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1
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Definitions. The following words and phrases shall have the definitions set forth below throughout this Agreement, regardless of whether or not such words or phrases are capitalized:
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l
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The term “Confidential Information” shall mean: (i) with respect to our information and information of our suppliers, the Programs, together with any other non-public information learned in connection therewith that should reasonably be considered confidential under the circumstances; (ii) with respect to your information, any and all information and files submitted to us through the web page https://secure.comsol.com/support/confidential or, in the case of items subject to U.S. export control restrictions, to
us-export-control@us.comsol.com, that derives actual or potential economic value from being kept confidential. |
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p
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q
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The term “Examples” shall mean samples provided by us for use with the Programs, which we provide either with the Programs in the “applications” and “demo” folders of the directory for your installation of the Programs or through the Application Gallery at www.comsol.com or through the Application Library Update feature of the Programs. The term “Examples” shall also be deemed to encompass those portions of the Documentation describing the foregoing.
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2
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License Grant. During the term of this Agreement, we grant to you a non-exclusive, non-transferable, limited license to use the Programs, Documentation, and Examples as provided herein. Certain Externally Authored Programs are licensed under different terms set by the publishers of such Externally Authored Programs, as set forth in the about.txt file that is included with the Programs, or listed under your licensed version of the Programs on www.comsol.com/legal/about/. Any terms contained or referenced in the about.txt file, or listed under your licensed version of the Programs on www.comsol.com/legal/about/, for a particular Externally Authored Program shall take precedence for such Externally Authored Program to the extent of any conflict between such terms and these Terms and Conditions.
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a
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Programs. You may license an NSL, a CPU, an FNL, or a CSL version of the Programs under this Agreement. For an FNL or CSL license, your license rights are for the number of concurrent users set forth on our invoice or the purchase order we accept. Programs licensed under one license type may not be run in integrated use with Programs licensed under another license type.
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b
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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, except as expressly provided otherwise in this Agreement with respect to certain of the Externally Authored Programs.
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c
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Examples. Examples may be used as a starting point in creating your own work and modified to form part of that work, in connection with authorized use of the Programs. Provided that your changes or additions to the Examples are sufficiently substantial to create a derivative work, you then have the right to use, modify, publish, and distribute those modified Examples as part of your derivative work. You shall comply with all laws applicable to your activities, and you shall disclaim all warranties on behalf of us and limit our liability as set forth in this Agreement in connection with your redistribution or republication of Examples or modified Examples. Furthermore, notwithstanding anything to the contrary herein, any Example containing a notice of third party authorship may not be modified, redistributed, or republished unless there are terms contained in such file expressly allowing such modification, redistribution, and/or republication. Certain examples provided by us are provided under different terms and conditions for use and publication. Such different terms and conditions are identified via a notice in the Application. Any modification, republication, or redistribution of Example Applications, Example Physics Interfaces, or code Examples using the COMSOL API shall comply with Section 3 of this Agreement and any terms and conditions applicable to the Example.
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d
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Ownership. The Programs are licensed and not sold. All right, title and interest in and to the licensed Programs and Documentation, including without limitation, copyrights and trade secrets, are, and shall at all times remain, the exclusive property of us and/or those parties who have licensed Externally Authored Programs and other programs for incorporation into our Programs, and you shall have no right, therein, except the expressly limited license rights granted herein.
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e
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Non-transferable. You may not sell, license, sublicense, rent, or distribute any Program or Documentation, or make it available for use on a “time sharing” basis, except that each concurrent user’s rights to the CSL version of the Programs may, subject to the terms and conditions set forth in this Agreement, be sublicensed, in whole or in part, to one or more third parties, including on a time-share basis, for the sole purpose of hosting and running one or more Applications that require the Programs to run. Any sublicensing of the CSL version of the Programs is conditioned upon the following:
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f
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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, and any use of the Programs not expressly authorized by us herein shall be deemed a breach of these Terms and Conditions. Except as expressly set forth in Section 3, 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 and Conditions. You represent and warrant that you will use only COMSOL software that has been validly licensed to you by us or our authorized distributors or resellers.
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g
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License Subject to Payment. The license granted herein is contingent upon your timely and complete payment of all amounts due and payable to us.
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h
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Use.
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i
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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.
