Visual Numerics, Inc. Single User Software License Agreement IMSL® Fortran 6.0 Software License for Windows® (Intel Corporation) (May 2007)
IMPORTANT – READ CAREFULLY: THIS SOFTWARE LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND VISUAL NUMERICS, INC. IF YOU ARE INSTALLING THE SOFTWARE FOR PERSONAL USE, THIS AGREEMENT APPLIES TO AND BINDS YOU PERSONALLY. IF YOU ARE INSTALLING THE SOFTWARE AS PART OF YOUR WORK FOR AN ORGANIZATION, THIS AGREEMENT APPLIES TO AND BINDS SUCH ORGANIZATION. "LICENSEE" OR "YOU" AND "YOUR" REFER TO THE PERSON OR ENTITY THAT IS LICENSEE OF THE SOFTWARE. BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE THAT ACCOMPANIES THIS AGREEMENT, YOU OR SUCH ENTITY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU OR SUCH ORGANIZATION DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE, COPY OR INSTALL THE SOFTWARE, AND SHOULD, WITHIN THIRTY (30) DAYS OF PURCHASE, RETURN IT WHERE YOU OBTAINED THE SOFTWARE, FOR A FULL REFUND. THIS AGREEMENT RESTRICTS YOUR USE OF THE SOFTWARE TO A SINGLE COMPUTER, NOT EXCEEDING FOUR (4) MICROPROCESSORS. USE OF THE SOFTWARE ON A COMPUTER WITH MORE THAN FOUR (4) MICROPROCESSORS, OR ON A SERVER, DISTRIBUTED SERVERS OR A CLUSTER OF SERVERS IS NOT AUTHORIZED BY THIS AGREEMENT.
1. Definitions.
"Application(s)" means Your application(s) in object code created using a Development license (as defined below), which may or may not incorporate a file of the Software (as defined below).
"Computer" means primarily a single (but not to exceed four (4) processors with up to four (4) cores for each processor) computing device used by one (1) User (as defined below), and that utilizes IA-32, Intel® Itanium® or Intel® EM64T microprocessor technology.
"Copy" means a physical copy, as on a CD, or loading the Software or an Application into RAM or permanent memory of a Computer.
"Deploy" or "Deployment" means each time You make a Copy of Your Application available to a User of an Application Deployment license for use on Computer(s).
"Development" means a license for Internal use of the Software to create one or more Applications.
"Documentation" means printed, electronic or online documentation purchased from VNI or provided by VNI to licensees of the Software.
"Internal" means use is limited to Licensee, its employees, and contractors performing work for Licensee’s benefit, but not Licensee’s customers or other third parties.
"Site" is the single geographical location of the Computer on which the Software is first installed and used.
"Software" means VNI’s proprietary IMSL® Fortran software library for Windows, Version 6.0, in object code, and includes the Documentation.
"Students" means individuals enrolled in a degree-granting program at a degree-granting academic institution.
"User" refers (i) for Development licenses, to one (1) individual who will Internally use a Copy of Software on one (1) Computer for development of one (1) or more Application(s); and (ii) for Application Deployment licenses, to one or more individual user(s) of a Copy of Your Application(s) on one or more Computers.
"VNI" and "Licensor" mean Visual Numerics, Inc.
"Windows" means Microsoft Windows XP Products and Microsoft products compatible with Windows XP Products, and Microsoft Windows XP x64 Products and Microsoft products compatible with Windows XP x64 Products.
2. Development License. Subject to the terms and conditions of this Agreement, You are granted a perpetual, non-transferable, non-exclusive Development license to install one (1) Copy of the Software in object code for Internal use on one (1) Computer, for the sole purpose of allowing a single User unlimited runtimes of the Software to create and test one or more Applications. You may make a single backup Copy of the Software on one (1) Computer for archival purposes. You shall not make any Copies of the Software for use on any other Computer at the Site, on any Computer located outside the Site (except to access one (1) copy of the Software on a Computer’s memory for purposes authorized by this Agreement while off-Site for transitory, temporary business purposes), or on any other computing device for any purpose, including one or more servers, over a distributed server network, or in a cluster of servers. You shall not (x) allow more than one (1) User to use the Software or Documentation on more than one (1) Computer for development of Applications, (y) allow any User to use the Software or Documentation for any purpose except for development of Applications and (z) allow more than one (1) User to use the Software or Documentation on one (1) Computer, unless specifically authorized otherwise by VNI. The Software may be used by You for development purposes to: (xx) create Application(s) which use calls to compile and link to the Software; and (yy) Copy and use Applications containing statically linked bound executable object code modules from the Software; or (zz) copy and use Applications containing the run-time version (e.g., identified in PC Product as a ".dll" file) of any dynamically linked library ("DLL") contained in the Software.
