Lumerical License Agreement

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND ANSYS LUMERICAL SOFTWARE ULC IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THE SOFTWARE LICENSE, YOU MAY NOT INSTALL OR USE THE SOFTWARE AND YOU DO NOT BECOME A LICENSEE UNDER THIS AGREEMENT. BY INSTALLING OR USING THE SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT.

IMPORTANT NOTE: The legal basis for the collection and use of information or data described in this license agreement about an identifiable individual or that is otherwise subject to applicable law is set out in our privacy policy, which is available at https://www.lumerical.com/privacy and is incorporated into this license agreement by reference. If you exercise certain rights described in our privacy policy, ANSYS Lumerical Software ULC may, depending on the circumstances, terminate the license of the Software or be unable to provide you with services. You should read our privacy policy in full.

  1. GRANT OF LICENSE. ANSYS Lumerical Software ULC (“Lumerical”) grants to you (“Licensee”), a limited, non-exclusive, non-transferrable license to use, during the applicable term (as defined in Section 15) of this license agreement, the software product included in the installation package that is ordered by Licensee and authorized by Lumerical (the “Software”), in such geographic territory for which the Software is ordered, within the limitations of the license rights permitted for each feature within the Software (as described in Section 6), subject to the terms and conditions set forth in this license agreement, Licensee’s timely and complete payment of all applicable license fees to Lumerical and the following additional qualifications and limitations applicable to the particular type of license (the “License Type”) selected by Licensee:
    1. Commercial License: With a commercial license (a “Commercial License”), Licensee’s use of the Software in accordance with the license granted hereunder shall be limited to use of the Software for its internal data processing purposes. Each Commercial License is made available to Licensee in conjunction with the Premium Support Plan described in Section 8.
    2. Non-Commercial License: With a non-commercial license (a “Non-Commercial License”), Licensee’s use of the Software in accordance with the license granted hereunder shall be limited to use of the Software for its internal data processing purposes solely for non-commercial, non-proprietary, non-classified research, the results of which shall be in the public domain. Use of the Software for any other purpose pursuant to a Non-Commercial License is prohibited and shall be a breach of this license agreement. For the avoidance of doubt, use of the Software pursuant to a Non-Commercial License in connection with the development of proprietary intellectual property, such as patents, is prohibited and shall be a breach of this license agreement. Each Non-Commercial License is made available to Licensee in conjunction with the Premium Support Plan described in Section 8. Each Non-Commercial Site License is made available to Licensee in conjunction with a support plan as described in Section 8 of the Agreement, it being understood that the applicable order documentation relating to the Software will specify the number of Designated Users that are entitled to the Premium Support Plan and the Community Support Plan respectively.
    3. Academic License, Academic KX Edition License, Academic Site License or Teaching License: If Software is licensed for academic research or teaching, a separate Academic and Educational Addendum also applies, and forms a part of this license agreement.
    4. Trial License: With a trial license (a “Trial License”), Licensee’s use of the Software in accordance with the license granted hereunder shall be limited to installation of the Software on up to the maximum number of computers expressly authorized by Lumerical, and use of the Software for its internal data processing purposes solely for the purposes of Licensee’s evaluation of the Software to determine if Licensee will purchase one of the License Types available for sale by Lumerical. Use of the Software for any other purpose pursuant to a Trial License is prohibited and shall be a breach of this license agreement. Licensee shall ensure that all such computers on which the Software is utilized pursuant to a Trial License are connected to the internet at all times that the Software is in use, unless otherwise authorized by Lumerical in writing. Lumerical reserves the right to and may, in Lumerical’s sole discretion, restrict or cancel a Trial License at any time for any reason. Each Trial License is made available to Licensee in conjunction with the Community Support Plan described in Section 8.
      Regardless of the particular License Type selected by Licensee, Licensee is responsible for the use of the Software by all end-users and must ensure that the end-users: (i) use the Software only in compliance with this license agreement; and (ii) agree to and comply with the terms of this license agreement. Any breach of the terms of this license agreement by an end-user shall be a breach of this license agreement by Licensee.
