CLICKWRAP SOFTWARE LICENSE AGREEMENT FOR APP(s)
Please read the entire agreement before accepting.
CLICKWRAP SOFTWARE LICENSE AGREEMENT FOR APP(s)
Version September 21, 2018
BY CLICKING THE "I AGREE" BUTTON, LICENSEE'S AUTHORIZED REPRESENTATIVE
LEGALLY BINDS LICENSEE TO THE TERMS AND CONDITIONS SET FORTH BELOW
GOVERNING THE ACCESS TO AND USE OF THE ANSYS APP(s) (the "Program(s)").
***IF LICENSEE HAS PREVIOUSLY AGREED IN WRITING TO A SOFTWARE LICENSE
AGREEMENT WITH LICENSOR THAT SPECIFICALLY GOVERNS USE OF THE PROGRAM(s),
SUCH SOFTWARE LICENSE AGREEMENT SUPERSEDES AND REPLACES THIS CLICKWRAP
SOFTWARE LICENSE AGREEMENT, AND THIS CLICKWRAP SOFTWARE LICENSE AGREEMENT
IS VOID.***
If you have a previous written software license agreement as described in
the preceding paragraph, you may proceed by clicking the "I AGREE" button.
If you require a printed version of this Clickwrap Software License
Agreement prior to accepting these terms and conditions, please click "I DO
NOT AGREE" and go to Software License Agreement (PDF) link on the App(s)
Page, which you previously viewed to access the Program(s), to retrieve and
print this Clickwrap Software License Agreement.
READ THIS CLICKWRAP SOFTWARE LICENSE AGREEMENT ("AGREEMENT") CAREFULLY
BEFORE PROCEEDING. THIS IS A LEGALLY BINDING CONTRACT BETWEEN LICENSEE AND
LICENSOR FOR LICENSEE TO USE THE PROGRAM(S), AND IT INCLUDES DISCLAIMERS OF
WARRANTY AND LIMITATIONS OF LIABILITY.
BY CLICKING THE "I AGREE" BUTTON, LICENSEE'S AUTHORIZED REPRESENTATIVE
LEGALLY BINDS LICENSEE TO THE TERMS AND CONDITIONS CONTAINED IN THIS
AGREEMENT.
IF LICENSEE DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CLICK THE "I DO
NOT AGREE" BUTTON INDICATING NON-ACCEPTANCE, THEN LICENSEE MAY NOT USE THE
PROGRAM AND LICENSEE'S ORDER WILL NOT BE PROCESSED.
1. DEFINITIONS
A. "Affiliate" of a company means any person or other entity directly or
indirectly controlling, controlled by, or under common control of such
company.
B. "Channel Partner" means Licensor's Affiliates orpersons or other business entities that are authorized by Licensor
to distribute, support, or both distribute and support Program(s). Any
obligations of Licensor under this Agreement may be delegated to a Channel
Partner at Licensor's discretion.
C. "Contract User(s)" means an individual or entity, not a regular employee
of Licensee, who is engaged to
perform Licensee's internal data processing services.
D. "Designated Network" means the local area network identified per the
License Key, or, if the Program(s) are not controlled by a License Key, the
local area network/computer on which Licensee intends to install the
Program(s) as initially identified by Licensee to Licensor or Channel
Partner.
E. "Designated Site" means Licensee's physical location where use of the
Program(s) is authorized by Licensor.
F. "Effective Date of Program(s)" means the date specified in the License Key as the date access to the
Program(s) begins. If there is no License Key, then "Effective Date of
Program(s)" means the date on which Licensor provides the Program(s) to Licensee.
G. "LAN" means the Designated
Network(s); provided, however, that in order to qualify as a LAN, such
Designated Network must be a local area network which is accessed and used
only at the Designated Site or from Licensee's
facilities within a 25 mile or 40 km radius of the Designated Site and within the same country as
the Designated Site.
