PolyUMod® is a library of advanced user-material models for general finite element analyses.  MCalibration® is a material model calibration tool that can be used to calibrate quickly and accurately a wide range of different material models.  PolymerFEM Material Database® is a collection of pre-calibrated material models for use with general finite element analyses.

SOFTWARE LICENSE AGREEMENT

THIS SOFTWARE LICENSE AGREEMENT (the “Agreement”) is made by and between PolymerFEM, LLC, a company organized and existing under the laws of Massachusetts, with offices located at Needham (hereinafter “Licensor”), and the software Licensee. 

BY ACCEPTING THIS AGREEMENT, WHETHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING THIS AGREEMENT BELOW, LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT.  IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF LICENSEE DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU CANNOT ACCEPT THIS AGREEMENT ON BEHALF OF LICENSEE AND LICENSEE MAY NOT USE THE OFFERING.

Section 1.  Definitions

                In addition to other terms that may be defined elsewhere in the text of this Agreement, the following terms as used in this Agreement shall have the meanings set forth below: 

                “Ancillary Services” means the Included Support (as defined below) and any support services in addition to the Included Support, technology integration, installation, training, including without limitation any customized, on-site training, customization and other services provided by Licensor to Licensee in accordance with this Agreement.

                “Documentation” means the manuals for the Software that are provided by Licensor, in its discretion, to all licensees of the Software.

                “Key” means any means made available by Licensor to Licensee to enable Licensor to activate, access and use the Software.

                “License Period” means the period specified in the applicable Quote.

                “Licensee Data” means the engineering design and analysis data or results generated by Licensee as a result of the use of the Software.

                “Offering” means the Software, Documentation, Keys, any Updates and Ancillary Services, collectively.

                “Quote” means the written quotation provided by Licensor to Licensee in connection with Licensor’s provision of the Offering to Licensee. The Quote is hereby incorporated into the terms of this Agreement in its entirety.

                “Software” means the object code form of the proprietary computer programs specified in the applicable Quote and Updates, if any, provided by Licensor hereunder.

                “Subscription Fee” means the fee payable by Licensee to Licensor for the License Period, as set forth in the applicable Quote.

                “Updates” means any modifications made to the Software in object code form, including any enhancements, customizations, error corrections, bug fixes, patches and the like made thereto that are made generally available by Licensor, in its discretion, to all licensees of the Software. For clarification, but not limitation, any new modules, packages, enhancements, modifications, features, functionality, major restructuring or similar items (“Improvements”) shall not be deemed Updates for purposes of this Agreement, and Licensee hereby acknowledges that Licensor may charge a separate fee or premium subscription price for any such Improvements.

Section 2.  License Grant

2.1       License Grant.  Subject to the terms of this Agreement, including but not limited to the payment of the Subscription Fee, during the License Period, Licensor hereby grants to Licensee, and Licensee hereby accepts, a nonexclusive license to install and use the Software for the internal purpose of performing engineering design and analysis, in accordance with and subject to all limitations on use or access specified in the applicable Quote, including without limitation any limitations on the number of concurrent users of the Software, concurrent access to the Software or the number of computers or devices on which the Software may be installed or from which the Software may be accessed.  Licensee shall install the Software only on computers that are owned by the Licensee.  Licensor, or its designee, will make available any Key(s) following Licensee’s payment of the Subscription Fee. 

2.2       Reservation of Rights.    Except as explicitly provided in this Section 2, no license, express or implied, is granted by Licensor to Licensee under this Agreement.  Licensee does not have any right or license to grant sublicenses.  Licensee shall not, and shall not permit its employees or any third party to, (i) translate, reverse engineer, decompile, recompile, disassemble, alter, copy or modify all or any part of the Offering, (ii) sell, lease, license, sublicense, encumber or otherwise deal with any portion of the Offering, (iii) write or develop any derivative software or any other software program based on the Offering or any other intellectual property of Licensor, (iv) provide, disclose, divulge or make available to, or permit use of the Offering by persons other than Licensee’s employees without Licensor’s prior written consent, (v) remove from the Offering any titles, trademarks, and copyright and other proprietary or restrictive legends or notices, or (vi) access the Offering in order to build a competitive product or service or copy any features or functions of the Offering.  Notwithstanding any other provisions of this Agreement, the requirements of this Section 2.2 will survive termination of this Agreement.  Licensor shall use the Offering only in accordance with the Documentation and in compliance with all applicable federal, state, local and foreign laws and regulations.