  2. PROPRIETARY RIGHTS AND OTHER RESTRICTIONS. The Software (including any copy or component thereof) is owned by Lumerical or its suppliers or licensors, and is protected by domestic and international copyright, patent and other applicable laws, regulations and international treaty provisions. The Software is licensed pursuant to this license agreement, and no express or implied term of this license agreement conveys to Licensee any title, ownership or any other rights in the Software or any copy thereof, or any copyright, patent, trade-mark, trade name, know how, trade secret or other intellectual property rights therein. No provision of this license agreement shall be construed to grant to Licensee, either expressly or by implication, any license under any other proprietary rights of Lumerical covering or relating to any other product or invention of Lumerical, or any combination of the Software with any other product or service of Lumerical. Lumerical hereby reserves all rights not explicitly granted in this license agreement. Licensee may not sell, assign, transfer, rent, lease, sublicense or distribute rights to the Software, in whole or in part, or make the Software, in whole or in part, available to any third person, without Lumerical’s prior written consent. Licensee agrees to install and use, without modification, the license management program provided by Lumerical in connection with the Software. Except as expressly permitted in this license agreement, Licensee may not use, make copies of, modify, or translate the Software or any part of it, and may not reverse engineer, decompile, disassemble, or decrypt the Software for any purpose. In addition, Licensee may not: (a) work around any technical limitations in the Software, including, without limitation, intentional technical limitations in the Software that pertain to license usage; (b) publish or distribute all or any part of the Software; (c) use the Software for commercial software hosting services; (d) allow the Software to be used or accessed by any unauthorized persons or more than the number of Licensee’s end-users authorized by Lumerical; (e) disclose the Software to any person except its authorized end-users who are bound by obligations of confidentiality with respect to the Software; (f) use the Software or its output to design, develop or enhance any product or service that competes with the Software; or (g) remove any proprietary notices or labels from the Software. Notwithstanding the foregoing, Licensee shall be permitted to exercise such rights as are granted under applicable law. These restrictions shall survive the termination or expiration of this license agreement. Licensee may create assets (“Licensee Assets”) with, and in the manner permitted by, the Software and shall own such Licensee Assets, subject (in all cases) to the following conditions: (v) the Licensee Assets are created in strict compliance with the terms and conditions of this license agreement (including the restrictions set out in this Section 2) and documentation provided by Lumerical applicable to the Software; (w) the documentation applicable to the Software expressly contemplates the creation of the Licensee Assets; (x) Licensee shall not use or distribute, or permit the use or distribution of, the Licensee Assets other than in connection with Software properly licensed from Lumerical; (y) Licensee indemnifies and holds Lumerical harmless for use of Licensee Assets by it or by third-parties (whether with or without Lumerical’s knowledge or consent); and (z) if Licensee creates Licensee Assets that are protected with a license key from Lumerical that is unique to Licensee, Licensee hereby grants Lumerical the right to sell and distribute the corresponding license keys that permit third parties to access and use the Licensee Assets.
  3. CONFIDENTIAL INFORMATION. In this license agreement, “Confidential Information” means any confidential information, technical data or know-how, including, but not limited to detailed technical specifications, documents relating to technical support, bug reports, beta versions and product benchmarking, provided by Lumerical to Licensee, orally or in writing, whether or not marked as confidential, but excluding such information that: (a) is or becomes publicly available through no fault of Licensee; (b) is disclosed to Licensee by a third party without any breach of obligation of confidentiality with respect to such information; (c) is already known to Licensee without any obligation of confidentiality with respect to such information prior to disclosure to Licensee by Lumerical; or (d) is independently developed or discovered by Licensee without reference to the Confidential Information. Licensee shall keep confidential the Confidential Information and use the Confidential Information only for the purpose of Licensee performing its obligations under this license agreement. Licensee shall not disclose any of the Confidential Information to any person or entity, except those of Licensee’s directors, officers, employees and contractors who require such Confidential Information for the purpose of Licensee performing its obligations under this license agreement, provided, however, that such directors, officers, employees and contractors have entered into confidentiality agreements with Licensee containing obligations of confidentiality with respect to such Confidential Information that are consistent with those in this license agreement. Licensee shall obtain no right, title or interest in the Confidential Information by reason of this license agreement or the disclosure of such Confidential Information pursuant to this license agreement. Licensee shall take all steps necessary to protect the confidentiality of the Confidential Information. Notwithstanding the foregoing, Licensee may disclose the Confidential Information if and to the extent required by court order or legal compulsion.