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j
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License Manager. You may only use the Programs with the license manager with which the Programs were delivered, and you may not take any action to interfere with or disable such license manager. You may not mechanize or automate the process of checking out or in license seats for one or more Programs and/or components thereof for the purpose of circumventing license management. Login credentials may not be shared between users of the Programs.
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k
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Authentication and Validation. We may use various technologies to authenticate and validate your use of the Programs and to process related information in our information systems.
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l
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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 the rights for this Commercial Computer Software and Commercial Computer Software Documentation as set forth herein in accordance with the applicable Federal Acquisition Regulations for the acquisition of Commercial Computer Software and Commercial Computer Software Documentation. In particular, for units of the Department of Defense: the Government shall have only the rights specified in the license under which the Programs, as commercial computer software, and the Documentation, as commercial computer software documentation, were 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 Government shall have only the rights specified in this Agreement under which the Programs as commercial computer software and the Documentation as commercial computer software documentation were obtained, as set forth in FAR 12.212. When FAR clause 52.227-19 applies, the Government’s rights include those set forth in paragraph (b)(2) of that clause, except that under no condition does this license extend to the source code of the Programs or otherwise obligate us to modify the Programs or Documentation for the Government.
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m
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Trial Licenses. If you have been granted a 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, academic, or production use, i.e., you may use the Program only to test the functionality of the Program. Nor may you publish any results obtained through the use of a license to a trial version of the Programs. Trial licenses shall be for the license type we specify and shall last for the length of time specified by us, in our sole discretion, and may be canceled at any time by us, in our sole discretion. In the event we do not specify a license type for a trial license, the trial license shall be deemed to be for the NSL license type for the use of the Named User to whom we have issued such trial license. Upon expiration of the trial period, all Programs that are the subject of that trial license shall automatically become disabled. Support shall be provided only for the length of time that the trial license is in effect, and there shall be no other Maintenance and Support provided in connection with any trial licenses. We shall have no warranty obligations for trial licenses of any type. With respect to trial licenses, this paragraph (m) shall prevail over any conflicting provisions in this Agreement.
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n
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Protection and Confidentiality of Our Information. You acknowledge that the Programs contain trade secrets and other valuable and confidential information of ours and of licensors of information or materials to us, 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. You shall disclose Confidential Information of ours and our licensors only on a need-to-know basis to your employees; you may not disclose any Confidential Information of ours and our licensors to a third party; and you shall use all reasonable care to keep the Confidential Information of ours and our licensors confidential consistent with the grant of your licensed rights. In no event shall the obligations set forth in this Section 2(n) override any requirement imposed on any licensee using the Programs by or on behalf of any state or federal government within the U.S. by any public records, freedom of information, or similar law providing for public access to governmental records.
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o
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Protection and Confidentiality of Your Information. For a period of three years following your disclosure of Confidential Information to us: we will disclose such Confidential Information only on a need-to-know basis to our employees and contractors and not to any other person or entity; we shall use such Confidential Information solely for the purposes for which it is disclosed; and we shall use all reasonable care to keep such Confidential Information confidential consistent with your disclosure of such information to us.
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p
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Exceptions to Confidentiality. The confidentiality obligation set forth in Section 2(o) shall not apply to any information or materials which (i) were in our possession before we received them from you; (ii) are or become publicly available through no fault of ours; (iii) are independently developed without reliance on the Confidential Information; (iv) are received from a third party with no duty of confidentiality to you; (v) are approved by you in writing for disclosure, or (vi) are made available by you to a third party without any restriction on disclosure. Furthermore, neither the obligations set forth in Section 2(o) nor our receipt of your Confidential Information shall be construed to limit us from independently developing or acquiring products or technologies without the use of your Confidential Information, nor to work with persons or entities that have independently developed information or materials similar to such Confidential Information. You acknowledge that we may be actively engaged in technical development related to the subject matter of your Confidential Information. You covenant not to sue or bring any action, claim, or proceeding against us, our subsidiaries or affiliates, or any of our or their officers, directors, employees, or contractors, based in whole or in part on the use, copying, or other exploitation of any Residuals.
