END USER LICENSE AGREEMENT
AWR Corporation ("AWR") licenses the Software (defined below) under the terms and conditions of this End User License Agreement ("Agreement"). This Agreement is a legal contract between you (if accepting in your capacity as an individual) or the legal entity you represent (such as your employer), if you are using the software on its behalf (“Customer”) and AWR.
BEFORE COMPLETING THE INSTALLATION PROCESS, CAREFULLY READ THIS AGREEMENT. BY SELECTING “I Agree” TO COMPLETE THE INSTALLATION PROCESS, CUSTOMER CONSENTS TO THE TERMS OF THIS AGREEMENT AND AGREES TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER DOES NOT WISH TO BECOME A PARTY TO THIS AGREEMENT AND BE BOUND BY ALL OF ITS TERMS AND CONDITIONS, SELECT “I Do Not Agree” TO CANCEL THE INSTALLATION PROCESS, DO NOT INSTALL OR USE THE SOFTWARE, AND DELETE AND DESTROY ALL COPIES OF THE SOFTWARE.
If both Customer and AWR have signed a software license agreement to obtain a license to use the Software, then that agreement supersedes this Agreement and will apply and govern Customer’s use of the Software.
Academic Institution means a degree-granting educational institution.
Designated Equipment means the specific computer on which the Software may be installed and used.
Designated Site means the specific Customer location or facility specified as the “designated site” on the Proof of License or, if the Proof of License does not specify a designated site, any facility owned or leased by Customer that is within a one-mile radius of the “Ship To” address specified on the Proof of License. Alternatively, in the case of a downloaded evaluation or personal license, the Designated Site is the address provided by Customer when registering for the license on AWR’s website.
Documentation means the user manual, reference manuals and other end user materials, in printed and electronic form, supplied by AWR for use with the Software.
Effective Date means the date on which Licensee accepts this Agreement by clicking on the “I Agree” button.
Instructor means an individual teaching at an Academic Institution.
Designated Number of Users means (i) for a floating license, the number of simultaneous users specified in the Proof of License, and (ii) for a locked license, only a single user.
Proof of License means the collective set of applicable documents authorized by AWR specifying the type of license granted to Customer under this Agreement and the other applicable terms, including the duration of the license. The Proof of License may be in the form of AWR’s invoice and other AWR documents that describe or specify the type of license granted to Customer, including a license activation file containing key codes.
Software means the AWR software provided with this Agreement, consisting of one or more of the following AWR software products: Microwave Office, Analog Office, Visual System Simulator, APLAC, Analyst and/or AXIEM, and any third party software products included in any of the foregoing (other than those which are provided subject to separate license terms as described below), in each case in machine-readable object code form, and including updates, upgrades, new versions and new releases provided by AWR, if any. AWR provides certain third party software subject to separate license terms either presented at the time of installation or otherwise provided with the Software (“Third Party Software”). Such Third Party Software is not included in the definition of the term “Software”.
Student means an individual enrolled or taking continuing education classes at an Academic Institution.
License Term means the period of time commencing on the date set forth in the Proof of License; provided, however, the license may not be activated until Customer accepts the terms of this Agreement and completes the installation process and continuing for the period of time specified in the Proof of License. If this Agreement is terminated earlier by AWR or Customer as provided herein, such period is deemed to have ended on the effective date of such termination.
2. Licenses and Restrictions.
a. License Type. The Proof of License specifies the type of license granted to Customer under this Agreement. If the Proof of License fails to specify the type of license granted to Customer, then the license type is evaluation.