  4. FEATURE REQUESTS AND PRODUCT IMPROVEMENTS. Licensee acknowledges and agrees that any interaction with or feedback provided to Lumerical, either directly stated or implied, may be used by Lumerical to improve the Software in the future. Lumerical shall be the sole owner of any and all developments, modifications, enhancements, changes or new proprietary information or intellectual property that is developed in relation to the Software or other related software products (“Improvements”), including, without limitation, Improvements generated by any and all suggestions, ideas, concepts, comments or feedback (“Feedback”) that is provided by Licensee to Lumerical. Lumerical shall have all rights associated with any such Improvements and Feedback without recourse or reference to Licensee.
  5. LICENSE FOR THIRD PARTY SOFTWARE. Lumerical has been granted licenses to distribute certain third party software that may be incorporated in the Software. As a condition of those licenses, Lumerical is required to distribute such third party software subject to specific terms and conditions, which may be different from or additional to those contained herein for Lumerical’s Software. Licensee understands and agrees that acceptance of this license agreement also confirms Licensee’s acceptance of the applicable provisions for use, including the restrictions on use, of such third party software. In addition, Licensee acknowledges that certain third party software components incorporated in the Software may include elements licensed or procured from certain open source libraries (“Open Source Elements”), and use (including modification) of such Open Source Elements may be subject to the terms and conditions of the relevant open source library. The current applicable provisions for such third party software and Open Source Elements may be viewed at https://www.lumerical.com/licensing/third-party-agreements. Licensee may also contact Lumerical to obtain the current applicable provisions. Licensee’s breach of the applicable provisions of any such third party’s license terms shall also be considered a material breach of this license agreement. Notwithstanding Section 2 of this license agreement, and solely to the extent that the Software contains portions of an Open Source Element that is licensed under Version 2.1 of the GNU Lesser General Public License (“LGPLv2.1”), Licensee may (a) make modifications of the work identified in Section 6 of such LGPLv2.1, solely for Licensee’s own use, and may (b) reverse-engineer such work, solely for the purpose of debugging such modifications. Notwithstanding the foregoing, no provisions of any such third party’s license terms shall be deemed to waive or amend any of the terms and conditions of this license agreement. In the event of any conflict between the terms and conditions of this license agreement and the terms and conditions of any such third party license, the provisions of this license agreement will prevail.
  6. USE OPTION. The Software is composed of features as described in the Software documentation provided online by Lumerical, and such features are licensed according to one the following two options (the “License Model”). The applicable License Model (including the associated features, metrics, and limitations) will be specified in the applicable order documentation relating to the Software.
    1. Floating: Features of the Software may be time shared across a network, are licensed by quantity and the concurrent usage of such features is counted, and subject to license limitations, on either a user-host-display counted (“UHD Counted”) basis or on a concurrent-job counted (“Job Counted”) basis as indicated in the licensing materials found at https://www.lumerical.com/licensing/features. Each concurrent consumption of a UHD Counted feature within the Software may be used by a single end-user on a single computer (“Host”) using at most a single display for as many instances of such feature as desired, and otherwise in accordance with the terms and conditions of this license agreement. Each concurrent consumption of a Job Counted feature may be used for one instance, and otherwise in accordance with the terms and conditions of this license agreement. The floating option must be used for all types of computation that involves more than one Host. In addition, Licensee agrees to operate one of Lumerical’s current floating license management systems, including installing and running such required Lumerical license management software in the manner described in the Software documentation provided online by Lumerical and with the Software, which is used to enforce compliance with the different feature licenses. Any failure of the license management system to enforce compliance with the different types of feature licenses does NOT grant Licensee the right to violate the feature licensing.
    2. Node-locked: Licenses are locked to a designated host computer. Feature usage is further limited on either a UHD Counted basis or a Job Counted basis and may only be used as indicated in the licensing materials found at https://www.lumerical.com/licensing/features. UHD Counted features including parallel and multi-threaded features within the Software may be used by a single concurrent user on a single display on as many cores/processors of the single Host as desired, and otherwise in accordance with the terms and conditions of this license agreement. Job Counted features may be used for one instance, and otherwise in accordance with the terms and conditions of this license agreement. No usage that makes use of multiple Hosts, including Concurrent Computing or Distributed Computing, is supported. In addition, Licensee agrees to operate one of Lumerical’s current node-locked license management systems, which is used to enforce compliance with the different feature licenses. Any failure of the license management system to enforce compliance with the different types of feature licenses does NOT grant Licensee the right to violate the feature licensing.
  7. USE AREA. Unless otherwise authorized by Lumerical in writing, Licensee is restricted to using the Software only in such geographic territory for which Licensee orders the Software from Lumerical, as specified at the time the Software is ordered by Licensee.
