THIS IS A LEGAL AGREEMENT BETWEEN YOU AND LUMERICAL COMPUTATIONAL SOLUTIONS, INC. 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: As described in Section 20 below, accepting the terms and conditions of this license agreement and using the Software also operates as your consent to the collection and disclosure of certain information during activation and use of the Software. See Section 20 for more information.
1. GRANT OF LICENSE. Lumerical Computational Solutions, Inc. (“Lumerical”) grants to you (“Licensee”), a limited, non-exclusive, non-transferrable license to use, during the applicable term (as defined in Section 16) of this license agreement, the executable code version of the software product 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:
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, modify or translate the Software or any part of it. Licensee may not reverse engineer, decompile or disassemble 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; or (f) 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.
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 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/tcad-products/licensing/tpa.html. 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 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.
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”):
The details of the Premium Support Plan and the Community Support Plan are as follows:
9. API. Licensee is granted a limited, non-exclusive, non-transferrable license during the applicable term (as defined in Section 16) 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 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/software (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. RETURN POLICY. Licensee may receive a full refund of the license fees that it paid to Lumerical under this license agreement if within thirty (30) days from the date of delivery of the relevant Software by Lumerical (the “Acceptance Period”) Licensee terminates this license agreement for any reason and provides evidence to Lumerical that Licensee has uninstalled and deleted all copies of the Software.
12. 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.
13. INTELLECTUAL PROPERTY INFRINGEMENT AND INDEMNITY.
14. 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 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.
15. 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.
16. 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.
17. 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, except for license fees paid for any Software for which the Acceptance Period has not expired at the time of termination. 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, 12, 14, 15 and 17 to 20 will survive any expiration or termination of this license agreement.
18. 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.
19. 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.
20. IMPORTANT. PLEASE READ CAREFULLY.
MONITORING AND COLLECTION OF INFORMATION. Licensee acknowledges that Lumerical may 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 acknowledges and agrees that Lumerical may remotely monitor, transfer and collect various data and information, including personally identifying data and information, in any country, to identify unlicensed or unauthorized use of the Software and identify the user of such Software, and Licensee hereby consents thereto. For clarity, such information will not be transmitted to Lumerical unless the Software detects intentional and deliberate attempts to circumvent the terms of the license. If Lumerical discovers any unauthorized use of the Software or other license violations, Lumerical may 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.
Rev. February 17, 2017
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:
Rev. February 17, 2017