1. Commercial License. For a commercial license, Customer receives either a “floating” license or a “locked” license, and that license is of either perpetual or fixed term. The Proof of License specifies whether the license is “floating” or “locked” and the term.
i. Floating License. If the license is a “floating” license, then subject to the terms and conditions of this Agreement, AWR hereby grants Customer, solely during the License Term, a non-exclusive, non-sublicensable, non-transferable license to (i) serve licenses from the network server identified on the Proof of License, reproduce and install the Software on computers at the Designated Site only for use by the Designated Number of Users and (ii) make an archival copy of the Software solely for emergency back-up purposes and for Customer’s internal business purposes, solely at the Designated Site or via a secure virtual private network or application sharing utility at the personal residences of Customer’s personnel whose normal permanent work location is the Designated Site. The number of simultaneous users of the Software may not exceed the Designated Number of Users and virtualization may not be used to increase the number of simultaneous users.
ii. Locked License. If the license is a “locked” license, then subject to the terms and conditions of this Agreement, AWR hereby grants Customer, solely during the License Term, a non-exclusive, non-sublicensable, non-transferable license to (i) reproduce and install the Software on the Designated Equipment solely at the Designated Site only for use and access by a single user at a time, (ii) make an archival copy of the Software solely for emergency back-up purposes and (iii) permit the single user to use the Software, only for Customer’s internal business purposes and solely on the Designated Equipment at the Designated Site. For avoidance of any doubt, a locked license does not permit access or use of the Software through any virtual private network application sharing utility, including, without limitation, VPN Client, VNC, Windows Remote Desktop or Webex. Customer shall not run the software on other than the Designated Equipment and Customer shall not run the software in a virtual machine environment.
2. Academic License.
i. Educational License. If the license is an educational license, then Customer’s license is either a floating license as set forth in Section 2.a(1)(i) above, or a locked license as set forth in Section 2.a(1)(ii) above, as specified in the Proof of License, for the License Term. Software may be used only for Customer’s own educational use, only by Students and Instructors at Customer’s Academic Institution, and use by contractors is not permitted. There is no right to access or use the Software for any commercial or industrial purposes, or any purpose that is not solely and strictly educational in nature, whatsoever. For avoidance of any doubt, academic licenses, including Student Install Option licenses, may not be transferred (including to other Students or to another Academic Institution).
ii. Academic Teaching License. If the license is an academic teaching license, then subject to the terms and conditions of this Agreement, AWR hereby grants Customer, solely during the License Term, a non-exclusive, non-sublicensable, non-transferable license to use the Software solely for instructional purposes in Customer’s department, college, or on a specific university campus, in each case, of an Academic Institution, depending on the option selected in the Proof of License applicable purchase order. A use will be considered as one for “instructional purposes” only if such use meets either of the following criteria: (i) a common exam is given to Students at the end of a semester or other academic period and the exam relates (in whole or part) to the Students′ use of the Software or (ii) homework or similar projects requiring the use of the Software are used for grading in lieu of an exam. Customer may install the Software on no more than the number of Customer’s Academic Institution′s Designated Equipment items (located within the applicable department, college, or specific university campus) specified by AWR in writing in the Proof of License. If any of the Designated Equipment items on which the Software may be installed is a laptop, notebook or similar portable computer, Customer may use the Software on the portable computer while temporarily away from Customer’s Academic Institution’s classroom, lab, or other facilities for the same purpose permitted by this Agreement as Customer normally would use the Software on the portable computer while in such facilities. Without limiting the generality of the foregoing, any use of the Software by any person who is not an Instructor at Customer’s Academic Institution or any use for research, commercial, or industrial purposes under this Agreement is prohibited.
iii. Student Install Option. If the license is an academic teaching license with a student install option, then subject to the terms and conditions of this Agreement, AWR hereby grants Customer, solely during the License Term, a non-exclusive, non-sublicensable, non-transferable license to make the Software available (i) to no more than the total number of Students specified by AWR in writing in the Proof of License, each of which Students must be then currently enrolled at the applicable department, college, or specific university campus of Customer’s Academic Institution specified by AWR in writing in the Proof of License applicable quote or other offer documents, (ii) for use by each such Student only for his or her own personal education purposes and not for any other purpose, including research, professional, commercial, or industrial purposes, on up to three items of Designated Equipment. The applicable student install option license will automatically expire upon the conclusion or termination of the applicable Student′s enrollment at Customer’s Academic Institution; upon any such expiration, the Student must promptly uninstall all copies of the Software.