  8. SUPPORT PLAN. Lumerical’s Software is provided with one of two support plans, namely a “Premium Support Plan” or a “Community Support Plan”. The support plan that applies to a particular license is specified in Section 1 (or in the Academic and Educational Addendum, if applicable). Both support plans include the following features, conditions and limitations (the “General Support Provisions”):
    General Support Provisions: Support is made available to one designated user (“Designated User”) per design environment feature licensed by Licensee and is included with the license rights under this license agreement during the term of this license agreement so long as (a) the Licensee is in full compliance with the terms and conditions of this license agreement, (b) the Software continues to be generally available for sale and license by Lumerical, (c) the Designated User’s request for support is for none other than the two most recent commercially-available releases of the Software, and (d) the Software has not been altered, damaged, or modified by Licensee. Designated Users can access: application and installation support via Lumerical’s online community forum provided Licensee agrees to abide by all then-current published terms of use (including those available at https://www.lumerical.com/terms-service/); and software updates, including major upgrades, made generally available by Lumerical for the Software from time to time. Licensee acknowledges and agrees that access to and use of such updates and upgrades shall be subject to Licensee’s agreement with the applicable license terms and conditions.The details of the Premium Support Plan and the Community Support Plan are as follows:

    Premium Support Plan:     In addition to the above General Support Provisions, the Premium Support Plan also includes: reasonable application support by phone (1.604.733.9006) and e-mail (support@lumerical.com) Monday to Friday from 9am to 5pm, Pacific Time (excluding statutory and bank holidays in Vancouver, British Columbia); reasonable installation support by phone (1.604.733.9006) and email (install@lumerical.com) Monday to Friday from 9am to 5pm, Pacific Time (excluding statutory and bank holidays in Vancouver, British Columbia); and, access to prototype and beta versions of new Lumerical products. In the event the availability of the Software is discontinued during the term of this license agreement or no longer generally available for license from Lumerical, Licensee may use the Software for the remainder of the term of this license agreement without access to Lumerical’s Premium Support Plan, and only access to the General Support Provisions.
    Community Support Plan: As per the General Support Provisions above (but for the avoidance of doubt excluding the items set forth under “Premium Support Plan”).
  9. API. Licensee is granted a limited, non-exclusive, non-transferrable license during the applicable term (as defined in Section 15) of this license agreement, to use the application programming interface for the Software (the “API”) and to make Permitted API Calls (defined below) solely for the purpose of (a) developing software applications and interfaces that integrate with the Software by making Permitted API Calls (“Licensee Applications”), and (b) using such Licensee Applications for Licensee’s internal use (the “API License”). For the avoidance of doubt, the API License does not include the right to, and Licensee shall not (i) make any calls to the API other than Permitted API Calls, or (ii) license, sublicense or otherwise distribute or make available any Licensee Application (or any software code relating thereto) to any third party for any purpose, in each case unless agreed to in a separate agreement with Lumerical. As used in this Section 9, “Permitted API Calls” means (i) the free API calls that Lumerical generally makes available to all licensees of the Software, and (ii) the additional API calls, if any, that are purchased by Licensee at the time the Software is ordered. The API License is subject to Licensee’s compliance with all of the terms and conditions of this license agreement, and will automatically terminate if Licensee’s license to the Software expires or is terminated for any reason.
  10. LICENSEE’S USE OF THIRD PARTY APPLICATIONS. Licensee shall not make any calls to the API using code or applications developed by a third party (“Third Party Application”), unless such code or application is listed on Lumerical’s list of approved third party applications available at https://www.lumerical.com/partners (each, an “Approved Application”) or prior written approval has been obtained from Lumerical. Licensee’s use of any Third Party Application is at Licensee’s sole risk. Licensee acknowledges and agrees that the inclusion of any Third Party Application on Lumerical’s list does not constitute a recommendation of such Third Party Application or provider thereof by Lumerical, and Lumerical makes no representations or warranties with respect to any Approved Application or its interoperability with the Software.