H. "Lease License" means a license which has a License Term commencing on
the Effective Date of Program(s) and limited in duration for a specified
period of time as set forth in a License Key or, for Program(s) not
containing a License Key, for the lesser of one (1) year or the Program(s)'
built-in expiration date, and which may renew pursuant to Section 3 below.
I. "License Key" means a software licensing management
and security tool or other device that Licensor uses to allow Licensee
access to the Program(s) and which may have an expiration date.
J. "License Term" means the period of time
during which Licensee is authorized to use Program(s) in accordance
with the applicable license grant, which if not specified shall be the
period as indicated in the License Key
K. "License Type" means the type of the
license granted for use of the Program(s)
. Unless otherwise indicated in writing by Licensor, the License Type
will be deemed to be a LAN
.
L. "Licensee" means the person or entity entering into this Agreement
through its authorized representative by clicking the "I AGREE" button and
who is authorized by Licensor to use the Program(s), including Licensee's
Affiliates.
M. "Licensor" means ANSYS, Inc. or an Affiliate of ANSYS, Inc. as indicated
by the ANSYS entity from which Licensee has obtained the license.
N. "Paid-Up License" means a license that has a License Term commencing on
the Effective Date of Program(s) and continuing in perpetuityunless earlier terminated in accordance with the terms of this Agreement.
Only Program(s) containing a License Key with no expiration date will
have a "Paid-Up License" License Term.
O. "Program(s)" means the software programs being installed pursuant to
this Agreement and as identified in the License Key, if applicable,
including any accompanying documentation and any Technical Enhancements to
such software programs.
P. "TECS" or "Technical
Enhancements and Customer Support " means the services described
in Section 9(b) below.
2. GRANT
(a) Subject to Licensee's continued compliance with the terms and
conditions of this Agreement, upon Licensee's clicking the "I AGREE"
button, Licensor grants to Licensee a
non-assignable, nonexclusive, nontransferable right and license, without
the right to grant sublicenses,
to use each Program(s) authorized hereunder for the number of simultaneous
licenses identified in the License Key or otherwise authorized by Licensor, for the License Term, and
within the scope of the License Type. Except as set
forth in Section 9(c), changes of the Designated Network are permitted only
with the prior written consent of Licensor and payment of any
administration fees. Nothing contained herein will be deemed to convey to
Licensee any title, ownership, copyright or any other intellectual property
rights in or related to Program(s)
, and Licensor reserves all rights in and to the Program(s) which are
not expressly granted in writing by Licensor to Licensee
. Licensee will not permit the use of the Program(s) by
persons other than its employees and its Contract Users. Licensee will
require the Contract User to (i) use the Program(s) consistent with
Licensee's use hereunder and solely for the benefit of Licensee and (ii) to
be bound by terms equivalent to those set out in this Agreement. Licensee
is responsible for the use of the Program(s) by all Contract Users.
Licensee will use the Program(s) only for Licensee's own internal data
processing purposes and will not make all or any part of any Program(s)
available to any third person other than Contract Users, including
without limitation, providing data processing services, serving as an
application service provider, or providing batch processing services.
Licensee's use of each Program(s) will be restricted to the Designated
Site.
(b) Licensee's license for the use of the Program(s) is further limited as
follows:
(i) Evaluation License: If, in Licensor's sole discretion given the
totality of the circumstances surrounding Licensor's provision of the
Program(s), Licensee has obtained the Program(s) for evaluation purposes
("Evaluation License"), then Licensee will only use the Program(s) for the
purpose of internal demonstration and evaluation, and not for production or
commercial purposes, in order to determine whether Licensee desires to
purchase a license for the Program(s).