Section 3.   Support and Updates

3.1     Included Support.  As part of the Subscription Fee, during the License Period, Licensor may provide Licensee with limited support services related to the Software to the extent set out in the applicable Quote (hereinafter “Included Support”).  Any Included Support that is not used during the License Period shall expire at the termination of such License Period.  Licensor shall have no obligation to provide Included Support during the License Period until Licensee pays the applicable Subscription Fee in full.

3.2     Additional Support.  In the event that Licensee desires to obtain additional support, training and other Ancillary Services in addition to the Included Support during the License Period, Licensee may request such services, and Licensor may provide such services at Licensor’s standard rates in Licensor’s discretion.

3.3     Updates.  As part of the Subscription Fee, during the License Period, if Licensor releases any Updates, Licensor will enable such Updates to be accessed by Licensee, which may be through Licensor’s website.  Licensor shall have no obligation to enable any Updates that may become available during the License Period to be accessed by Licensee until Licensee pays the applicable Subscription Fee in full.

Section 4.    Consideration

Licensee shall pay (in a manner mutually agreeable between the parties) Licensor the Subscription Fee in full prior to Licensor delivering the Keys. 

Section 5.  Term and Termination 

5.1       Term.  This Agreement shall be effective on the date that Licensor receives Licensee’s payment of the first Subscription Fee in full and shall expire upon the expiration of the License Period.  

5.2       Non-Payment.  Notwithstanding anything to the contrary in this Agreement, if Licensee fails to pay any Subscription Fee, this Agreement shall and hereby does automatically terminate without any obligation of Licensor to provide Licensee with any notice of such termination.

5.3       Termination for Breach.  Except for reasons of non-payment of any Subscription Fee, if either party fails to perform or otherwise materially breaches any of its obligations under this Agreement, the non-breaching party shall have the right, without prejudice to any other rights it may have, to terminate this Agreement by giving thirty (30) days’ notice to the other party, and this notice shall automatically become effective unless the breaching party completely remedies the breach within the said thirty-day period.

5.4       Cessation of Use of the Offering.  Upon expiration or termination of this Agreement, all rights set forth hereunder shall automatically revert to Licensor, and Licensee shall immediately cease all use of the Offering, and shall at Licensor’s request take all steps and actions as may be necessary to reflect or confirm the expiration, termination, assignment, and/or surrender of Licensee’s rights to use same.

              5.5         Keys.  In addition to any other obligation contained in this Agreement, all Keys provided to Licensee hereunder (if any) are hereby deemed the Confidential Information (as defined below) of Licensor. In addition to any other applicable obligations of confidentiality, including under this Agreement, Licensee shall: (a) use the Keys solely as contemplated hereunder; (b) disseminate or disclose the Keys only those of its employees who have a need to know and who are bound by obligations of confidentiality that are no less restrictive than those hereunder; (c) not disseminate or disclose any Keys in any way to any third party; (d) use the same degree of care to limit disclosure of the Keys as it uses to protect its own proprietary and confidential information, but in any event at least reasonable care; (e) immediately give notice to Licensor of any unauthorized use or disclosure of any Keys, and assist Licensor in remedying any such unauthorized use or disclosure; and (f) not attempt to reverse engineer, reverse compile or disassemble any Keys.

Section 6.  Confidentiality

                6.1           Licensee acknowledges that it may be furnished with or may otherwise receive or have access to confidential or proprietary information of Licensor, including without limitation the Offering, the Keys, any information or material that relates to past, present or future products, software (including any source code and object code), research development, inventions, processes, techniques, designs or technical information and data, and marketing plans or any other information a reasonable recipient should have reason to believe is proprietary, confidential or competitively sensitive, regardless of whether or not such information is labeled as confidential (the “Confidential Information”).  Licensee shall: (a) use the Confidential Information solely as contemplated under this Agreement; (b) disclose the Confidential Information only to those of its employees who have a need to know and who are bound by obligations of confidentiality that are no less restrictive than those under this Agreement; (c) not disseminate or disclose any Confidential Information in any way to any third party; (d) use the same degree of care to limit disclosure of the Confidential Information as it uses to protect its own proprietary and confidential information, but in any event no less than a reasonable degree of care; (e) immediately give notice to Licensor of any unauthorized use or disclosure of any Confidential Information, and assist Licensor in remedying any such unauthorized use or disclosure; and (f) not attempt to reverse engineer, reverse compile or disassemble any Confidential Information.