  11. WARRANTY. Lumerical warrants that: (a) it has the right to grant the license rights hereunder; (b) if applicable, the physical media (if any) provided for the Software shall be free from defects in material and workmanship for a period of ninety (90) days from delivery, or it will be replaced by Lumerical at no cost to Licensee; and (c) for a period of one (1) year from delivery or for the term of this license agreement, whichever is less, each copy of the Software provided by Lumerical will conform in all material respects to the description of the Software in the online software documentation provided by Lumerical with the Software. EXCEPT AS SET FORTH IN THIS AGREEMENT, LUMERICAL MAKES NO OTHER WARRANTY, REPRESENTATION OR CONDITION AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, LUMERICAL EXPLICITLY DISCLAIMS, AND LICENSEE ACKNOWLEDGES THAT IT HAS NOT RELIED ON, ANY WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OF ANY KIND WHATSOEVER WITH RESPECT TO THE SOFTWARE OR THE API PROVIDED UNDER THIS AGREEMENT, IN WHOLE OR IN PART, INCLUDING BUT NOT LIMITED TO TITLE, QUALITY, MERCHANTABILITY, WORKMANSHIP, HIDDEN DEFECT OR FITNESS FOR A PARTICULAR PURPOSE OR USE. LUMERICAL EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE OR THE API, IN WHOLE OR IN PART, WILL BE ERROR FREE, OPERATE WITHOUT INTERRUPTION, OR DELIVERED FREE OF ANY THIRD PARTY CLAIMS BY WAY OF INFRINGEMENT OR OTHERWISE. LUMERICAL DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR API IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. NEITHER THE SOFTWARE NOR THE API SHOULD BE RELIED ON AS THE SOLE BASIS TO SOLVE A PROBLEM WHOSE INCORRECT SOLUTION COULD RESULT IN INJURY TO PERSON, LOSS OF MONEY OR DAMAGE TO PROPERTY. IF THE SOFTWARE OR THE API IS RELIED ON IN SUCH A MANNER, IT IS AT LICENSEE’S OWN RISK. LUMERICAL AND ITS LICENSORS EXPLICITLY DISCLAIM ALL LIABILITY FOR SUCH USE OR RELIANCE TO THE EXTENT ALLOWED BY LAW.
  12. INTELLECTUAL PROPERTY INFRINGEMENT AND INDEMNITY.
    1. Subject to Sections 12(b), 12 (c), 13 and 14, and the rest of this Section 12 (a), Lumerical agrees to indemnify, defend and hold Licensee harmless from and against any injury, harm or damage resulting from any third party claim (a “Claim”) that the Software provided hereunder infringes a third party’s intellectual property rights in the relevant geographical territory to which the license rights under this license agreement apply. In the event that such a Claim of infringement is made, or in Lumerical’s opinion is likely to be made, or the use of the Software is enjoined or, in Lumerical’s opinion is likely to become the subject of an injunction preventing its use as contemplated herein, Lumerical will, at Lumerical’s expense and sole election, take any one of the following actions: (i) procure for Licensee the right to continue to use such Software; (ii) modify such Software so that it becomes non-infringing; or (iii) terminate this license agreement and Licensee’s rights to the Software and refund to Licensee that portion of licensee fees (if any) paid by Licensee for such license pro rata to the remainder of the applicable license term, up to a maximum available refund equal to the amount of license fees (if any) paid by Licensee to Lumerical under this license agreement in the preceding 12 month period. The foregoing states the sole and entire indemnity and liability of Lumerical and its affiliates with respect to infringement or Claims of infringement and is in lieu of any and all warranties, conditions and representations, express, implied or statutory, in regard thereto.
    2. The foregoing indemnity will not apply and Lumerical shall have no liability or obligation to Licensee with respect to any Claim to the extent such Claim is based upon or arising from: (i) use of the Software in an application or environment or on a platform or with equipment or devices for which the Software was not designed or contemplated to be used; (ii) modifications, alterations, combinations or enhancements of the Software not created by Lumerical; (iii) modifications, alterations, combinations or enhancements of the Software created by Lumerical as specifically directed by Licensee; (iv) modifications, alterations, combinations or enhancements of the Software (including without limitation Licensee Applications), whether or not created by Lumerical, that allow the Software to interoperate, integrate or interface with any third party software; (v) any patent, copyright, trade secret or other intellectual property right which Licensee or any of its affiliates owns or has exclusive rights to; (vi) failure of Licensee to install any corrections, enhancements, updates or upgrades to the Software made generally available by Lumerical; or (vii) Licensee’s continued use of the Software subsequent to receipt of notice of any Claim or potential Claim of infringement.
