NON-PERFORMANCE OR RESULTS OBTAINED FROM USE OF THE SOFTWARE RESTS WITH LICENSEE AND NOT LICENSOR. LICENSOR MAKES NO WARRANTIES WITH RESPECT TO THE ACCURACY, COMPLETENESS, FUNCTIONALITY, SAFETY, PERFORMANCE, OR ANY OTHER ASPECT OF ANY DESIGN, PROTOTYPE OR FINAL PRODUCT DEVELOPED BY LICENSEE USING THE SOFTWARE.
7. INDEMNITY. Licensor will defend and indemnify, at its expense, any claim made against Licensee based on an allegation that the Software infringes a patent or copyright (“Claim”); provided, however, that this indemnification does not include claims which are based on Supplier software, and that Licensee has not materially breached the terms of this Agreement, that Licensee notifies Licensor in writing within ten (10) days after Licensee first learns of the Claim; and that Licensee cooperates fully in the defense of the claim. Licensor shall have sole control over such defense; provided, however, that it may not enter into any settlement binding upon Licensee without Licensee’s consent, which shall not be unreasonably withheld. If a Claim is made, Licensor may modify the Software to avoid the alleged infringement, provided however, that such modifications do not materially diminish the Software’s functionality. If such modifications are not commercially reasonable or technically possible, Licensor may terminate this Agreement and refund to Licensee the prorated license fee that Licensee paid for the then current Term. Perpetual licenses shall be pro-rated over a 36-month term. Licensor shall have no obligation under this Section 7, however, if the alleged infringement arises from Licensor’s compliance with specifications or instructions prescribed by Licensee, modification of the Software by Licensee, use of the Software in combination with other software not provided by Licensor and which use is not specifically described in the Documentation, and if Licensee is not using the most current version of the Software, if such alleged infringement would not have occurred except for such exclusions listed here. This section 7 states Licensor’s entire liability to Licensee in the event a Claim is made. No indemnification is made for Supplier Software.
8. LIMITATION OF REMEDIES AND LIABILITY. Licensee’s exclusive remedy (and Licensor’s sole liability) for Software that does not meet the warranty set forth in Section 6 shall be, at Licensor’s option, either (i) to correct the nonconforming Software within a reasonable time so that it conforms to the warranty; or (ii) to terminate this Agreement and refund to Licensee the license fees that Licensee has paid for the then current Term for the nonconforming Software; provided, however that Licensee notifies Licensor of the problem in writing within the applicable Warranty Period when the problem first occurs. Any corrected Software shall be warranted in accordance with Section 6 for ninety (90) days after delivery to Licensee. The warranties hereunder are void if the Software has been improperly installed, misused, or if Licensee has violated the terms of this Agreement.
Licensor’s entire liability for all claims arising under or related in any way to this Agreement (regardless of legal theory), shall be limited to direct damages, and shall not exceed, in the aggregate for all claims, the license and maintenance fees paid under this Agreement by Licensee in the 12 months prior to the claim on a prorated basis, except for claims under Section 7. LICENSOR AND ITS SUPPLIERS SHALL NOT BE LIABLE TO LICENSEE OR ANYONE ELSE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING HEREUNDER (INCLUDING LOSS OF PROFITS OR DATA, DEFECTS IN DESIGN OR SOFTWARE CREATED USING THE SOFTWARE, OR ANY INJURY OR DAMAGE RESULTING FROM SUCH DEFECTS, SUFFERED BY LICENSEE OR ANY THIRD PARTY) EVEN IF LICENSOR OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Licensee acknowledges that it is solely responsible for the adequacy and accuracy of the input of data, including the output generated from such data, and agrees to defend, indemnify, and hold harmless Licensor and its Suppliers from any and all claims, including reasonable attorney’s fees, resulting from, or in connection with Licensee’s use of the Software. No action, regardless of form, arising out of the transactions under this Agreement may be brought by either party against the other more than two (2) years after the cause of action has accrued, except for actions related to unpaid fees.
9. UNITED STATES GOVERNMENT RESTRICTED RIGHTS. This section applies to all acquisitions of the Software by or for the United States government. By accepting delivery of the Software except as provided below, the government or the party procuring the Software under government funding, hereby agrees that the Software qualify as “commercial” computer software as that term is used in the government acquisition regulations and that the government’s use and disclosure of the Software is controlled by the terms and conditions of this Agreement to the maximum extent possible. This Agreement supersedes any contrary terms or conditions in any statement of work, contract, or other document that are not required by statute or regulation. If any provision of this Agreement is unacceptable to the government, Licensor may be contacted at Licensor Engineering, Inc., 1820 E. Big Beaver Road, Troy, MI 48083-2031; telephone (248) 614–2400. If any provision of this Agreement violates applicable federal law or does not meet the government’s actual, minimum needs, the government agrees to return the Software for a full refund. For procurements governed by DFARS Part 227.72 (OCT 1998), the Software, except as described below, is provided with only those rights specified in this Agreement in accordance with the Rights in Commercial Computer Software or Commercial Computer Software Documentation policy at DFARS 227.7202-3(a) (OCT 1998). For procurements other than for the Department of Defense, use, reproduction, or disclosure of the Software is subject to the restrictions set forth in this Agreement and in the Commercial Computer Software -Restricted Rights FAR clause 52.227-19 (June 1987) and any restrictions in successor regulations thereto.