3. Application Deployment License.
(a) Subject to the terms and conditions of this Agreement, You are granted a perpetual, non-transferable, non-exclusive, Application Deployment license to use, Copy and distribute Your Application(s), in object code, for use by Users with an unlimited number of runtimes on Computers. Notwithstanding the foregoing provision, and subject to the terms and conditions of this Agreement, if You are employed as a faculty or staff member by a degree-granting academic institution and have purchased a Development license for the Software, You are granted a perpetual, non-transferable, non-exclusive Application Deployment license to use, Copy and distribute your Application with an unlimited number of runtimes for non-commercial, educational purposes on Computers. An Application Deployment software license only allows You to execute (not develop, create or modify) one or more Applications developed using a VNI Development license for the Software.
(b) To the extent not prohibited by applicable state law, You agree to indemnify, hold harmless and defend VNI from and against any claims or lawsuits, including but not limited to attorney’s fees, that are based on the use, deployment or distribution of Your Application(s). You agree to use reasonable efforts to restrict Users of Your Application(s) from copying, sublicensing, modifying, reverse engineering, disassembling, decompiling, or redistributing the Software, or using Your Application(s) as an application development tool. You may not Deploy or distribute Your Application(s) (i) which consists of a development tool or utility program similar to the Software which contains the Software; or (ii) which includes, directly or indirectly, the Software Documentation; or (iii) which contains the programming interface derived from the Software; or (iv) for a fee unless you enter into a separate Application Deployment License agreement with VNI. You may not Deploy or distribute Your Application(s) via a server, network, file sharing mechanism or by means of any computing device which enables access to and use of the Software by multiple Users. Your Application(s) (yy) may not provide Your User(s) with an Application Programming Interface (API) which facilitates programmatic access to the developer version of any dynamically linked library (e.g., identified in PC Product as a ".lib" file) contained in the Software (i.e. in PC Product, in any form other than as bound executables); and (zz) may not be used to develop other software programs or applications.
4. Prices and Payment. Licensee shall pay license fees for the Software in accordance with the terms of Your license fee agreement with Intel Corporation. Licensee shall pay all taxes arising from or related to its license or use of the Software, excluding taxes based solely on VNI’s net income, provided that Licensee shall have no such tax obligation upon presentation of satisfactory evidence of its exemption from applicable taxes.
5. Limited Warranty and Limitation of Liability. VNI warrants that the Software will perform substantially in accordance with the Documentation for a period of thirty (30) days from the date of receipt. If You claim a defect in the Software under this warranty, you should return the Software during the warranty period to the distributor from whom You obtained the Software, or directly to Intel Corporation.
VNI’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS LIMITED WARRANTY SHALL BE, AT VNI’S OPTION, EITHER (1) RETURN OF THE PRICE PAID, OR (2) REPAIR OR REPLACEMENT OF THE SOFTWARE. THIS LIMITED WARRANTY IS VOID IF FAILURE OF THE SOFTWARE HAS RESULTED FROM ACCIDENT, ABUSE, IMPROPER INSTALLATION OR MISUSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VNI AND ITS RESELLERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
VNI WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOST SAVINGS), EVEN IF VNI OR ITS RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REGARDLESS OF THE BASIS ON WHICH YOUR CLAIM FOR DAMAGES AGAINST VNI, VNI’S ENTIRE LIABILITY TO YOU IS LIMITED TO NO MORE THAN THE AMOUNT YOU PAID FOR THE SOFTWARE. VNI WILL NOT BE LIABLE TO YOU FOR ANY THIRD PARTY CLAIMS OR DAMAGE TO OR LOSS OF YOUR RECORDS OR DATA.
This Agreement gives You specific legal rights. You may have others that vary by jurisdiction. In some jurisdictions exclusion or limitation of consequential or incidental damages, and/or exclusion or limitation of liability for personal injury, and/or limitations on duration of an implied warranty may not apply to You. This Agreement does not affect any statutory rights of consumers that cannot be waived or limited by contract.
6. U.S. Government. The Software and Documentation were developed at private expense and are "Commercial Items" as that term is defined at 48 CFR 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 CFR 12.212 or 48 CFR 227.7202-1 through 227.7202-4, as applicable. The Software and Documentation are licensed to U.S. Government end users only as Commercial Items and with only those rights granted to all other end users pursuant to the terms and conditions herein. The Software licensed to civilian agencies is licensed with Restricted Rights pursuant to FAR 52.227-19. The Software is unpublished - all rights reserved under the copyright laws of the United States and international treaties. The manufacturer is Visual Numerics, Inc., 2500 Wilcrest Dr., Suite 200, Houston, Texas 77042.