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q
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Legal Proceedings/Government Investigations. Subject to applicable data privacy laws, we may provide any and all information provided to us to any party in response to a subpoena or to a judicial or administrative order requiring the production of such information or to any governmental authority in connection with the investigation and/or prosecution of any actual or potential crime. Notwithstanding the foregoing, we will undertake commercially reasonable measures to ensure that any production of your Confidential Information pursuant to this Section 2(q) is done in a manner that ensures the confidentiality of such Confidential Information shall be protected and will undertake commercially reasonable measures to give you notice reasonably in advance of any production of your Confidential Information in response to a subpoena or judicial or administrative order.
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r
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Submissions. To the extent you make any Submissions: (i) you represent and warrant that, to the best of your knowledge, such Submissions do not infringe any intellectual property rights of any third party; (ii) you acknowledge that we may use such Submissions but are under no obligation to do so; (iii) you grant to us a non-exclusive, irrevocable, world-wide license to reproduce, distribute, transmit, publicly display, publicly perform, modify, translate, make derivative works based on, manufacture, make, market, sell, offer to sell and/or otherwise use such Submissions and derivative works based thereon, in whole or in part, including, without limitation, by incorporating such Submissions, in whole or in part, within our Programs and/or other programs, and occurring in or through any media now existing or existing at any time in the future, and to grant sublicenses to engage in the foregoing activities; (iv) you waive any right or claim to additional consideration for such Submissions beyond our review of your Submissions and the rights you receive under the Terms and Conditions (including any claim for payment or other compensation); and (v) you waive any right or claim to attribution in connection with any use we may make of such Submissions. To the extent we are not independently developing ideas, concepts, proposals, or other materials similar to the Submission(s), we may contact you regarding any Submissions for which we may want to consider seeking patent rights.
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s
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Future Releases. We reserve the right to change or discontinue any or all of the Programs without prior notice, although any such change in, or discontinuance of, a Program shall not abrogate your right to continue using a previously licensed Program for the duration of the term.
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3
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Program Output. Models, Physics Interfaces, Applications, and Compiled Applications produced by the Programs are subject to the following restrictions:
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a
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Models and Physics Interfaces. You may use, publish, distribute, and authorize others to use Models and Physics Interfaces that you create with the Programs worldwide, subject to the terms and conditions of this Agreement.
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b
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c
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Compiled Applications. If your licensed Programs include the COMSOL Compiler, then the following terms and conditions apply:
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d
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Independent Development. You acknowledge that we may be engaged in independent development in the subject area of any support requests that relate to any Applications or Compiled Applications created by you, used by you, or distributed by you or on your behalf and that we have no obligation to limit or restrict the assignment of personnel based on their involvement in fulfilling any such support requests. On behalf of yourself and your parent companies, subsidiaries, and affiliates, you covenant and agree not to bring any legal proceeding and not to lend any assistance in the bringing of any legal proceeding alleging that any independently developed current or future software products that we distribute infringe any intellectual property rights of yours or theirs in any Application or Compiled Application that you or they have developed or any invention, design, or discovery thereof.
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4
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License Term. Unless terminated earlier according to this Agreement, this Agreement shall continue either perpetually or for a limited period, as identified in a quotation we issue that you accept, in a purchase order accepted by us or in our invoice. Absent any such earlier termination, term licenses will end after their term, unless the then-current term license fee has been previously remitted to us. You shall have the right to use Programs licensed under a perpetual license indefinitely, subject to the termination as well as maintenance and support provisions of this Agreement.
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5
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Delivery. We may deliver the Programs and Documentation to you in archival form on physical computer readable media or over the Internet with installation materials which specify the licensed Programs. You shall be responsible for all use of your installation materials, authorized or not, and you shall not disclose the archive installation materials or allow them to be used except for use as expressly permitted herein.