iv. Academic Research Option. If the license is an academic research license, then subject to the terms and conditions of this Agreement, AWR hereby grants Customer, solely during the License Term, a non-exclusive, non-sublicensable, non-transferable license to use the Software solely for academic research purposes in Customer’s department, college, or on a specific university campus, in each case, of an Academic Institution, as specified in the Proof of License. Customer may install the Software on no more than the number of Customer’s Designated Equipment items specified by AWR in writing in the Proof of License. If any of the Designated Equipment items on which the Software may be installed is a laptop, notebook or similar portable computer, Customer may use the Software on the portable computer while temporarily away from Customer’s institution’s classroom, lab, or other facilities for the same purpose permitted by this Agreement as Customer normally would use the Software on the portable computer while in such facilities. Customer must purchase separate maintenance for the Software to maintain the license.
3. Evaluation License. If the license is an evaluation license, then subject to the terms and conditions of this Agreement, AWR hereby grants Customer, solely during the License Term, a non-exclusive, non-sublicensable, non-transferable license to (i) reproduce and install the Software on the Designated Equipment solely at the Designated Site only for use and access by a single user at a time, (ii) make an archival copy of the Software solely for emergency back-up purposes and (iii) permit the single user to use the Software, only internally and solely to evaluate the Software for determining whether to license it from AWR on a non-evaluation basis. Customer has no right to use the Software for any commercial purpose, including in commercial or industrial production or, in the case of beta software, for the purpose of testing the functionality of the Software. SOFTWARE LICENSED UNDER AN EVALUATION LICENSE MAY NOT BE FULLY FUNCTIONAL, AND CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE. AWR HAS NO OBLIGATION TO UPDATE OR SUPPORT THE SOFTWARE.
4. Personal License. If the license is a personal license, Customer must be an individual (i.e., a natural person), and subject to the terms and conditions of this Agreement, AWR hereby grants Customer, solely during the License Term, a non-exclusive, non-sublicensable, non-transferable license to (i) reproduce and install the Software on the Designated Equipment for use and access only by Customer, (ii) make an archival copy of the Software solely for emergency back-up purposes and (iii) use the Software for Customer’s own purposes. There is no right for anyone other than Customer to access or use the Software for any purposes whatsoever.
b. Documentation License. Subject to the terms and conditions of this Agreement, AWR hereby grants Customer, during the term of this Agreement, a non-exclusive, non-sublicensable, non-transferable, license to use and reproduce a limited number of copies of the Documentation solely in conjunction with Customer’s licensed use of the Software. Customer shall not modify or create any derivative works of the Documentation without written permission of AWR. Customer shall not distribute the Documentation.
c. Additional Restrictions. In addition to any restrictions stated elsewhere in this Agreement, the following restrictions apply.
1. Use and Users. The Software may not be used for any purpose other than its ordinary intended purpose as a software tool for use in Customer’s design and verification of its circuits, components, products, subsystems and systems as appropriate for the particular Software item.
2. Third Parties’ Use. Customer may permit (i) Customer’s parents, subsidiaries, or affiliates located at the Designated Site and (ii) contractors to use Software (such (i) and (ii) collectively the “Permitted Third Parties”). Customer hereby agrees and acknowledges that Customer will be liable for any and all actions or omissions of Permitted Third Parties with respect to the use of the Software, as if such actions or omissions were Customer’s own. In addition, Customer’s contractor (i) must agree in writing that the Software shall be used solely in accordance with this Agreement and solely for Customer’s benefit and that the contractor is liable to AWR for any breach by contractor of this Agreement and (ii) must not be a competitor of AWR.
3. Locked and Floating Licenses. For a locked license, the Software may only reside on the Designated Equipment that is physically located at the Designated Site. For a floating license, Customer may serve licenses from a different network server computer from the one identified on the Proof of License only with AWR’s prior written approval. If approval is given, Customer must remove the license server software from the prior network server computer on which it was installed, and the new network server computer will become the permitted network server computer for purposes of this Agreement (including the Proof of License).