(ii) Educational License: If, in Licensor's sole discretion given the
totality of the circumstances surrounding Licensor's provision of the
Program(s), Licensee is licensing the Program(s) for educational purposes
("Educational License"), then Licensee will not use or permit the use of
the Program(s) for commercial purposes, including but not limited to
consulting, and will only use the Programs for: student instruction;
student projects; student demonstrations; and research projects that are
non-proprietary Where Licensee is using the Program(s) for research
projects, Licensor may require Licensee to submit a Case Study at least one
month prior to the end of the License Term. The Case Study will be in
English, contain a title and an abstract, and include: (1) the purpose of
the study; (2) the approach used to conduct the study; (3) the results
obtained; (4) the conclusion as to the results obtained versus the
objective of the study; (5) how the Program(s) contributed to the study;
(6) three color graphics of the model and meshes; and (7) the Program(s)
input files or session log file. Large files should be submitted on a CD
ROM.
(iii) Commercial License (when provided by Licensor at no additional
charge): If, in the Licensor's sole discretion given the totality of the
circumstances surrounding the Licensor's provision of the Program(s),
Licensee is licensing the Program(s) for production purposes, then Licensee
will only use the Program(s) for Licensee's own internal data processing
purposes and only in concert with Licensee's licenses of other Licensor
software, which Licensor generally makes available to licensees for a fee,
for which Licensee has entered into a written software license agreement
with Licensor respecting Licensee's use of such other Licensor software.
(c) PROGRAM(S) MAY BE MANAGED BY LICENSE KEYS WHICH MAY LIMIT THE
PROGRAM(S)' USE AND REQUIRE LICENSEE TO OBTAIN NEW LICENSE KEYS FROM
TIME TO TIME.
(d) Licensor will provide Licensee access to the Program(s) via a License
Key for each Program(s) or via some other method provided by the Licensor.
Licensee will be responsible for installation of the Program(s). Licensee
may make copies of the Program(s) only as are necessary for Licensee's
back-up or archival purposes of such Program(s). The license granted to
Licensee by reason of this Section 2 applies to all copies of the
Program(s). In no event will Licensee remove or modify any copyright
notices or other proprietary markings contained within the Program(s) and
will ensure that such notices are reproduced within all copies of the
Program(s).
(e) Licensee will not modify the License Key provided with the Program(s)
in any way. Licensor may provide source code for certain components of the
Program(s), which shall be treated as Confidential Information under
Section 5. Licensee may only modify the portions of a Program(s) provided
in source code form. Except as expressly permitted by this Section 2(d) or
as required to be permitted by local law, Licensee will not (and will not
attempt to nor allow any third party to or attempt to) adapt, alter, amend,
modify, reverse engineer, decompile, disassemble or decode the whole or any
part of the Program(s) or translate the whole or any part of the Program(s)
into another language. To the extent that local law expressly grants or requires Licensor to grant
Licensee the right to decompile the Program(s) in order to obtain the
information necessary to render the Program(s) interoperable with other
computer programs used or to be created by Licensee, Licensor will make
such information available to Licensee and Licensee will not decompile (or
attempt to do so) the Program(s) without first requesting such information
from Licensor. Licensor will have the right to impose reasonable conditions
(such as the imposition of a reasonable fee) for making the information
available. In order to ensure that Licensee receives the appropriate
information, Licensee must first give Licensor sufficient details of
Licensee's objectives and other software concerned. All requests for the
appropriate information will be given by notice to be delivered in
accordance with the terms of this Agreement. Licensee may not create any
application programs that use the Program(s) unless otherwise permitted by
a separate written agreement executed by the parties.
(f) Licensee acknowledges that the Program(s) is subject to the export laws
of the United States of America and that the export, use, transmission or
other transfer of the Program(s) is governed by the laws and regulations of
the United States of America. Licensee agrees that it will not take,
export, or transmit the Program(s) to any other country, individual or
entity without Licensor's prior written consent, which consent Licensor may
grant or withhold in its sole discretion.
(g) If applicable, for Licensees that are United States Government
entities, except as specifically granted by this Agreement, use,
duplication or disclosure by the United States Government is subject to
restrictions stated in this Agreement and FAR 12.212 (for non-Department of
Defense licenses).
