Software End User License Agreement
Last updated: April 07, 2020
Photon Engineering, LLC has developed an optical engineering analysis software called FRED® (the “Software”) for use by its customers who pay to license the Software. This End User License Agreement (the “Agreement”) is a legal agreement between Photon Engineering, LLC (“Photon Engineering”) and each end user (“You” or “User”) of the Software. This Agreement sets out the terms and conditions that govern your use of the Software. If You do not agree to comply with this Agreement, you may not install, download, or use the Software. By checking accept, when you access the Software, you are agreeing to comply with this Agreement.
1 OWNERSHIP OF SOFTWARE. Photon Engineering or its licensors as applicable own all rights, title and interest in the Software and those manuals, materials, information and documents in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software (“Documentation”), including all related Intellectual Property Rights. For purposes of this Agreement, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other laws protecting intellectual property, and all similar or equivalent rights or forms of protection, in any part of the world.
2 GRANT OF LICENSE. In exchange for payment of the license fee in the amount agreed upon by the parties in a quotation or purchase order and subject to your compliance with the terms of this Agreement, Photon Engineering grants to You a revocable, non-exclusive, non-sublicensable, non-transferable, limited license during the term (as defined in Section 6 below) to use the Software and Documentation for your internal business use. Except for this limited license granted to you in this paragraph, Photon Engineering, on behalf of itself and its licensors, reserves all rights in and to the Software and Documentation. We do not grant you any other licenses under this Agreement, whether by implication, estoppel, or otherwise.
3 PAYMENT. All License Fees are payable in advance in the manner set forth in the ordering documents issued by Photon Engineering and are non-refundable, except as may be otherwise set forth in this Agreement.
4 LICENSE RESTRICTIONS.
a. License Restrictions: Single-User License. This paragraph applies to You if You are seeking a single-user license to use the Software. The Software may be used by only one User at a time using the key to access the Software from a computer or other electronic device and provided that no other User is using the Software at the same time.
b. License Restrictions: Network Version. This paragraph applies to You if You are seeking to license to use the Software for multiple users on a single network. The Software may be simultaneously used by up to, but not exceeding, the maximum number of users authorized by the Software network hardware key. Your use of the Software is limited to the number of concurrent end-users for which you have obtained a license as set forth in a quotation.
c. General Restrictions. You must follow the general use restrictions set forth below when using the Software:
i. You must not permit another person or entity to use the Software beyond the scope of the license granted in this Section 2, or modify or defeat the license authorization protection scheme;
ii. You must not distribute copies of the Software;
iii. You must not remove any copyrights, trademarks or other proprietary notices or labels on the Software or the Documentation;
iv. You must safeguard the Software from infringement, misappropriation, theft, misuse or unauthorized access. You must promptly notify Photon Engineering if You become aware of any violation of Photon Engineering’s Intellectual Property Rights in the Software and Documentation and fully cooperate with Photon Engineering in any legal action taken by Photon Engineering to enforce its Intellectual Property Rights in the Software or Documentation;
v. You must not allow another person or entity under Your control to sublicense, loan, lease, distribute, publish, lend, sell, or rent the Software or any features or functionality of the Software, to any third party for any reason;
vi. You must not and must not allow any other person or entity to reverse engineer, decompile, decode, or disassemble the Software, or otherwise attempt to discover, derive, gain access to, or re-create the source code to the Software;
vii. You must not make any modification, adaptation, improvement, enhancement, translation, or derivative work of or to the Software or the Documentation;
viii. You must not take any action that would cause the Software or its contents to be placed in the public domain;
ix. You must not use the Software or Documentation to develop a competing product or service or for any other purpose that is to Photon Engineering’s commercial disadvantage;
x. You must not use the Software or Documentation for purposes of comparison with or benchmarking against products or services made available by third parties; or use the Software for purposes for which it is not designed; and
xi. You must not use the Software or Documentation in a way that violates any applicable international, federal, state or local laws, rules or regulations.
d. Upgrades. You must obtain additional licenses from Photon Engineering to be eligible for an upgrade to a subsequent version of the Software. If you license the upgrade, you may use the resulting upgraded product only in accordance with the terms of this Agreement. If the Software is an upgrade of a component of a package of software programs licensed as a single product, the Software may be used and transferred only as part of that single product package and may not be separated for use on more than one computer.