4. Other Restrictions. Unless explicitly permitted in this Agreement, Customer shall not (i) permit any third party to use the Software; (ii) copy, sublicense, disclose, distribute, lend, rent or lease the Software or Documentation; (iii) use the Software or Documentation for third-party training without prior written permission from AWR or on any time-sharing basis (whether commercial or non-commercial); (iv) use, separately from the Software, any components, models or libraries included in the Software or otherwise provided by AWR; (v) take any action that results in any of the Software being subject to a license that requires, or purports to require, as a condition of use, modification, or distribution, that (a) the code that is or could become subject to the license, be disclosed or distributed in source code form or (b) others have the right to modify or create derivative works of the code that is or could become subject to the license; or (vi) directly or indirectly, export, re-export, download, transmit, or ship the Software or Documentation in violation of Section 12.c or otherwise in violation of any applicable laws or regulations, including those of the U.S. or the jurisdiction in which Customer uses or downloads the Software. All uses of the Software shall be in accordance with the applicable Documentation and not in any manner intended to or that circumvents such Documentation or the intent of this Agreement. Except as expressly permitted in this Section 2, under no circumstance is “floating”, shared, or concurrent use of the Software, or remote accessing of the Software, permitted under this Agreement. The use of the Software is intended only for use with content that has been properly licensed by the Customer or any content owned by the Customer. Customer may require a patent, copyright or other license from a third party to create, copy, download, record or save content files for use with this Software or to serve or distribute such files to be used with the Software. Customer shall only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions in which it uses the Software and Documentation, including applicable restrictions concerning copyright and other intellectual property rights. Customer shall not use the Software in an attempt to, or in conjunction with any device, program or service designed to, circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.
d. Proprietary Rights Notices. Customer shall not remove, deface or obscure any copyright or other proprietary notices appearing on or within the Software or Documentation. Customer shall include reproductions of the copyright and other proprietary notices on all copies of the Software and Documentation made by or for Customer. For patents covering AWR products, refer to https://www.awr.com/patent-notice. AWR, Microwave Office, Analog Office, Visual System Simulator and AXIEM are trademarks of AWR. Refer to https://www.awr.com/awr-trademarks-and-logo-guidelines for more information about AWR trademarks.
e. Reverse Engineering; Modifications. Customer shall not cause or permit (i) the disassembly, decompilation or reverse engineering of the Software or any other attempt to gain access to or discover the source code for the Software (or the underlying ideas, algorithms, structure or organization of the Software) except to the extent that such restriction is expressly prohibited by applicable law or (ii) the modification, adaptation, translation or creation of derivative works based on the Software.
f. Key Codes; Deactivation. Customer shall only access the Software using a key code created by AWR that is provided directly to Customer by AWR. Customer shall not use the Software in any manner without that key code. AWR reserves the right to update or replace the key code periodically or implement an alternative licensing protection mechanism. Customer shall comply with any alternative licensing protection mechanism that may be subsequently implemented by AWR. Customer shall not distribute, make accessible, transmit or provide any key code to any third party or make it available to the public, use or attempt to use the key code other than for the Software for which it is provided by AWR to Customer, or take any action to circumvent any key code system or alternative licensing protection mechanism. Any action by Customer (including any employee of Customer) in contravention of this paragraph is a material breach of this Agreement. THE SOFTWARE MAY CONTAIN CODE THAT WILL, AFTER TERMINATION OR EXPIRATION OF THE LICENSE TERM, DEACTIVATE THE SOFTWARE AND RENDER THE SOFTWARE UNUSABLE. ALTHOUGH THE SOFTWARE MAY WARN YOU OF THE TIME-FRAME IN WHICH IT WILL BE DISABLED, YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE MAY BE DEACTIVATED OR RENDERED UNUSABLE WITH OR WITHOUT WARNING AND THAT YOU MAY NOT BE ABLE TO ACCESS ANY CONTENT (INCLUDING YOUR DEVELOPMENTS) THAT ARE SAVED WITHIN THE SOFTWARE.