    3. Lumerical’s obligation to indemnify and hold harmless as set out above in Section 12 (a) is subject to the conditions that it is given prompt notice of any such Claims and it is given control of, and all requested and reasonable assistance for, the defense of such Claims.
  13. EXCLUSIVE REMEDY. In the event that the Software does not operate as warranted under this license agreement, Licensee’s exclusive remedy and Lumerical’s sole liability in connection with such warranty shall be, at Lumerical’s option: (a) the correction or workaround by Lumerical of major defects in the Software within a reasonable time; or (b) the termination of this license agreement and refund to Licensee of that portion of licensee fees (if any) paid by Licensee for such license pro rata to the remainder of the applicable license term, up to a maximum available refund equal to the amount of license fees (if any) paid by Licensee to Lumerical under this license agreement in the preceding 12 month period. All requests for warranty assistance should be directed to Lumerical at the e-mail address set forth in Section 8.
  14. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTHWITHSTANDING ANY OTHER PROVISION HEREIN, IN NO EVENT AND UNDER NO LEGAL THEORY SHALL LUMERICAL, ITS AFFILIATES, ITS LICENSORS OR ITS SUPPLIERS BE LIABLE TO LICENSEE FOR ANY COSTS OF SUBSTITUTE PRODUCTS, OR FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE LICENSE OF, USE OF, OR INABILITY TO USE ANY SOFTWARE, API OR DOCUMENTATION, EVEN IF LUMERICAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY LIABILITY OF LUMERICAL, ITS AFFILIATES, ITS LICENSORS OR ITS SUPPLIERS (WHETHER IN RELATION TO BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE) SHALL NOT IN TOTAL EXCEED THE AMOUNT OF LICENSE FEES (IF ANY) PAID BY LICENSEE TO LUMERICAL UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM IN QUESTION, FOR THE SOFTWARE WITH RESPECT TO WHICH THE LIABILITY IN QUESTION ARISES, AS INSTALLED IN ACCORDANCE WITH THIS AGREEMENT. THIS LIMITATION OF LIABILITY IS REFLECTED IN THE PRICE OF THE SOFTWARE LICENSE.
  15. TERM. The applicable term of this license agreement shall be as set forth by Lumerical at the time Licensee orders the Software from Lumerical, and shall correspond with the particular type of license (as described in Section 1) selected and, if applicable, paid for by Licensee at the time of such order.
  16. TERMINATION. This license agreement will terminate automatically upon Licensee’s failure to comply with any term or condition of this license agreement, including without limitation if Licensee has failed to pay any license fees due. Licensee shall not be entitled to any refund if this license agreement is terminated. Upon expiration or termination of this license agreement and the license rights granted hereunder, Licensee shall immediately cease all use of the Software (including by all authorized end-users) and promptly (a) return to Lumerical all but archival copies of the Software, or (b) provide written certification of the destruction of all copies of the Software. In addition to the foregoing, if this license agreement is for a Trial License (as described in Section 1), this license agreement may be terminated at any time, for any reason, by Lumerical. Sections 3, 4, 11, 13, 14 and 16 to 19 will survive any expiration or termination of this license agreement.
  17. TAXES, DUTIES, CUSTOMS. Absent appropriate exemption certificates or other conclusive proof of tax exempt status, Licensee shall pay all applicable sales, use, excise, value-added, and other taxes, duties, levies, assessments, and governmental charges payable in connection with this license agreement or the licenses granted hereunder, excluding taxes based on Lumerical’s income, for which Lumerical shall be solely responsible.
  18. MISCELLANEOUS. This license agreement, together with any applicable ordering documentation and addenda issued by Lumerical, sets forth the entire agreement, and supersedes all prior agreements, between Licensee and Lumerical, whether written or oral, relating to the subject matter of this license agreement. Any purchase order or similar document which is issued by Licensee in connection with this license agreement does not modify or prevail over this license agreement. No modification of this license agreement will be effective unless it is in writing, is signed by each party, and expressly provides that it amends this license agreement.
    Licensee shall comply with all applicable laws in connection with its use of the Software. The parties disclaim the application of the United Nations Convention on the International Sale of Goods. This license agreement is governed by the laws of the Province of British Columbia, Canada, and the federal laws of Canada applicable therein without reference to conflict of laws principles. All disputes arising out of this license agreement shall be litigated or otherwise resolved exclusively in the Province of British Columbia. Licensee may not export or re-export the Software or documentation without the appropriate Canadian or foreign government licenses. If any provision of this license agreement is ruled invalid, such invalidity shall not affect the validity of the remaining provisions of this license agreement.Licensee may assign this license agreement upon receipt of prior written consent from Lumerical and provided that, following such assignment, Licensee retains no copies and ceases all use of the Software, the assignee agrees to be bound by the terms of this license agreement, and Licensee provides written notice to Lumerical upon such assignment.