                6.2           Except with respect to Confidential Information that consists of any information relating to an identified or identifiable natural person, the obligations set forth in Section 6.1 shall not apply to any information that (i) becomes generally available to the public through no fault of the Licensee; (ii) can be reasonably demonstrated to be in the possession of the Licensee prior to its initial disclosure hereunder without breach of any confidentiality obligation; or (iii) is acquired from a third party having a right to disclose the same to Licensee without breach of any confidentiality obligation. Licensee may disclose Confidential Information (including personally identifiable information) in accordance with a legally binding judicial or other governmental order, provided that, to the extent permitted by applicable law, Licensee provides Licensor with immediate notice of thereof and cooperates with Licensor with any actions taken by Licensor to protect such Confidential Information, including without limitation the seeking of an appropriate protective order or other remedy.

                6.3           Licensee shall immediately upon termination or expiration of this Agreement, return or destroy, at the option of the Licensor, all copies of the Confidential Information that are in its possession or control.  Notwithstanding any other provisions of this Agreement, the requirements of this Section 6 will survive termination of this Agreement.

                6.4           Licensee will notify Licensor immediately of any breach of this Section 6 of which it becomes aware, and will assist and cooperate with Licensor in minimizing the consequences of such breach. Licensee acknowledges that Licensor will sustain irreparable harm by a breach of this Section 6, Section 2.2, Section 7.1 or Section 7.3 by Licensee for which money damages would not be an adequate remedy. Licensee therefore agrees that, in the event of a threatened or continuing breach of this Section 6 or Section 2.2, Section 7.1 or Section 7.3, Licensor will be entitled, without prejudice to all other available remedies, to immediate injunctive or other equitable relief.

Section 7.  Ownership

7.1       Licensor IP.  As between Licensor and Licensee, Licensor owns all right, title and interest in and to the Offering, and this Agreement in no way conveys any right or interest in the Offering other than the limited license expressly granted in this Agreement.  Licensee acknowledges that the Offering embodies valuable confidential and secret information of Licensor, the development of which required the expenditure of considerable time and money. Should any such right, title, interest, or other ownership rights in any part of the Offering become vested in Licensee by operation of law, or otherwise, Licensee agrees to assign, and hereby assigns, all such right, title, interest, and other ownership to Licensor without further consideration.  Licensee shall provide and execute all documents necessary to effectuate and record such assignments to Licensor.   

7.2       Licensee Data.  As between Licensor and Licensee, Licensee owns all right, title and interest in and to the Licensee Data.  Should any such right, title, interest, or other ownership rights in any Licensee Data become vested in Licensor by operation of law, or otherwise, Licensor agrees to assign, and hereby assigns, all such right, title, interest, and other ownership to Licensee without further consideration.  Licensor shall provide and execute all documents necessary to effectuate and record such assignments to Licensee. 

7.3       Notices.  Licensee must retain all patent, copyright notices and other proprietary legends in or on the original Offering. Licensee may not remove from the Offering, or alter, any of the Licensor trademarks, trade names, logos, patent or copyright notices or markings, or add any other notices or markings to the Offering.

Section 8.  Disclaimer and Limitations

THE OFFERING IS PROVIDED TO LICENSEE “AS IS” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED.  LICENSOR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, TITLE, ACCURACY OF INFORMATIONAL CONTENT, AND FITNESS FOR A PARTICULAR PURPOSE.  THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE OFFERING IS ASSUMED BY LICENSEE.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR LICENSOR’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY.

IN NO EVENT WILL LICENSOR OR ITS SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR SUPPLIERS BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES (INCLUDING LOST PROFIT, LOST DATA, OR DOWNTIME COSTS), ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE OFFERING, WHETHER BASED IN WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY, AND WHETHER OR NOT LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR’S ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY SHALL BE, AT LICENSOR’S OPTION, TO (A) REFUND OF THE MOST RECENT SUBSCRIPTION FEE PAID BY LICENSEE FOR THE SOFTWARE, OR (B) REPAIR OR REPLACEMENT OF THE SOFTWARE.

Section 8.  Indemnification

Licensee shall indemnify and hold harmless Licensor against any and all claims, suits, causes of action, losses, damages, costs, fees, and other expenses (including without limitation reasonable attorneys’ fees) arising out of any claim that relates to: (1) Licensee’s breach of its representations, warranties or obligations under this Agreement; (2) Licensee’s use of the Offering, or the use by those under its control or at its direction, in combination with other software, hardware and/or materials infringing any patent or other proprietary rights of a third party; or (3) any materials, products, processes or the like that are designed and/or analyzed in any manner using the Offering causing any property damage, bodily injury or death.