3. TERM AND TERMINATION
(a) Lease Licenses are non-cancelable by Licensee , will commence on the Effective Date of Program(s),
will have a term equal to the License Term, and at the end of the
License Term
will automatically renew at the then-current renewal fees set by Licensor
or Channel Partner, as applicable, for a
renewal term equal to the duration of the immediately preceding initial
or renewal term (as applicable)
unless Licensee, Channel Partner, or Licensor gives prior notice of their
intent to terminate the applicable Lease License
prior to the end of the initial or renewal term (as applicable)
. Notice shall be deemed given under this Section 3(a) in the event, except
as otherwise expressly indicated, that Licensor or Channel Partner does not
provide a renewal quotation or follow-on proposal for the Program(s) prior
to the renewal term or Licensee does not issue a purchase order or
otherwise arrange to make payment respecting licenses of such Program(s)
prior to the renewal term. In the event a Lease License is terminated prior
to the end of the term, no refund will be due to Licensee for any portion
of the prepaid Lease License fee.
(b) The license for a Paid-up License will commence on the Effective Date
of Program(s) and will be perpetual unless terminated as provided in
Section 3(c) below.
(c) Licensor may immediately terminate this Agreement and any Program(s)
license upon any of the following: (i) Licensee materially breaches any provision of this Agreement; (ii) Licensee
ceases to do business for any reason; (iii) Licensee has a receiver or
administrator appointed over all or part of its assets; (iv) Licensee
becomes subject to any bankruptcy, insolvency, reorganization, liquidation
or other similar proceedings, which proceedings are not dismissed within
fifteen (15) days thereafter; (v) the transfer of a majority of Licensee's
assets or outstanding voting securities (including, without limitation, by
way of merger of Licensee with or into any other person or entity), or the
sale of Licensee's business, or any other transaction or series of related
transactions in which the security holders of Licensee immediately prior to
such transaction(s) do not hold at least a majority of the outstanding
voting securities of Licensee immediately after the transaction(s); or (vi)
any attempted assignment of this Agreement by Licensee without prior
written approval by Licensor.
(d) If the license for Program(s) granted hereunder
is terminated for any reason, no refund will be due to Licensee and
Licensee will immediately uninstall the Program(s) from the computer(s) on which it is
installed and will certify to Licensor in writing that the Program(s) is uninstalled and all copies
thereof have either been destroyed or returned to Licensor or the Channel
Partner. Licensee will immediately return to Licensor or the Channel
Partner any confidential information or material provided to Licensee in
connection with the Program(s), unless otherwise specified by Licensor or
the Channel Partner.
4. PAYMENT
For sales of Program(s) licenses to Licensee directly by Licensor or its
Affiliates, Licensee agrees to pay the license fees for the Program(s) as
required by Licensor or its Affiliates. Except as otherwise agreed, for
such license sales by Licensor or its Affiliates, Licensee agrees to pay
the license fees for the Program(s) within thirty (30) days of the date of
invoice by Licensor or its Affiliates. In the event that Licensee does not
pay within the period indicated, Licensor or its Affiliate may charge
Licensee interest in an amount equal to 1.5% per month of the unpaid
balance.
For sales of Program(s) licenses to Licensee by Channel Partners other
than Licensor's Affiliates, payments
made by Licensee under this Agreement will be paid to the Channel Partner
unless Licensee is otherwise notified in writing by Licensor, in which
event Licensee agrees to make payments as specified by Licensor. Fees are
exclusive of all value added taxes, sales taxes, use taxes, and the like.
Licensee will pay all taxes associated with the Program(s), exclusive of
any tax based on the income of Licensor or the Channel Partner. If claiming
a tax exemption, Licensee must provide a valid tax exemption certificate.