3. Support. Any software maintenance services and other software support services provided by AWR for the Software are subject to AWR’s then current applicable standard software support policies.
a. License Fees and Taxes. Customer shall pay the license fees set forth in the Proof of License, if any, and all associated taxes.
b. Payments. Except as otherwise set forth herein, all amounts due must be paid within the payment period specified on the Proof of License in the currency specified by AWR. If no period is specified, then the due amounts must be paid within thirty (30) days of (i) invoice or (ii) the Effective Date, if there is no invoice. Customer agrees to be responsible for payment of this debt to creditor or its assigns. In the event of default, Customer is responsible for reasonable attorney’s fees and court costs incurred to recover amounts due. If the account is placed with a collection agency, the undersigned is responsible for all collection costs incurred, including, but not limited to, all collection fees or contingency fees of up to 33.3% added by a third party to the original or referral balance, service charges, and/or interested as allowed by the law. AWR may report information about your account to the proper credit bureaus. Late payments, missed payments, or other defaults on Customer’s account may also be reflected in its credit report.
5. Protection of Licensed Materials; Feedback; Compliance.
a. The Software and Documentation, and all copies of the Software and Documentation, are owned by AWR or its suppliers or licensors and are protected by applicable copyright laws and international treaty provisions. Customer hereby acknowledges and agrees that the Software and Documentation (and all copies thereof) are the copyrighted and proprietary property of AWR or AWR’s licensors. AWR and its licensors retain all right, title and interest, including intellectual property rights, in and to the Software and Documentation and any corrections, enhancements, or other modifications to the Software. AWR’s licensors are third party beneficiaries of Customer’s compliance with this Agreement to the extent of their respective interests. Customer acknowledges that the Software is licensed, not sold, and that the license granted under this Agreement provides Customer only with a limited right to use the Software under the terms and conditions of this Agreement. There are no implied rights. All rights not expressly granted by AWR to Customer are hereby reserved by AWR. Further, and without limiting the foregoing, no license or any right of any kind (whether by express license, implied license, the doctrine of exhaustion, or otherwise) is granted under any AWR patents (whether identified herein or not) or other intellectual property right of AWR with respect to any other products of AWR or of any third party, including the right to use any of these other products.
b. Customer agrees that any feedback regarding Customer’s use of the Software that Customer discloses to AWR, including errors or bugs that Customer might find and any changes or suggested changes to AWR′s current or future products and services (collectively “Feedback”), shall be received and treated by AWR on a non-confidential and unrestricted basis, notwithstanding any restrictive or proprietary legends to the contrary accompanying or otherwise associated with the Feedback. Customer hereby grants to AWR a worldwide, royalty-free, non-exclusive, perpetual, and irrevocable license to use, copy, and modify Feedback for any purpose, including incorporation or implementation of such Feedback into AWR products or services, and to display, market, sublicense and distribute Feedback as incorporated or embedded in any product or service distributed or offered by AWR.
c. Customer agrees to make all applicable records available for review by AWR during Customer’s normal business hours so as to permit AWR (upon reasonable notice to Customer) to verify Customer’s compliance with the terms and conditions of this Agreement. Further, if Customer is a business or other entity, Customer agrees that upon the request of AWR or AWR’s authorized representative, Customer will promptly document and certify in writing to AWR that Customer and Customer’s employees′ use of the Software complies with the terms and conditions of this Agreement.
6. Customer Experience Improvement Program. The software may collect statistics on the capabilities used and report those to AWR, which uses them to improve the performance and capabilities of the software. Commercial and Personal license Customers can decline participation in this program when using production software; beta software, academic license and evaluation license users cannot. This process does not collect or communicate any proprietary application data.
7. Software Updates, Error Reporting, and License Compliance. Customer agrees that the Software may collect and communicate certain software, hardware, and use information to AWR or its service providers’ servers for the purposes of (i) checking for and performing any updates, (ii) documenting application errors (such as crashes), (iii) ensuring that Customer has complied and is complying with the terms and license conditions in this Agreement, including Customer’s use of valid software key codes, and (iv) AWR's internal product development. This process does not collect or communicate any proprietary application data. AWR will not provide any information gathered in connection with this process to any third party except (i) as may be required by law or legal process or (ii) to enforce compliance with this Agreement and the key code requirement described above.