5 HARDWARE OR SOFTWARE KEY. When you license the Software, we provide you the right to access the Software through use of a hardware or software key. You are responsible for protecting the key from theft, loss, or misplacement. Photon Engineering recommends that You insure the key (at the value of Your Software license) from loss as You would any other asset of similar value. Photon Engineering will replace a hardware key that has become defective through no fault of the User. We may be unable to provide a new hardware or software key if you lose it and we will charge you for a replacement. If You damage a hardware key, Photon Engineering may, at its option, exchange the damaged hardware key for a new hardware key for a nominal fee to be determined by Photon Engineering.
6 SUPPORT SERVICES. Photon Engineering may offer support services that entitle the user to download and install software updates and access the Photon Engineering technical support team for help desk services during Photon’s regular business hours Monday through Friday, excluding holidays (“Support Services”). Support Services are only available during the applicable license term. One year of support services is included in the initial license fee. You may renew support services on an annual basis by paying the annual support services fee. Photon Engineering is under no obligation to offer You continuous support services after the expiration of the term of your license. Your failure to update Your Software to the most recent version may limit Your ability to receive the full benefit of the Support Services.
7 FEEDBACK. Any suggestions, comments or other feedback provided by You to us with respect to the Software (“Feedback”) will, as between You and Photon Engineering, constitute Photon Engineering’s sole and exclusive property, including all related Intellectual Property Rights. Photon Engineering will be free to use, disclose, reproduce, license and otherwise distribute, and exploit this Feedback as it sees fit, entirely without obligation to You or restriction of any kind.
8 TERM AND TERMINATION.
a. Term: The term of this Agreement commences on the date you pay the License Fees. This Agreement and the license granted under this Agreement shall remain in effect for the term set forth on the purchase order or until terminated as set forth in this Agreement. You may terminate this Agreement by ceasing use of and destroying the Software and Documentation and all related copies.
b. Termination for Cause. This Agreement will terminate automatically and immediately upon Your breach of this Agreement.
c. Termination for Insolvency Event. Photon Engineering may terminate this Agreement, effective immediately, if You file, or have filed against You, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, make or seek to make a general assignment for the benefit of Your creditors or apply for, or consent to, the appointment of a trustee, receiver or custodian for a substantial part of Your property.
d. Discontinue Use. Upon termination of this Agreement, You shall immediately discontinue the use of the Software, return the hardware keys to Photon Engineering and destroy such Software and Documentation.
e. Survival. Those provisions that, by their nature, are intended to survive termination, shall survive.
9 AS-IS; WARRANTY DISCLAIMERS: PHOTON ENGINEERING PROVIDES THIS SOFTWARE, DOCUMENTATION AND SUPPORT SERVICES “AS IS,” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES. PHOTON ENGINEERING EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE, THE DOCUMENTATION AND THE SUPPORT SERVICES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS. PHOTON ENGINEERING EXPRESSLY DISCLAIMS ANY WARRANTY THAT MAY ARISE BY REASON OF TRADE USAGE, CUSTOM, OR COURSE OF DEALING, AND YOU HEREBY EXPRESSLY WAIVE ANY AND ALL SUCH WARRANTIES. YOU ASSUME THE ENTIRE RISK AS TO SUITABILITY, RESULTS, AND PERFORMANCE OF THE SOFTWARE, DOCUMENTATION OR SUPPORT SERVICES. PHOTON ENGINEERING DOES NOT WARRANT THAT YOUR USE OF THE SOFTWARE OR ANY PORTION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE, WILL MEET YOUR REQUIREMENTS OR ANY PERFORMANCE OR RELIABILITY STANDARDS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, HARDWARE, APPLICATIONS, SYSTEMS, OR SERVICES, BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
10 LIMITATION OF LIABILITY.
a. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL PHOTON ENGINEERING, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES ARISING OUT OF OR RELATED TO THE LICENSE OR USE OF THE SOFTWARE, THE DOCUMENTATION, THE SUPPORT SERVICES OR THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER SUCH CLAIM ARISES IN TORT OR CONTRACT OR AT LAW OR IN EQUITY, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR IF PHOTON ENGINEERING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PHOTON ENGINEERING OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, DISTRIBUTION, OR DELIVERY OF THE SOFTWARE DOCUMENTATION OR SUPPORT SERVICES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY.
b. IN NO EVENT WILL PHOTON ENGINEERING’S AGGREGATE LIABILITY IN CONNECTION WITH THE LICENSE OR USE OF THE SOFTWARE OR THE DOCUMENTATION, THIS AGREEMENT OR ITS SUBJECT MATTER, EXCEED THE TOTAL AMOUNT PAID TO PHOTON ENGINEERING FOR THE SOFTWARE.
