Distributed Engineering Ltd. End User License Agreement
THIS END USER LICENSE AGREEMENT (the “AGREEMENT”) is a legal agreement entered into and made effective as of the date You accept this AGREEMENT (the “Effective Date”) and is by and between You and Distributed Engineering Ltd., (“DE Tower”, “We”, “Us” or “Our”) a limited Company registered in England, with a principal place of business at 397-405 Archway Road, Suite 15, London, N6 4QP, England. As used in this AGREEMENT the term “SOFTWARE” means the DE Tower software product, any associated media and databases, and any related printed materials and electronic documentation. By downloading, copying, installing, using or otherwise accessing the SOFTWARE, You represent (i) that You accept, and have been authorized to accept, these terms on behalf of the customer (the entity on whose behalf you are acting, in which event “You” and “Your” shall refer to you and such entity), or (ii) that You agree to be personally bound by the terms of this AGREEMENT as the customer (in which case “You” and “Your” refers to you alone). If You are not so authorized or do not agree with the terms of this AGREEMENT, (i) DE Tower is unwilling to provide the Subscription or grant You access to the SOFTWARE, (ii) You are not permitted to use the SOFTWARE, and (iii) You must promptly return to DE Tower, or destroy, all copies of the SOFTWARE and related materials made available to You. Provided You comply with the foregoing requirements of return or destruction within thirty (30) days of purchase, DE Tower will refund any payments made by You in advance for the cancelled Subscription. If You accept these terms on behalf of an entity, You may use the SOFTWARE only on behalf of such entity. If You intend to be personally bound, use of the SOFTWARE is limited to your personal use. The terms of this AGREEMENT supersede any conflicting terms in any confirmation, purchase order or other document You may submit.
Copyright 2014-2020 Distributed Engineering Ltd. All rights reserved. The SOFTWARE is protected by England copyright laws and various international treaties. All rights not specifically granted under this AGREEMENT are reserved by DE Tower.
- TERM AND SCOPE OF SUBSCRIPTION: This AGREEMENT grants You a license to use the SOFTWARE, plus associated maintenance for a period of one year commencing on the Effective Date (the “Initial Term”), and for successive one-year terms (each, a “Renewal Term” and collectively, the “Subscription Term”) if so elected and paid for by You. The terms of this AGREEMENT are binding for so long as You have an active Subscription or You use or have access to the SOFTWARE.
- SOFTWARE ACCESS. Subject to Your acceptance of and compliance with License Agreement, DE Tower grants to You a non-exclusive, non-transferable, revocable limited license to use the SOFTWARE. For the avoidance of doubt, the SOFTWARE is licensed to You, not sold. All right, title and interest are and remain vested in DE Tower. You are authorized to use the SOFTWARE concurrently on no more than the maximum number of computers for which Subscription Fees have been paid, as specified in the purchase documentation you receive from DE Tower.
The following additional terms apply:
2.1 Usage Controls. You agree that: (a) The SOFTWARE may not be accessed at any time on more computers than the number for which Subscription Fees have been paid, (b) User’s credentials may not be shared with anyone who is not a User, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the SOFTWARE. A “User” is an individual who is authorized by You to access the SOFTWARE pursuant to Your Subscription, and to whom You (or We, at Your request) have supplied SOFTWARE access credentials. Users should be limited to (a) an individual who purchased the SOFTWARE or (b) employees of the purchaser, if a company. If You are unable or unwilling to abide by a contractual usage limit, We may disable such excess use, charge You for such excess use (e.g., by increasing the number of authorized computers and billing You retroactively for these additional computers for the entire annual Subscription Term in which this occurred) and/or terminate or suspend Your Subscription, all without liability therefor and at DE Tower’s sole discretion.
2.2 Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the SOFTWARE, and notify Us promptly of any such unauthorized access or use, and (c) use the SOFTWARE only in accordance with the documentation and applicable laws and government regulations.
2.3 Usage Restrictions. You will not (a) make the SOFTWARE available to, or use the SOFTWARE for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease the SOFTWARE or access to the SOFTWARE, or include the SOFTWARE in a service bureau or outsourcing offering, (c) use the SOFTWARE to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the SOFTWARE to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the SOFTWARE or third-party data contained therein, (f) attempt to gain unauthorized access to the SOFTWARE or its related systems or networks, (g) permit direct or indirect access to or use of the SOFTWARE in a way that circumvents a contractual usage limit, (h) copy the SOFTWARE or any part, feature, function or user interface thereof, (i) access the SOFTWARE in order to build a competitive product or service, or (j) reverse engineer the SOFTWARE (to the extent such restriction is permitted by law). If the SOFTWARE was purchased at a discounted price for educational purposes it may in no event be used for professional design purposes.
- LIMITATION OF LIABILITY. We intend that the information contained in the SOFTWARE be accurate and reliable, but it is entirely the responsibility of You and Your Users to verify the accuracy and applicability of any results The SOFTWARE is intended for use by licensed engineers who possess an understanding of structural mechanics. In no event will DE Tower or its officers, employees or agents be liable to anyone for any incidental, special, punitive or consequential damages, including any lost profits, lost savings or lost data, or for any professional malpractice or product liability arising out of or in connection with the usage of the SOFTWARE or any associated services, even if DE Tower or its officers have been advised of or should be aware of the possibility of such damages. In no event whatsoever shall the entire liability of DE Tower from any and all causes (including without limitation breach, negligence, product liability and infringement) exceed the Subscription fee actually paid by You for the SOFTWARE for the Subscription Term in which the claim accrued.