  19. IMPORTANT. PLEASE READ CAREFULLY.
    MONITORING AND COLLECTION OF INFORMATION. Licensee acknowledges that Lumerical shall have the right to monitor unlicensed or unauthorized use of the Software to enforce its lawful rights and this license agreement, and Licensee hereby consents thereto. By using the Software, Licensee further acknowledges and agrees that Lumerical may, during its operation, remotely monitor, transfer, and collect various data and information, including personally identifying data and information Licensee left (such as name, address, contact information), in any country, for purposes of (a) identifying such unlicensed or unauthorized use of the Software and identifying the user of such Software, and (b) detecting when an update or upgrade to the Software is available to Licensee and communicating with Licensee regarding such update or upgrade. Licensee hereby expressly consents to such information and data monitoring, transferring, and collection. For clarity, such information will not be transmitted to Lumerical except for the purposes identified in subsections (a) and (b) above. If Lumerical discovers any unauthorized use of the Software or other license violations, Licensee hereby acknowledges and agrees that Lumerical shall have the right to use and share such data and information with its sales representatives for the purpose of informing Licensee about the detection of unauthorized usage of the Software and breach of this license agreement.

Revised: June 30, 2020

Academic and Educational Addendum

This Academic and Educational Addendum (“Addendum”) relates to and forms a part of the Lumerical License Agreement (the “Agreement”), and the terms and conditions of this Addendum are incorporated therein. Capitalized terms used in this Addendum that are not defined in this Addendum are used as defined in the Agreement.

  1. Grant of License. In addition to the terms and conditions set forth in the Agreement, Software licensed to educational institutions at academic prices, or Software provided to educators for classroom- or workshop-based instruction is licensed under one of the following four License Types and is subject to the following qualifications and limitations:
    1. Academic License: With an Academic License, Licensee’s use of the Software in accordance with the license granted in the Agreement shall be limited to use of the Software for its internal data processing purposes solely for teaching, classroom work or academic research at accredited educational degree-granting post-secondary institutions expressly authorized by Lumerical. For the avoidance of doubt, use of the Software pursuant to an Academic License in connection with the development of proprietary intellectual property, such as patents, is prohibited and shall be a breach of the Agreement. Each Academic License is made available to Licensee in conjunction with the Premium Support Plan described in Section 8 of the Agreement.
    2. Academic KX Edition License: The same qualifications and limitations as the Academic License apply, but the Academic KX Edition License is instead provided with the Community Support Plan described in Section 8 of the Agreement.
    3. Academic Site License: The same qualifications and limitations as the Academic License apply, except with respect to the support plan. Each Academic Site License is made available to Licensee in conjunction with a support plan as described in Section 8 of the Agreement, it being understood that the applicable order documentation relating to the Software will specify the number of Designated Users that are entitled to the Premium Support Plan and the Community Support Plan respectively. Furthermore, Licensee understand and agree that Lumerical may identify Licensee as a client of Lumerical’s on Lumerical’s websites and customer lists using Licensee’s name and logos, and may reference the specific Licensee departments and laboratories that are using the Software.
    4. Teaching License: With a Teaching License, Licensee’s use of the Software in accordance with the license granted in the Agreement shall be limited to installation of the Software on up to the maximum number of computers expressly authorized by Lumerical, and use of the Software for its internal data processing purposes solely for the purpose of teaching and instruction in accredited educational degree-granting post-secondary institutions expressly authorized by Lumerical, or within a workshop, short course, edX course or training event expressly authorized by Lumerical. Use of the Software for any other purpose is prohibited and shall be a breach of the Agreement. Licensee shall ensure that all such computers on which the Software is utilized pursuant to a Teaching License are connected to the internet at all times that the Software is in use, unless otherwise authorized by Lumerical in writing. Lumerical reserves the right to and may, in Lumerical’s sole discretion, restrict or cancel a Teaching License at any time for any reason. Each Teaching License is made available to Licensee in conjunction with the Community Support Plan described in Section 8 of the Agreement.

Rev. September 5, 2017

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