8. Limited Warranty.
a. Limited Warranty. Software provided under an evaluation or academic license is provided without warranty. For all other Software, AWR warrants, for Customer’s benefit alone, that for a period of thirty (30) days from the date the Software is shipped to Customer (or, if downloaded, from the date the Software is first downloaded by Customer) (i) the Software will perform substantially in accordance with the applicable Documentation and (ii) the medium on which the Software is recorded will be free from defects in materials and workmanship under normal use and service ("Limited Warranty"). Any replacement Software will be warranted for the same period. Some states/jurisdictions do not allow limitations on duration of an express or implied warranty, so the above or any other limitation provided herein may not apply to Customer. In such event, such warranties are limited to the minimum warranty period allowed by applicable law. The Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, third party products (i.e., hardware or software) used by Customer that are not intended by AWR for use with the Software, utilization of an improper hardware or software key (if applicable), any use of the Software other than as permitted by this Agreement or unauthorized maintenance of the Software.
b. Customer Remedies. AWR’s sole obligation (and Customer’s sole remedy) with respect to the foregoing Limited Warranty shall be to, at AWR′s option, return the fees paid by Customer to AWR, in which event Customer must return or destroy all copies of the Software in accordance with AWR′s reasonable instructions and the license granted to Customer shall terminate without liability on the part of AWR by reason of such termination, or repair or replace the Software, provided that AWR receives written notice of applicable defects during the warranty period. Customer hereby agrees not to bring an action to enforce Customer’s remedies under the foregoing Limited Warranty, or for breach of warranty, more than one (1) year after the accrual of such cause of action.
c. No Other Warranties. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.A, NO WARRANTIES, EITHER EXPRESS OR IMPLIED ARE MADE WITH RESPECT TO THE SOFTWARE, THIRD PARTY SOFTWARE OR SOFTWARE SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THERE ARE NO OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. AWR DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT RELATING TO THE SOFTWARE, THIRD PARTY SOFTWARE, AND THE SOFTWARE SERVICES. AWR DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE SOFTWARE OR SOFTWARE SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE OR SOFTWARE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. AWR’S LICENSORS MAKE NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER AND SHALL HAVE NO LIABILITY TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT.
9. No Obligation for Third Party Claims. AWR has no obligation, responsibility or liability whatsoever to defend, indemnify or hold Customer harmless from or against any third party claims, suits or actions related to, arising out of or connected with the use of the Software or Customer’s exercise of the licenses granted in this Agreement (including, without limitation, any patent, copyright or other intellectual property infringement claims) or for any damages, losses, liabilities, settlement amounts, costs or expenses related to those third party claims, suits or actions.
10. Limitation of Liability.
a. Limitation of Damages. NEITHER AWR NOR ITS LICENSORS, SUPPLIERS OR DISTRIBUTORS ARE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, OR ANY DIRECT DAMAGES IN EXCESS OF THE LICENSE FEES PAID BY CUSTOMER HEREUNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE USE OR INABILITY TO USE THE SOFTWARE OR THIRD PARTY SOFTWARE, OR ANY SUPPORT SERVICES RELATING TO THE SOFTWARE OR THE THIRD PARTY SOFTWARE, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OF AWR OR OTHERS), AND EVEN IF AWR OR ITS LICENSORS, SUPPLIERS OR DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, some of the preceding limitation may not apply to Customer.
b. Allocation of Risk. The sections on limitation on liability, warranties and disclaimer of warranties allocate the risks in this Agreement between the parties. This allocation is an essential element of the basis of the bargain between the parties. Moreover, Customer acknowledges that the amounts payable hereunder are based in part on the limitations of this Section 10, and hereby agrees that these limitations will apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder. The foregoing limitations will apply to the maximum extent permitted by law.