5. CONFIDENTIAL INFORMATION
Licensee hereby acknowledges that the Program(s) embody confidential and
proprietary information,
including trade secrets, owned by Licensor or its Affiliates or suppliers . Licensee shall not disclose the Program(s) to any
third parties, except to the extent permitted by Section 2(a), and will use
the Program(s) only in accordance with the terms of this Agreement.
6. WARRANTIES; LIMITATION OF REMEDY
(a)
EXCEPT AS MAY OTHERWISE BE SEPARATELY AGREED IN WRITING BY LICENSOR,
THE PROGRAM(S) IS/ARE PROVIDED TO LICENSEE 'AS IS' WITHOUT WARRANTY OF
ANY KIND. LICENSOR AND THE CHANNEL PARTNER AND THEIR RESPECTIVE
AFFILIATES AND SUPPLIERS DISCLAIM ALL WARRANTIES, CONDITIONS, OR
REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO
THE PROGRAM(S) OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO ANY
AND ALL WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE
(whether or not Licensor or the Channel Partner and their respective
Affiliates and suppliers knows, has reason to know, has been advised, or is
otherwise in fact aware of any such purpose), whether alleged to arise by
law, by reason of custom or usage in the trade, or by course of dealing.
LICENSOR AND THE CHANNEL PARTNER AND THEIR RESPECTIVE AFFILIATES AND
SUPPLIERS DO NOT WARRANT THE ACCURACY OR APPLICABILITY OF THE RESULTS
OBTAINED THROUGH USE OF THE PROGRAM(S).
(b) No oral conversations, statements, representations, or other documents,
excluding a separately signed agreement between Licensor and Licensee, will
be offered by Licensee as evidence to explain, expand, alter, add to or
invalidate the above.
7. INDEMNIFICATION
(a) Licensor will defend at its expense any claim, suit or proceeding
(each, a "Claim") brought against Licensee by any third party to the
extent such Claim is based upon a claim that the Program(s) infringes
or conflicts with any rights of such third party under copyright laws
of any country that is a signatory to the Berne Convention; any
trademark issued under the laws of the United States, any State of the
United States or any member state of the European Union; or any trade
secret laws of the United States, any State of the United States or any
member state of the European Union. Licensor will pay all costs and
damages finally awarded against Licensee by a court of competent
jurisdiction as a result of any such Claim; provided, however, that
Licensee (i)
promptly notifies Licensor in writing of
such Claim; (ii) promptly gives Licensor the right to control and
direct the investigation, preparation, defense and settlement of such
Claim, with counsel of Licensor's own choosing (provided that Licensee
will have the right to reasonably participate, at its own expense, in
the defense of any such Claim); and (iii) gives assistance and full
cooperation for the defense of same. If a Program(s) is, or in
Licensor's opinion, might be held to infringe as set forth above,
Licensor may, at its option, (i) replace or modify the Program(s) so as
to avoid infringement, (ii) procure the right for Licensee to continue
the use of the Program(s), or (iii) terminate any licenses to the
Program(s) and/or this Agreement and require Licensee to return the
Program(s) to Licensor, in which event Licensor will refund to Licensee
a pro rata portion of the amounts paid for such Program(s). For a
Paid-Up License, such pro rata calculation will be based on
straight-line depreciation over a 36-month period following the
applicable delivery date.
(b) The foregoing indemnity will not apply to any Claim based upon or
arising from (i) use of the Program(s) in a manner for which it was not
designed or not in accordance with the accompanying documentation, if
any, (ii) use of the Program(s), when use of a subsequent software
release which Licensor has made available to Licensee would have
avoided such infringement; or (iii) Licensee's continued use of the
Program(s) subsequent to receipt of notice of any claimed infringement.
This Section 7 represents the sole and exclusive remedy of Licensee and
the entire liability and obligation of Licensor with respect to
infringement or claims of infringement or misappropriation of any
intellectual property right (including any trade secret) by Licensor or
by its operation, use or receipt of the Program(s).