7. Infringement Claims. VNI will defend at its own expense, indemnify and hold You harmless in any action brought against You on a claim that the Software infringes any third party’s patent or copyright, provided that You promptly notify VNI in writing of such claim, VNI has sole control over the defense of the claim and/or any settlement negotiations, and You cooperate fully in the defense of the claim. VNI will pay those costs and damages finally awarded against You in any such claim. At its option, VNI may, in lieu of any other claims by You for indemnification, obtain the right for You to continue using the Software, or repair it, replace it or terminate this Agreement, including any licenses granted herein. The foregoing states VNI’s entire obligation to You for indemnification of third party infringement claims.
8. Term and Termination. This Agreement shall take effect as of the date of Your acceptance of this Agreement and shall continue in effect thereafter until terminated by either party. If You fail to comply with any material term or condition herein, VNI may, at its option, without prejudice to any other rights, terminate this Agreement and/or any license(s) granted herein (including all perpetual Development and Application Deployment licenses) if such default remains uncorrected thirty (30) days after notice is sent to Licensee. Following termination, You must return or destroy, as requested by VNI, all copies of the Software and Documentation in Your possession (whether modified or unmodified). You agree to certify Your compliance with such requirement upon VNI's request. Sections 1, 5, 7, 9, 10, and 11, and this survival clause, shall survive termination of this Agreement. Unless terminated by VNI for Licensee’s material breach in accordance with this Section 8, the Development and Application Deployment licenses granted pursuant to Section 2 and 3 of this Agreement shall survive any termination of this Agreement.
9. Confidentiality. You agree to maintain in confidence the confidential information of VNI, including any source code to any VNI software programs to which You have access. You further agree not to disclose such VNI confidential information to anyone other than Your employees or contractors who have a need to know or obtain access to such information in order to support Your authorized use of the Software who are bound, by a written agreement, to protect such information against any other use or disclosure.
10. Ownership. The Software and Documentation is copyrighted by Visual Numerics, Inc., and is licensed, not sold. VNI retains sole and exclusive ownership of all right, title, and interest in and to the Software and Documentation, and all copies thereof, subject only to the licenses expressly granted to You herein. This Agreement does not provide You with title or ownership of the Software and Documentation, but only a revocable license of limited use. Except as provided herein You may not rent, lease, loan, duplicate, distribute, publish, transfer, sublicense, or make the Software or Documentation available in any form to others. You may not reverse engineer, decompile, or disassemble the Software. You agree to reproduce any VNI proprietary and copyright notices concerning the Software on all copies of the Application that include VNI’s copyrighted works as authorized by this Agreement. IMSL and Visual Numerics are registered trademarks of Visual Numerics, Inc. in the U.S. and other countries. All rights reserved. All other trademarks are owned by their respective owners.
11. Miscellaneous. All notices or other communications required to be given hereunder shall be in writing and delivered via certified mail, Express Mail or Federal Express, return receipt requested, postage prepaid, at the recipient party’s last known address. Notices shall be deemed effective upon receipt. This Agreement shall be exclusively governed by and construed and enforced in accordance with the laws of the United States of America (for agreements with the U.S. government and claims relating to copyright and federal trademark issues) or by the laws of the State of California, U.S.A. (for contract and other matters), all without regard to conflicts of law provisions. The UN Convention for the International Sale of Commercial Goods is hereby excluded. The headings or titles of each section of this Agreement are for convenience only and shall have no legal effect. Non-enforcement of any provision hereof shall not operate as a waiver. This Agreement is the complete and exclusive statement of the agreement between VNI and Licensee and supersedes all proposals, prior agreements (oral or written) and all other communications between VNI and Licensee relating to the Software. Any purported assignment, transfer, sublicense, modification, addition or condition of acceptance (e.g. in a purchase order) of this Agreement by You is void, unless approved in advance by VNI in writing, except that You may transfer the Software and Documentation in its entirety to a successor in interest of Your entire business who assumes the obligations of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, then that provision notwithstanding, this Agreement shall remain in full force and effect and such provision shall be deemed omitted. You may not export the Software or Documentation to another country without VNI’s advance written consent. If VNI consents to Your export of the Software or Documentation, You agree to comply with all applicable export restrictions and laws. Additional licenses to use the Software and Documentation obtained by You subsequent hereto shall be subject to all the terms and conditions of this Agreement.