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6
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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 of the Terms and Conditions in this Agreement, but it shall be your responsibility to comply with the latest Export Law. You represent and warrant that, unless authorized by the government that issued the applicable Export Laws, neither you nor any person or entity you permit to use the Programs under this Agreement is located in or is a permanent resident of any country subject to any U.S. or other embargo or any country that is specially designated by the U.S. government as a “terrorist supporting” country and that neither you nor any person or entity you permit to use the Programs under this Agreement is on any U.S. government list of prohibited or restricted parties. If, in connection with any support request, you wish to send us information that can only be shared with U.S. persons under any Export Laws, the only way in which you may do so is by email to: us-export-control@us.comsol.com. You understand and agree that restricting any support request in this manner will limit the number of support engineers available to respond to your request, which may limit our ability to provide a response that is to your satisfaction. In the event that you wish to include any Confidential Information in such a support request to be protected in accordance with Section 2(o), you must mark such email with the designation “Confidential Information” in the subject line of the message. You shall be solely responsible for ensuring that all files you send to us in connection with any support request comply with all applicable Export Laws, including with respect to our accessing those files in any locations in which we do business and by our employees, regardless of nationality or residency, unless such requests are submitted as set forth in this Section 6. In the event you are unable to provide us with items relevant to a support request on account of Export Laws, we shall undertake commercially reasonable efforts to address the support request but do not guarantee our ability to do so.
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a
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Term for Maintenance and Support. Unless you have purchased a term license with a Maintenance and Support period expiring prior to the end of the term, Maintenance and Support will terminate upon the earlier of twelve (12) months or the expiration of the term. Notwithstanding the foregoing, termination of the Maintenance and Support period for any one Program shall terminate the period for Maintenance and Support for all other Programs that require that Program in order to run, even if such other Programs were purchased separately. That initial period for Maintenance and Support commences on the first day of the month following the month in which a purchase order has been accepted. However, if, by that time, you have not yet supplied us with all of the information needed for us to provide installation materials, the initial period for Maintenance and Support shall commence on the first day of the month following the month during which we first requested the information needed to provide installation materials. Notwithstanding the foregoing, there shall be no reduction in the initial period for Maintenance and Support on account of any delay by us in requesting the information necessary to provide installation materials or any delay by us in providing installation materials following receipt by us of all such information.
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b
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Updates and New Versions. All updates to, and new versions of, the Programs that we deliver shall be deemed to be part of the Programs that are licensed pursuant to this Agreement or any successor version of this Agreement displayed upon installation of such updates to and/or new versions of the Programs.
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c
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Renewal. Maintenance and Support may be renewed, at the then-current price, as long as we offer such services. If you fail to renew Maintenance and Support when due, we may charge you a fee for restarting Maintenance and Support.
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d
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Scope. Maintenance and Support is limited to the latest two released versions of the Programs and do not include technology preview functionality or prereleases such as alphas or betas. For this purpose, separate versions are defined by a change in a digit within the first decimal place within the version number or a change in letters appended thereto.
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e
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Use of Support Materials. Unless the support request is designated as Confidential pursuant to Paragraph 2(o), you agree that any materials provided by you to us in connection with a support request may be retained and used by us and our contractors and licensors for the purpose of correcting, developing, and testing workarounds for any programming errors that such materials may evidence and for the purpose of product development and improvement.
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9
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Limitation Of Liability. EXCEPT TO THE EXTENT OTHERWISE REQUIRED BY LAW AND EXCEPT FOR OUR INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 10, OUR SOLE LIABILITY OR OBLIGATION ARISING UNDER OR RELATING TO THIS AGREEMENT (AND THE SOLE LIABILITY OF OUR LICENSORS, DISTRIBUTORS, AND RESELLERS RELATING TO THIS AGREEMENT) IS THE REPLACEMENT OF DEFECTIVE MEDIA ACCORDING TO THE LIMITED WARRANTY ABOVE. EXCEPT TO THE EXTENT OTHERWISE REQUIRED BY LAW AND EXCEPT AS SET FORTH IN SECTION 10, IN NO EVENT SHALL WE OR OUR LICENSORS, DISTRIBUTORS, OR RESELLERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, DAMAGES FROM THIRD PARTY CLAIMS, LOSS OF PROFITS, LOSS OF DATA, INVASION OF PRIVACY, FAILURE TO MEET ANY DUTY SUCH AS GOOD FAITH OR REASONABLE CARE, NEGLIGENCE, OR ANY OTHER LOSS, EVEN IF WE OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, E.G., WE ARE UNABLE TO REMEDY ANY DEFECT IN THE PROGRAMS. IN ANY EVENT, EXCEPT TO THE EXTENT OTHERWISE REQUIRED BY LAW AND EXCEPT AS SET FORTH IN SECTION 10, 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. FURTHERMORE, EXCEPT TO THE EXTENT REQUIRED BY LAW, IN NO EVENT SHALL OUR LICENSORS BE RESPONSIBLE FOR ANY DAMAGES OF ANY NATURE ARISING OUT OF OR RELATING TO THIS AGREEMENT. The remedies against us and our licensors, distributors, and resellers expressly provided herein are exclusive and are in lieu of any other remedies at law or in equity. The fees and limitations of liability and remedies for the license to the Programs reflect the allocation of risk between the parties. This section is an essential element of the basis of the bargain between the parties.