8. LIMITATION OF LIABILITY AND INDEMNITY
(a) SUBJECT TO THE MAXIMUM EXTENT PERMITTED BY LAW,
LICENSOR, ITS AFFILIATES AND SUPPLIERS AND THE CHANNEL PARTNER WILL NOT
BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL,
PUNITIVE, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES OR LOSSES.
Regardless of whether or not the parties have been advised of the
likelihood of such damages or losses, said limitation of liability includes
but is not limited to: lost profits (whether direct or indirect); revenues;
anticipated savings; goodwill; business opportunities; wasted or lost
production and/or management's or employees' time; loss of or corruption of
software data, or database configuration; use of the Program(s) by
Licensee; inability of Licensee to use the Program(s); inaccurate output;
Licensor's breach of this Agreement; or any other
claim arising under or related to this Agreement whether in contract,
negligence, tort, or under any other theory of liability.
Excluding Licensor's indemnification obligations pursuant to Section 7, in
no event will Licensor's and its Affiliates', suppliers', and Channel
Partner's aggregate liability to Licensee or any third party exceed, the
greater of (a) in the case of a Paid-Up License, the license fee initially
paid for such Paid-Up License (not including any TECS fees or other fees)
or, in the case of a Lease License, the license fee paid for such Lease
License during the preceding twelve (12) months or (b) $5,000 USD. Licensee
acknowledges that given all the circumstances, the limits on Licensor's
liability are reasonable because of, among other things, the likelihood
that without those limitations the amount of damages awardable to Licensee
for a breach by Licensor or Channel Partner of this Agreement may be
disproportionately greater than the license fees paid or payable for the
Program(s). Licensee acknowledges it has taken out adequate insurance to
cover its risks under this Agreement. For the avoidance of doubt, Licensee
is entirely responsible for keeping full back up copies of its software,
data and database configurations in accordance with best industry practice.
(b) Each of Licensor's and its Affiliates', suppliers', and Channel
Partner's employees, agents, and sub-contractors may rely upon and enforce
the exclusions and restrictions of liability in this Section 8 in that
person's own name and for that person's own benefit, as if the words "and
their employees, agents, sub-contractors, and suppliers" followed the words
"Licensor's and its Affiliates', suppliers', and Channel Partner's"
wherever it appears in this Section 8.
(c) Notwithstanding anything to the contrary in this Agreement, neither
party limits its liability (if any) to the other party for any matter which
it would be illegal for that party to exclude or to attempt to exclude its
liability, but nothing in this clause confers any right or remedy upon the
other party to which it would not otherwise be entitled.
(d) The Program(s) is a mathematical analysis tool intended to assist
Licensee in Licensee's development and design processes and requires
considerable skill and judgment for its correct use and for the
interpretation of the computed results. The Program(s) is not intended to
be nor is it a substitute for rigorous and comprehensive prototype or other
testing by Licensee of products prior to production and sale. Licensee
agrees to defend, indemnify and hold Licensor and its Affiliates,
suppliers, and Channel Partners, along with its and their officers,
directors, employees and agents, (collectively, the "Indemnified Parties")
harmless from and against all losses, damages, liability (including
reasonable attorneys' fees) incurred by such Indemnified Parties as a
result of Licensee's use of the Program(s), including such losses, damages,
and liability resulting from the negligence of the Indemnified Parties;
provided, however that such indemnification obligations will not extend to
(i) claims for which Licensor is required to indemnify Licensee under
Section 7 or (ii) claims arising out of the Indemnified Parties' willful
misconduct.
9. TECHNICAL ENHANCEMENTS AND CUSTOMER SUPPORT (TECS)
(a) Except as otherwise agreed in writing by Licensor, TECS is not included
with the Program(s). Licensor may provide Customer Support and/or Technical
Enhancements at its sole discretion and may require Licensee to pay an
additional fee. Only in the event that Licensor indicates in writing to
Licensee that Licensor will provide TECS will the provisions of Section
9(b) and 9(c) apply.