c. THE LIMITATIONS SET FORTH IN THIS SECTION 10 SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
11 INDEMNIFICATION. You shall indemnify, defend, and hold Photon Engineering and its officers, directors, employees and agents harmless from any and all third-party claims, damages, costs (including reasonable attorneys’ fees) or other losses arising from or relating to: (1) alleging that your use of the Software in combination with any other software, equipment, hardware, or tangible or intangible property not provided by Photon Engineering infringes upon the Intellectual Property Rights of any third party; (2) A material breach of this Agreement or (3) Your use of the Software, the Documentation or the Support Services in violation of the terms of this Agreement.
a. The entire liability of Photon Engineering, and Your sole and exclusive remedies under this Agreement, will be, at Photon Engineering’s option, Photon Engineering’s repair or replacement of the Software, or refund of the original license fee paid by You for the Software or the Support Services as applicable.
b. You agree that, because of the unique nature of the Software and the irreparable harm that may be caused by any breach of the provisions of this section and because of the inadequacy of monetary damages for such breach, Photon Engineering will be entitled, in addition to all other available rights and remedies, to temporary, preliminary, and permanent injunctive relief, without bond, from a court of competent jurisdiction to enforce the provisions of this section.
13 U.S. GOVERNMENT END USERS. This paragraph applies to U.S. Government End Users only. The Software is a “commercial item,” as that term is defined in Federal Acquisition Regulation (“FAR”) 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in FAR 12.212. Consistent with FAR 12.212, FAR 52.227-19, and DFARS 227.7202, the Licensed Software is licensed to any U.S. Government End Users, (i) only as a commercial end item, and (ii) with only those rights as are granted to all other End Users pursuant to the terms and conditions herein.
14 EXPORT. Your use of the Software shall comply with all applicable international, federal, state and local, laws, rules, regulations, orders, and other governmental restrictions regarding the export of software, technical data, or derivatives thereof. You agree that the import/export and customs laws and regulations of the U.S. shall apply to the furnishing and shipment of the Software, technical data, and any derivatives thereof, including the rules governing prohibition of export and re-export. You also agree that the Software will not be used for any purpose prohibited by United States law, including without limitation, for the development, design, manufacture, or production of nuclear missiles, or chemical or biological weapons. You will not knowingly forward, export or re-export any Software, technical data, and derivatives thereof, directly or indirectly, to any party involved in any such activities.
15 CHOICE OF LAW; JURISDICTION, AND RECOVERY OF FEES. This Agreement and any and all disputes arising from or in connection with the Software, the Documentation or the subject matter of this Agreement shall be governed by the laws of the State of Arizona without giving effect to any conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply and is expressly excluded. You irrevocably agree to the jurisdiction of the state and federal courts sitting in Tucson, Arizona. Any actions arising from or in connection with this Agreement or the Software or Documentation shall be filed in a state or federal court in the State of Arizona. Each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal proceeding. If a contested case arises under this Agreement, the prevailing party shall be entitled to seek reasonable attorney’s fees incurred in prosecuting or defending the contested case.
16 ASSIGNMENT. You may not assign your license rights in the Software or Documentation except in connection with the sale of all or substantially all of the assets or equity interests in your company, provided You, (a) retain no copies of the Software, (b) transfer all of the Software (including all component parts, the media and printed materials, any upgrades, this Agreement, and, if applicable, the Certificate of Authenticity), and (c) the recipient agrees to abide by all of the terms of this Agreement. If the Software is an upgrade, any transfer must include all prior versions of the Software and all of rights therein, if any.
17 CONTROLLING DOCUMENTS. The acceptance of any purchase order placed by You for the Software, if any, is expressly made conditional on Your assent to the terms of this Agreement. Photon Engineering agrees to furnish the Software only upon these terms and conditions and not those contained in Your purchase order.
18 NO MODIFICATIONS. This Agreement may not be modified without the prior written consent of the parties.
19 SEVERABILITY. If any provision of this Agreement is held to be ineffective, unenforceable, or illegal for any reason, such decision shall not affect the validity or enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances, and such provision shall be reformed only to the extent necessary to make it effective, enforceable, and legal under such circumstances.
20 NO WAIVER. Photon Engineering’s failure to exercise any of its rights or remedies under this Agreement, or otherwise by law, will not be construed as a waiver of Photon Engineering’s right to assert or rely upon those rights or remedies in the future.
21 ENTIRE AGREEMENT. This Agreement, together with the ordering documents issued by Photon Engineering, and any exhibits or amendments to this Agreement, contains the entire agreement and understanding between You and Photon Engineering, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.