10. CHOICE OF LAW AND VENUE. This Agreement shall be governed by and construed under the laws of the state of Michigan, without regard to that state’s conflict of laws principles except if the state of Michigan adopts the Uniform Computer Information Transactions Act drafted by the National Conference of Commissioners of Uniform State Laws as revised or amended as of June 30, 2002 (“UCITA”) which is specifically excluded. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Each Party waives its right to a jury trial in the event of any dispute arising under or relating to this Agreement. Each party agrees that money damages may not be an adequate remedy for breach of the provisions of this Agreement, and in the event of such breach, the aggrieved party shall be entitled to seek specific performance and/or injunctive relief (without posting a bond or other security) in order to enforce or prevent any violation of this Agreement.
11. PAYMENT. Licensee shall pay in full the fee for licensed Software and Support within thirty (30) days of receipt of the invoice. Past due fees shall bear interest at the rate of five percent (5%). Licensor may condition its delivery of any Maintenance Release or Update to Licensee on Licensee’s having paid all amounts then owed to Licensor. Fees do not include taxes or duties and Licensee is responsible for paying (or for reimbursing Licensor if Licensor is required to pay) any federal, state or local taxes, or duties imposed on the sale of the Software or the possession or use by Licensee of the Software excluding, however, all taxes on or measured by Licensor’s net income. Licensor shall be entitled to its reasonable costs of collection (including attorneys fees and interest) if license fees are not paid to it on a timely basis.
12. TERM. For annual licenses, and for Support provided for perpetual licenses, renewal shall be automatic for each successive year (“Renewal Term”), upon mutual written execution of a new Order Form. All charges and fees for each Renewal Term shall be set forth in the Order Form executed for each Renewal Term. Software licenses procured by Licensee may be made coterminous at the written request of Licensee and the consent of Licensor.
13. TERMINATION. Either party may terminate this Agreement upon thirty (30) days prior written notice upon the occurrence of a default or material breach by the other party of its obligations under this Agreement (except for a breach by Licensor of the warranty set forth in Section 6 for which a remedy is provided under Section 8; or a breach by Licensee of Section 3 or Section 4 for which no cure period is provided and Licensor may terminate this Agreement immediately) if such default or breach continues for more than thirty (30) days after receipt of such notice. Upon termination of this Agreement, Licensee must cease using the Software and, at Licensor’s option, return all copies to Licensor, or certify it has destroyed all such copies of the Software and Documentation.
14. GENERAL PROVISIONS.
A. Export Controls. Licensee acknowledges that the Software may be subject to the export control laws and regulations of the United States and other countries, and any amendments thereof. Licensee agrees that Licensee will not directly or indirectly export the Software into any country or use the Software in any manner except in compliance with all applicable U.S. and other countries’ export laws and regulations.
B. Notice. All notices given by one party to the other under the Agreement shall be sent by certified mail, return receipt requested, or by overnight courier, to the respective addresses set forth in this Agreement or to such other address either party has specified in writing to the other. All notices shall be deemed given upon actual receipt.
C. Assignment. Neither party shall assign this Agreement without the prior written consent of other party, which shall not be unreasonably withheld. All terms and conditions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
D. Waiver. The failure of a party to enforce at any time any of the provisions of this Agreement shall not be construed to be a waiver of the right of the party thereafter to enforce any such provisions.
E. Severability. If any provision of this Agreement is found void and unenforceable, such provision shall be interpreted so as to best accomplish the intent of the parties within the limits of applicable law, and all remaining provisions shall continue to be valid and enforceable.
F. Headings. The section headings contained in this Agreement are for convenience only and shall not be of any effect in constructing the meanings of the Sections.
G. Modification. No change or modification of this Agreement will be valid unless it is in writing and is signed by a duly authorized representative of each party.
H. Conflict. In the event of any conflict between the terms of this Agreement and any terms and conditions on a Licensee Purchase Order or comparable document, the terms of this Agreement shall prevail. Moreover, each party agrees any additional terms on any Purchase Order or comparable document other than the transaction items of (a) item(s) ordered; (b) pricing; (c) quantity; (d) delivery instructions and (e) invoicing directions, are not binding on the parties.
I. Execution. Copies of this Agreement executed via original signatures, facsimile or email shall be deemed binding on the parties.
J. Entire Agreement. This Agreement, and the Order Form(s) constitute the entire understanding between the parties related to the subject matter hereto, and supersedes all proposals or prior agreements, whether written or oral, and all other communications between the parties with respect to such subject matter. This Agreement may be executed in one or more counterparts, all of which together shall constitute one and the same instrument.