(b) TECS will consist of (i) reasonable web page, forum, telephone or email
support ("Customer Support"); and/or (ii) Program releases or corrections
provided by Licensor without additional charge to Program licensees generally
("Technical Enhancements"). Customer Support will be provided by Licensor
or its designee in Licensor's discretion. Technical Enhancements will be
provided by Licensor at its discretion and at such times as determined
solely by Licensor.
(c) During the period of time during which Licensee is entitled to receive
TECS for a Program, Licensee may request three (3) replacement License Keys
due to a change of the Designated Network within one year from the TECS
effective date at no additional charge.
10. MISCELLANEOUS
(a) All notices required in this Agreement will be given in writing to all
parties and delivered by registered air mail, international air courier,
facsimile, or mutually agreed equivalent. Notices will be effective when
received as indicated on the facsimile, registered mail or other mutually
agreeable delivery receipt. All notices will be given by one party to the
other using the contact information indicated on the License Form or
Service Agreement, unless a change thereof previously has been given in
writing to the party giving the notice.
(b) Licensee will not assign this Agreement or individual Program(s)
license to any third party by operation of law, or in bankruptcy, or
otherwise without prior written consent of Licensor. This Agreement will be
binding upon and inure to the benefit of the parties hereto and their
respective successors, permitted assigns and permitted transferees.
(c) The provisions of Sections 2(e), 3(d), 4, 5, 6, 7, 8 and 10 will
survive termination of this Agreement or any individual Program(s) license.
(d) The rights and obligations of the parties hereto will be governed by
the substantive law of the Commonwealth of Pennsylvania, excluding the
United Nations Convention on the International Sale of Goods and choice of
law provisions.
(e) The parties hereto consent to the venue and jurisdiction of the federal
and state courts maintaining jurisdiction over Washington County,
Pennsylvania for purposes of any legal proceedings arising under or
relating to this Agreement.
(f) If any provision of this Agreement will be invalid, such provision will
be ineffective only to the extent of such invalidity without invalidating
the remainder of this Agreement.
(g) Any failure of any party to enforce any of the provisions of this
Agreement will not be construed as a waiver of such right of the party
thereafter to enforce each and every such provision.
(h) The benefits and burdens of, and risk of loss and damage to, Licensee's
copy of the Program(s) will remain with Licensor until the Program(s) is
received (physically or electronically) by Licensee.
(i) This Agreement constitutes the complete and exclusive statement of the
agreement between the parties and supersedes all proposals, oral or
written, and all other communications between the parties relating to the
subject matter of this Agreement. Except as specifically provided herein,
this Agreement may be modified only by a written amendment executed by duly
authorized officers or representatives of the parties. No purchase order or
any other standardized business forms issued by Licensee, and even if such
purchase order or other standardized business forms provides that it takes
precedence over any other agreement between the parties, shall be effective
to contradict, modify, or delete from the terms of this Agreement in any
manner whatsoever. Any acknowledgment, written or oral, 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.
(j) ANY OPEN SOURCE SOFTWARE DISTRIBUTED IS DISTRIBUTED SOLELY IN THE HOPE
THAT IT WILL BE USEFUL BUT IS PROVIDED "AS IS" WITHOUT ANY EXPRESSED OR
IMPLIED WARRANTY; INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL
LICENSOR, THE COPYRIGHT HOLDERS, OR THE CONTRIBUTORS BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES
(INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER
CAUSED AND ON ANY THEORY OF LIABILTIY, WHETHER IN CONTRACT, STRICT
LIABITLY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY
OUT OF THE USE OF THIS OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE
POSSIBILTIY OF SUCH DAMAGE.
(k) The parties have required that this Agreement and all documents
relating thereto be drawn up in English.
(l) Other than as specifically set forth herein, there will be no intended
or unintended third-party beneficiaries to this Agreement.
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