Section 10.     Audit

Licensee shall grant to Licensor, its authorized representatives, and/or any public accounting firm designated by Licensor, the right to inspect, audit, examine and copy any records or documents of Licensee and its users of the Offering as may be necessary to verify Licensee’s compliance with this Agreement and/or any Documentation (an “Audit”). Licensee shall cooperate with any Audit conducted pursuant to this Section 10 and provide Licensor with such assistance as Licensor may request in conducting the same. Licensee shall make prompt adjustments to mitigate any errors or omissions discovered as a result of any such Audit.

Section 11.    General

11.1     Changes to Agreement.  This Agreement may not be amended, altered, modified, or otherwise changed in any respect except in writing signed by both parties.

11.2     Severability.  The invalidity, illegality, or unenforceability of any provision of this Agreement shall not in any way affect, impair, invalidate, or render unenforceable this Agreement or other provision thereof.

11.3     Export Control.  The Offering is subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee represents, warrants, covenants and agrees that it shall strictly comply with all applicable laws and regulations now in effect or hereafter enacted or issued relating to the import, export, re-export, use, handling or transportation of the Offering and Licensee acknowledges that Licensee is responsible for obtaining such licenses to export, re-export, or import as may be required.  Without limiting the generality of the foregoing, neither the Offering nor any underlying information or technology thereof may be downloaded or otherwise exported or re-exported (i) to a national or resident of any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders.  Licensor hereby agrees to the foregoing and represents and warrants that neither the Licensor, nor any person using any Offering on Licensor’s behalf, is located in, under the control of, or a national or resident of any such country or on any such list.  Licensee’s obligations under this Section 11.3 will survive the expiration or termination of this Agreement. 

11.4       Dispute Resolution.  If, after four (4) weeks, any dispute, difference or controversy arising under this Agreement cannot be resolved by good faith negotiations between the parties, the dispute shall be resolved by arbitration.  Any arbitration conducted pursuant to this Section shall be determined by arbitration administered by the American Arbitration Association.  The arbitration shall take place in Boston, Massachusetts.  The arbitrator shall make an award in accordance with and based upon all of the provisions of this Agreement and judgment upon any award rendered by the arbitrator shall be entered in any court having jurisdiction thereof. The arbitrator shall render an opinion setting forth findings of fact and conclusions of law with the reasons therefore stated.  To the extent possible, the arbitration hearings and award will be maintained in confidence. The fees and disbursements of the arbitrator shall be borne equally by the parties, with each party bearing its own expenses for counsel and other out-of-pocket costs.  Notwithstanding anything to the contrary in this Section 11.4 , either party shall have the right to seek injunctive relief in any court of competent jurisdiction at any time and under any circumstances and the dispute resolution proceedings of this Section 11.4 shall not apply to the following: (i) any action or proceeding that may be commenced by any third party against Licensor in connection with this Agreement, (ii) Licensee’s breach of its confidentiality obligations under this Agreement, or (iii) disputes arising out of, or relating to, the infringement of the intellectual property rights of Licensor.    

11.5     Governing Law.  This Agreement shall be governed by and construed and interpreted according to the federal laws of the United States of America and the internal laws of the Commonwealth of Massachusetts, United States of America, without regard to conflicts of laws.

11.6     Entire Agreement.  This Agreement (including all Exhibits hereto) constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, understandings, commitments, negotiations, and discussions, whether oral or written.

11.7     EU Personal Data.  This Section 11.7(a) shall apply only in the event Licensee is a company or other legal entity. The terms “personal data”, “data subject” and “process” have the meanings given in the General Data Protection Regulation (EU) 2016/679.

11.8     Construction.  In this Agreement, unless a clear contrary intention appears: (i) where not inconsistent with the context, words used in the present tense include the future tense and vice versa and words in the plural number include the singular number and vice versa; (ii) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement; (iii) reference to any gender includes each other gender; (iv) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and includes all addenda, exhibits and schedules thereto; (v) the titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement; (vi) “hereunder,” “hereof,” “hereto,”  and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or Subsection of this Agreement; (vii) “including” (and with correlative meaning, “include”) means including without limiting the generality of any description preceding such term; and (viii) any reference to “dollars” means United States Dollars.