c. WARNING. THE SOFTWARE AND SERVICES ARE NOT DESIGNED, MANUFACTURED, OR TESTED FOR USE INHAZARDOUS ENVIRONMENTS OR ANY OTHER ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, AIR TRAFFIC CONTROL SYSTEMS; LIFE SAVING OR LIFE SUSTAINING SYSTEMS OR SUCH OTHER MEDICAL DEVICES; OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, SEVERE PROPERTY DAMAGE, OR ENVIRONMENTAL HARM. CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD AWR AND ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, LIABILITIES, DAMAGES, ACTIONS (INCLUDING LAWSUITS, ARBITRATIONS, AND/OR ADMINISTRATIVE ACTIONS) AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF CUSTOMER’S USE OF THE SOFTWARE OR SERVICES FOR HIGH-RISK USES, INCLUDING CLAIMS FOR PRODUCT LIABILITY, PERSONAL INJURY OR DEATH, OR DAMAGE TO PROPERTY, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE NEGLIGENCE OF AWR OR OTHERS. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY OF THE SOFTWARE AND SERVICES FOR USE IN OR IN CONNECTION WITH A PARTICULAR APPLICATION OR SYSTEM, INCLUDING THE APPROPRIATE DESIGN, PROCESS, AND SAFETY LEVEL OF SUCH APPLICATION OR SYSTEM. CUSTOMER WILL DEFEND, INDEMNIFY, AND HOLD HARMLESS AWR AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF ITS USE OF THE SOFTWARE IN CONNECTION WITH A PARTICULAR APPLICATION; PROVIDED, HOWEVER, THAT CUSOMTER’S CONTRACTUAL OBLIGATION OF INDEMNIFICATION SHALL NOT EXTEND TO THE PERCENTAGE OF THE CLAIMANT’S DAMAGES OR INJURIES OR THE SETTLEMENT AMOUNT ATTRIBUTABLE TO AWR’S NEGLIGENCE OR OTHER FAULT OR TO STRICT LIABILITY IMPOSED UPON AWR AS A MATTER OF LAW.
11. Term and Termination.
a. Term. This Agreement begins on the Effective Date and continues until terminated. This Agreement will automatically terminate at the end of the License Term if not previously terminated as provided in this Agreement.
b. Termination. Customer may terminate this Agreement at any time upon written notice to AWR. This Agreement may be terminated by AWR if Customer materially breaches or defaults in the performance of this Agreement and fails to cure that breach or default within thirty (30) days, regardless of whether notice is given by AWR or AWR has knowledge of the breach or default; provided, however, AWR may immediately terminate this Agreement upon written notice to Customer if Customer fails to make any payment within ten (10) days after its due date or Customer becomes the subject of a voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition or assignment for the benefit of creditors. Either party may terminate an evaluation license at any time.
c. Effect of Termination. Upon termination or expiration of this Agreement, all licenses will immediately end and Customer will return or permanently erase/destroy, at AWR’s election and Customer’s expense, the Software, Documentation, license key codes and all copies thereof, and, if requested by AWR, deliver to AWR a written certification signed by an officer of Customer stating that it has complied with its obligations under this section. Nothing contained in this Agreement will limit any other remedies that either party may have under this Agreement, at law or in equity, nor relieve a party of any liability incurred prior to or after termination. Any unpaid amounts due by Customer to AWR shall survive termination or expiration of the Agreement. The provisions set forth in Sections 2.d, 2.e, 4, 5, and 8-12 shall survive termination or expiration of the Agreement.
a. Assignment. Customer may not assign any of its rights under this Agreement except with AWR’s prior written consent. AWR shall not unreasonably withhold its consent to proposed assignment in connection with a merger or acquisition of Customer or a sale of all or substantially all of Customer’s assets or business to which this Agreement and the Software relates if both (i) maintenance and support obligations with respect to the Software are then in effect, and (ii) the assignee agrees in writing to be bound by, and comply with, this Agreement. All other assignments of rights are prohibited under this section, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law, or any other manner. For purposes of this section, a change of control is deemed an assignment of rights; and “merger” refers to any merger in which Customer participates, regardless of whether it is the surviving or disappearing corporation. Customer may not delegate any performance of this Agreement. Any purported assignment of rights or delegation of performance in violation of this section is void. Subject to the foregoing, this Agreement is binding on the parties and will inure to the benefit of their respective successors and permitted assigns.