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10
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By You. You agree to indemnify, defend, and hold harmless us and our parents, subsidiaries, affiliates, successors, distributors, and resellers, and each of our and their officers, directors, employees and representatives, against and from any and all Losses arising out of or in connection with any and all third party claims relating to any use of the Programs by you and any act or omission of yours or relating to Applications or Compiled Applications created by you, used by you, or distributed by you or on your behalf, including third party claims related to your activities pursuant to this Agreement, except to the extent we indemnify you as described below. If you are a governmental user in a jurisdiction which limits your ability to enter into indemnification agreements, then the foregoing indemnification obligation shall apply only to the extent permitted by applicable law.
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b
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By Us. We agree to indemnify, defend, and hold harmless you, your parents, subsidiaries, affiliates, and successors, and each of your and their officers, directors, employees and representatives, against and from, and to the extent you suffer, any Losses because the licensed Programs infringe a third party’s intellectual property rights.
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c
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Limitation. We shall have no liability or obligation to you hereunder for any infringement based upon (i) the combination of any of the licensed Programs with any other software, hardware or other products not developed by us, (ii) the use of other than a current, unaltered version of the licensed Programs, (iii) any use of a licensed Program for other than its intended purpose, (iv) modifications, improvements and derivative works of the licensed Programs created by or on behalf of you, or (v) if you breach this Agreement for failure to pay amount due.
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d
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Cooperation. In connection with any claim or action described in this Section, the party seeking indemnification (i) will give the indemnifying party prompt written notice of the claim, (ii) will cooperate with the indemnifying party (at the indemnifying party’s expense) in connection with the defense and settlement of the claim, and (iii) will permit the indemnifying party to control the defense and settlement of the claim, provided that the indemnifying party may not settle the claim without the indemnified party’s prior written consent (which will not be unreasonably withheld). Further, the indemnified party (at its cost) may participate in the defense and settlement of the claim. Any breach of this paragraph by the indemnified party that causes prejudice to the indemnifying party shall relieve the indemnifying party of its indemnification obligation.
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11
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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.
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12
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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.
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13
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Taxes. You shall be liable for any taxes (except those on our net income) due in connection with this Agreement.
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14
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Termination. We may terminate this Agreement by written notice to you if you breach any of the Terms and Conditions and have not cured such breach within sixty (60) days (within fifteen (15) days if the breach is for non-payment) thereafter. Notwithstanding the foregoing, we may terminate at any time in the event you make any unauthorized use, reproduction, distribution, public display, or public performance of, or preparation of derivative works based on, the Programs as delivered hereunder or as otherwise obtained by you. Furthermore and without limiting any other remedies available to us, if you or any of your parent companies, subsidiaries, or affiliates bring any legal proceeding alleging that any current or future software products that we distribute infringe any intellectual property rights of yours or theirs in or pertaining in whole or in part to any Program output that you or they have developed or any invention, design, or discovery thereof, then we shall have the right to terminate, effective after thirty (30) days written notice, all licenses granted to you and them. 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.
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15
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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 and Documentation 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, 2(d), 2(i), 2(n), 2(o), 2(p), 2(q), 3(a), 3(b)(ii)–(iv), 3(c)(ii)–(iv), 8, 9, 10, 12, 13, 14, 15, 17, 19, and 20 of this Agreement shall survive termination or expiration of this Agreement.
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16
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Assignment and Transfer. We may freely assign this Agreement. 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, and any prohibited assignment or transfer shall be null and void. 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.
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17
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Personal Data and Privacy. Certain of your interactions with us involve providing us with personal data. For information on what personal data we collect, how we process it, and how you can control the use of your personal data, see https://www.comsol.com/privacy-policy. If you supply us with personal data of employees or others, you are solely responsible for securing their consent in accordance with applicable laws.