- LIMITED WARRANTY. DE Tower represents and warrants that it will use diligent efforts to ensure that the SOFTWARE will contain the functions and operate substantially in accordance with the user documentation during Your Subscription Term, provided that (i) We do not warrant that the SOFTWARE will operate error free or without interruption, and (ii) We may elect to modify the features and functions of the SOFTWARE during Your Subscription Term, but will not eliminate any material features You rely on without allowing You to terminate Your Subscription and receive a refund of Your prepaid fees prorated for the period after termination. DE Tower’s sole obligation and Your exclusive remedy under this limited warranty will be to receive support from DE Tower via telephone or e-mail EXCEPT AS STATED ABOVE THE SOFTWARE AND ANY RELATED SERVICES ARE PROVIDED WITHOUT WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, all of which are hereby disclaimed.
- MAINTENANCE AND SUPPORT. DE Tower shall provide You with maintenance and support services (“Support”) as part of your paid Subscription. Support consists of patches and upgrades for the SOFTWARE as they are released to Our customer base and response to service inquiries and problem reports within a reasonable time by telephone or email.
- PROTECTION; PRIVACY. We use a third-party Internet service (the “Authorization Vendor”) to manage Your use of the SOFTWARE so that it does not exceed the scope of rights You have purchased.
6.1 Disclosing All Usage. You are specifically prohibited from attempting to bypass these Internet controls by any means. If these controls become broken or inoperable, or if You defeat or tamper with them, You will fully disclose to DE Tower all actual usage of the SOFTWARE by You and Your Users and will permit DE Tower or its designee to physically inspect the sites and systems where You use the SOFTWARE to audit and correctly compute Your actual usage and to charge You for it at Our highest applicable fee schedule.
6.2 Confidentiality and Privacy. DE Tower respects the confidentiality of any trade secrets or private information We may learn about You and Your Users. However, You acknowledge that, as part of the authorization process, our usage controls transmit the logon names of current Users to the Authorization Vendor. Authorization Vendor may collect (and claim ownership of) anonymous system data regarding the use and functioning of its authorization system by Users, including hardware characteristics, operating system data, installed software data, IP addresses, session durations, and Windows logon names, but excluding logon passwords, data created by Customer using the Software, or any other Customer or personally identifiable data, and (b) that any of Your data processed or stored by use of the Software by You and Your Users may be processed and stored wherever the Authorization Vendor’s servers reside, including outside England.
- FEES AND PAYMENTS. You will pay all fees as set forth in Section 7.1. Unless otherwise provided herein, payment obligations are non-cancelable and fees paid are non-refundable.
7.1. Fees. Upon execution of this AGREEMENT, You shall pay the Annual Subscription Fee (as quoted by Us in writing) for the Initial Term. If You wish to renew Your Subscription, You shall pay additional Annual Subscription Fees (as quoted by Us in writing) per annual Renewal Term, which amount may be increased by DE Tower at any time upon at least sixty (60) days advanced notice. Should You fail to pay Your Annual Subscription Fee prior to the termination of the then current annual term, the Subscription shall expire at the end of the then current term, unless earlier terminated. Any fees or other amounts due and payable hereunder which are not paid on or before each due date will bear interest at the rate of one percent (1%) per month (or the highest rate permitted by applicable law, if less). You are responsible and liable for any fees, including reasonable attorney and collection fees, that DE Tower may incur in its efforts to collect any remaining overdue balances from You.
7.2. Invoicing and Payment. All fees shall be due and payable within thirty (30) days of receipt of DE Tower’s invoice. You are responsible for providing complete and accurate billing and contact information to DE Tower and notifying DE Tower of any changes.
7.3. Failure to Pay Annual Subscription Fee. Payment of the Annual Subscription Fee will be required to access the SOFTWARE and to be eligible for upgrades and technical support. If any invoiced amount is not received by DE Tower within thirty (30) days after the date the invoice was issued, then without limiting DE Tower’s rights or remedies, DE Tower may terminate Your access to the SOFTWARE.
7.4. Taxes. DE Tower’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with its purchases hereunder. If DE Tower has the legal obligation to pay or collect Taxes for which You are responsible under this Section, DE Tower will invoice You and You will pay that amount unless You provide DE Tower with a valid tax exemption certificate authorized by the appropriate taxing authority. DE Tower is solely responsible for taxes assessable against it based on its income, property and employees.
7.5. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features
- TERMINATION. This AGREEMENT commences on the Effective Date and continues until the Subscription has expired or has been terminated in accordance with the terms hereof.
8.1. DE Tower may terminate Your Subscription and right to use the SOFTWARE if You fail to comply with any terms or conditions of this AGREEMENT and fail to correct such failure within ten (10) days of notice from DE Tower. In such event You must delete and destroy any copies of the SOFTWARE in Your possession or control and promptly return the associated documentation to DE Tower.
8.2. You may also elect to terminate Your Subscription at any time, by notice thereof to DE Tower. In neither case 8.1 or 8.2 will You be entitled to a refund.
8.3. DE Tower may terminate Your Subscription at any time, in its sole discretion. If such termination is not due to Your breach or misconduct, DE Tower will refund a portion of the Subscription fee paid by You, prorated for the period that follows termination.
- EXPORT CONTROLS. You agree to comply with all export and import laws and restrictions and regulations of the United Kingdom or any foreign nation, and not to export, re-export or import the SOFTWARE in violation of any such restrictions, laws or regulations.
10. CHOICE OF LAW. By entering into this AGREEMENT You agree to the exclusive jurisdiction of the courts of England, for resolution of any dispute between the parties, including any claims You may have relating to the SOFTWARE or other goods or services provided by DE Tower. All disputes therefore shall be resolved in accordance with the laws of England, and all parties to this AGREEMENT expressly agree to exclusive jurisdiction within England. No choice of law rules of any jurisdiction applies.