b. Severability; Waiver. If any of the provisions of this Agreement is held by a court to be invalid, the remaining provisions of this Agreement remain in full force and the invalid provision will be replaced with an enforceable provision that carries out the parties’ intentions to the greatest lawful extent. No failure or delay (i) in exercising any right or remedy or (ii) in requiring the satisfaction of any condition, under this Agreement, and no act, omission or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver, once given, is not to be construed as a waiver on any future occasion or against any other person or entity.
c. Export Control. The Software and Documentation are, and Third Party Software provided by AWR with the Software may be, subject to control under the U.S. Export Administration Regulations (15 CFR Part 730 et. seq.), other applicable U.S. export control laws and regulations, and applicable global export control laws and regulations, including, for products exported from the European Union, the Council Regulation (EC) No. 428/2009. Customer represents and warrants that Customer is not ineligible or otherwise restricted by US or applicable law to receive any copies of the Software or Third Party Software. AWR reserves the right not to ship or permit downloading of the Software ordered if, at any time, AWR believes that such shipment or downloading of such Software or Third Party Software may violate U.S. or other applicable export control laws. Customer agrees that Customer will not export, re-export or transfer any Software or Third Party Software in violation of any U.S. and applicable global export control laws and that Customer will not export, re-export, or transfer the Software or Third Party Software by any means to (i) any person or entity on OFAC’s List of Specially Designated Nationals or on BIS’s Denied Persons List, Entity List, or Unverified List, or any other applicable restricted party list or (ii) any prohibited destination, entity, or individual without the required export licenses or authorizations from the U.S. Government or other applicable export licensing authority. For text of the relevant legal materials, see https://www.awr.com/export.
d. Entire Agreement; Modification. This Agreement and the Proof of License represent the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements and understandings with respect to the subject matter hereof, whether written or oral. The parties may amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement.
e. Conflicting Documents. Any terms or conditions of any Customer purchase order, Customer invoice or other Customer business form that are in addition to or inconsistent with the terms of this Agreement will be deemed stricken from the purchase order, invoice or other business form, notwithstanding any acknowledgement or acceptance of it.
f. Governing Law. The laws of the State of California (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Agreement. All claims of Customer arising out of this Agreement are subject to the exclusive jurisdiction of, and venue in, the federal and state courts in Los Angeles, California, USA. Each party hereby irrevocably consents to the personal and exclusive jurisdiction and venue of these courts. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded and shall not be applicable this Agreement.
g. U.S. Government Rights. The Software is a “commercial item” developed exclusively at private expense, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined or used in the applicable U.S. acquisition regulations. If Customer is an agency, department, or other entity of the United States Government, the Software is licensed hereunder (i) only as a commercial item and (ii) with only those rights as are granted to all other licensees pursuant to the terms and conditions of this Agreement. Customer agrees not to use, duplicate, or disclose the Software in any way not expressly permitted by this Agreement. Nothing in this Agreement requires AWR to produce or furnish technical data for or to Customer.
h. Force Majeure. Except for Customer’s payment obligations, neither party is responsible for any delays or inability to perform this Agreement due to any act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, or any other cause beyond the reasonable control of that party.
i. Attorneys’ Fees. In any litigation or action concerning this Agreement, the prevailing party is entitled to be awarded all court costs and reasonable attorneys fees incurred, including all costs and fees incurred in enforcing and collecting any judgment.
j. Equitable Relief. Customer hereby acknowledges and agrees that AWR will suffer substantial and irreparable harm, for which there is no adequate remedy at law, if Customer breaches this Agreement, and that, in the event of a breach, or threatened breach, of this Agreement by Customer, AWR shall be entitled, without waiving any additional rights or remedies available to AWR at law, in equity, or by statute, to such injunctive or other equitable relief as may be deemed proper by a court of competent jurisdiction. Customer hereby waives any requirement that a bond be posted in order for AWR to obtain any such relief.