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18
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Revised Terms and Conditions. New releases of the Programs may be licensed under revised Terms and Conditions, and such revised Terms and Conditions shall be effective upon installation thereof.
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19
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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 of the Terms and Conditions 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. If you purchased a license to the Programs in the Americas (including the Caribbean and Canada), this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts and the United States of America, without regard to conflicts of laws principles. Such licensees agree that any dispute, controversy, or claim arising out or relating to this Agreement or the breach, termination, or alleged invalidity thereof shall be subject to exclusive jurisdiction and venue in the state and federal courts in the Commonwealth of Massachusetts and consent to personal jurisdiction therein. If you purchased a license to the Programs outside the Americas, this Agreement shall be governed by and construed in accordance with the laws of Sweden without regard to conflicts of law principles. If you purchased a license outside the Americas, any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination, or alleged invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”). The Rules for Expedited Arbitrations shall apply to such arbitrations, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators. The Parties shall keep all information, documentation, materials in whatever form disclosed in the course of such arbitral proceeding confidential and they shall be used solely for the purpose of those proceedings. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English. For all licensees, the parties agree that neither the U.N. Convention on Contracts for the International Sale of Goods nor the provisions of the Uniform Computer Information Transaction Act (“UCITA”) as adopted or as may be adopted by any state shall apply or govern this Agreement or the relationship of the parties hereto. To the extent UCITA may be deemed applicable, the parties agree to opt out of its applicability pursuant to the opt out provisions contained therein. You may not bring any action against us or our licensors more than two (2) years after the cause of action accrued. To the extent permitted by law, you hereby waive any sovereign immunity that you would otherwise be entitled to assert with respect to any claim arising out of or relating to these Terms and Conditions. If you are a governmental user in a jurisdiction whose law restricts your ability to enter into agreements regarding the terms in this Section 19, then such Section shall be enforceable only to the extent permitted by applicable law; and the applicable law for the governance and construction of this Agreement and the applicable jurisdiction for disputes between the parties shall be dictated by any such legal requirement conflicting with this Section 19. If you acquired the Programs outside the United States, then any local laws conflicting with the selection of applicable law and jurisdiction in this Section shall be given precedence over this Section. While certain portions of the Programs have been obtained by us from our licensors, we are solely responsible for providing licenses to the Programs, and our licensors have no responsibility for providing such licenses to you, no obligations with respect to maintenance or support for the Programs or for addressing claims regarding the Programs, and have made no warranties regarding the Programs. Our licensors are third party beneficiaries of this Agreement and shall have the right to enforce its provisions. The parties to this Agreement hereby confirm their desire that this Agreement, and any documents relating thereto, be written solely in the English language. Les parties au présent Accord confirment leur volonté que cet Accord, ainsi que les documents s’y rattachant, soient rédigés uniquement en langue anglaise.
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Entire Agreement. This Agreement and the applicable Addenda hereto (if relevant), together with any pricing, terms of payment, identification and quantification of Programs to be delivered, method and location of delivery, territory, and term set forth on our invoice or order acknowledgment, contain the entire understanding of the parties with respect to the subject matter, and supersedes all prior, contemporaneous, and subsequent proposals, agreements, representations, and understandings. This Agreement may not be changed except as provided herein in a writing signed by you and us. No purchase order or any other standardized business form issued by you, even if such purchase order or other standardized business form provides that it takes precedence over any other agreement between the parties, shall be effective to contradict, modify, add to or delete from the terms of this Agreement in any manner whatsoever and all such terms are hereby objected to and rejected, except that, if you are a governmental user in a jurisdiction where contractors are legally required to comply with applicable laws in order to sell a software license to that user's governmental unit or entity, then we shall comply with such laws, provided that we are informed in writing of any such requirements in advance, provided that such requirements do not conflict with any other laws applicable to our business operations, and provided further that this provision may not be used to change the nature, scope, or duration of the rights you receive in the Programs, our maintenance obligations, the financial terms of sale, or the rights, obligations, warranties, or liabilities of our licensors. Any acknowledgment, in any form, of any such purchase order or standardized business form is not recognized as a subsequent writing and will not act as acceptance of such terms.
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