Simutest, Inc. Software License Agreement
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE OPENING THIS MAGNETIC TAPE OR CARTRIDGE OR DISKETTE(S) PACKAGE. OPENING THIS PACKAGE INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THEM YOU SHOULD PROMPTLY RETURN THE PACKAGE UNOPENED AND YOUR MONEY WILL BE REFUNDED.
License Agreement Number: _____________
From: ____________ To: _____________
Whereas Simutest, Inc., (hereinafter called Licensor) and _________________, exclusive of its subsidiaries, (hereinafter called Licensee) have entered into an agreement calling for the acquisition or rental of certain software as described in the Exhibit A.
The software including subsequent updates, modifications, and releases is furnished for use under a non-transferable non-exclusive license.
Licensor agrees to grant and Licensee agrees to accept such License to use the software under following terms and conditions:
1.The Software License is furnished to Licensee for use only with the computer system as specified in Exhibit A without the right to copy, sell, sub-license, lease or otherwise transfer software or any portion there of or make it available for use by any other third party.
2.Legal title to and ownership of all software user manuals and any other supporting documentation and information delivered to Licensee by Licensor shall remain with the Licensor and shall be returned to Licensor upon termination of this agreement.
3.Licensee agrees that the Software constitutes proprietary information and trade secrets and therefore agrees to maintain in confidence and to use its best efforts to prevent and protect the software or any parts thereof from disclosure by its agents or employees to any third party.
4.This License shall become effective on the date of delivery of the Software and shall automatically terminate upon termination of the physical life of the referenced system or upon expiration of the license period. Licensor shall have the right to terminate any License granted hereunder (1) if the License fee has not been paid or (2) if Licensee fails to comply with any provision of this Software License agreement. Licensee agrees upon notice of such termination to immediately return or destroy the Software provided under such terminated License and all portions and copies thereof. Such termination shall not alter the obligations of Licensee under this Software License Agreement.
5.Licensee retains full control over and is solely responsible for the design of its equipment, systems and products. Licensor makes no warranties which extend beyond the descriptions contained in previously delivered specifications if any and Licensor make no warranties of merchantability in respect to the equipment systems and products derived or obtained by the manufacture, use or implementation of the Software whether used singly or in combination with other designs or products. Licensor shall not be liable for any special or consequential damages. Licensor makes no warranty that the equipment, systems or products derived or resulting hereunder will not infringe the claims of domestic or foreign patents and further do not warrant against infringement by reason of the use thereof in combination with other designs products or materials or in the operation of any process.
6.This agreement includes Exhibit A, List of Programs and Exhibit B, General Terms And Conditions, both attached hereto. This agreement constitutes the complete and entire agreement between the parties which supersedes all proposals or prior agreements oral or written, and all other communications between the parties relating to the subject matter of this agreement.
YOU MAY NOT USE COPY MODIFY OR TRANSFER THE PROGRAM OR ANY COPY MODIFICATION OR MERGED PORTION IN WHOLE OR IN PART EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS LICENSE.
IF YOU TRANSFER POSSESSION OF ANY COPY MODIFICATION OR MERGED PORTION OF THE PROGRAM TO ANOTHER PARTY YOUR LICENSE IS AUTOMATICALLY TERMINATED.
IN WITNESS WHEREOF the parties have hereto executed this software License Agreement this ____________ day of 2000.
Title:______________________________ Title: ______________________________
List Of Programs
The following is a list of programs provided under license to Licensee for use on the following computer and subject to the terms and conditions described in the Software License Agreement into which this exhibit is incorporated.
List Of Programs Provided:
CPU Model & Part No. Serial# or Location ID Number Program Version
General Terms And Conditions - U.S.A.
Simutest, Inc. (Simutest) and Licensee agree that the purchase and sale of the license of the Software listed on Exhibit A shall be in accordance with the Software License Agreement to which this exhibit is attached and the following terms and conditions.
Upon acceptance of Licensee's written purchase order and receipt of a copy of this Software License Agreement signed by an authorized representative of Licensee, Simutest shall deliver the Software to Licensee in any location in the United States f.o.b. shipping point. Shipping and insurance charges will be prepaid and added to the invoice as a separate item. Each shipment shall be considered a separate and independent transaction and payment, therefore, shall be made accordingly.
The total license fee is due Simutest thirty (30) days from the shipment date.
License fees are exclusive of all sales, use and like taxes. Any such tax as Simutest shall be required to collect or pay upon the licensing of Software shall be paid by Licensee to Simutest upon receipt of invoice.
THE PROGRAM IS PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH THE LICENSEE.
Simutest however, warrants that the Software will conform to its published documentation when shipped and for a period of ninety (90) days thereafter. If a nonconformity exists which significantly affects performance in accordance with such documentation and proper written notification has been provided to Simutest within such ninety (90) day warranty period Simutest's sole liability and Licensee's sole remedy shall be for Simutest to provide at no cost programming corrections by telephone and/or mail to correct such documented nonconformity.
Simutest shall not be responsible for maintaining Licensee-modified portions of the Software. Corrections for difficulties or defects traceable to Licensee errors or changes will be invoiced at Simutest's current standard rates for such services.
SIMUTEST SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF NOTICE HAS BEEN GIVEN OF THE POSSIBILITY OF SUCH DAMAGES.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.AFTER WARRANTY SUPPORT
Following the warranty period Licensee may continue to receive Software maintenance by execution of Simutest's standard Software Maintenance Agreement and payment of Simutest's current charge for such maintenance services.
6.UPDATES AND MODIFICATIONS
If Licensee does not contract for Software maintenance updates, new releases, modifications, and enhancements to the software will be made available to Licensee at Simutest's standard license fee. The use of such modifications shall be governed by the Software License Agreement.
In the event Licensee cancels or otherwise causes a cancellation of a purchase order or any part thereof Licensee agrees to pay Simutest a cancellation charge of five percent (5%) of the license fee for the Software.
Simutest shall not be liable for any damages or penalty for delay in performance of its obligations hereunder or for failure to give notice of delay when such delay is caused by the elements, acts of God, delay in transportation, delay in delivery, or performance by Simutest's vendors, shortages of materials, or labor, or any other causes beyond the reasonable control of Simutest.
9.COMPLIANCE WITH GOVERNMENT REGULATIONS
Regardless of any disclosure made by Licensee to Simutest of an ultimate destination of Software Licensee warrants that Licensee will not export Software either directly or indirectly without first obtaining any and all necessary approvals from the U.S. department of Commerce or any other agency or department of the United States Government as required.
Waiver of any breach or failure to enforce any terms of this Agreement shall not be deemed waiver of any other breach or right to enforce that may thereafter occur.
Licensee shall not assign this Agreement without prior written approval of Simutest and any attempt to assign any rights, duties, or obligations hereunder without such approval shall be void.