SCM END USER LICENSE AGREEMENT
IMPORTANT-READ CAREFULLY: Permission to install and use the Software (as defined below) is conditional upon you agreeing to these license terms. Installation or use of the Software by you will be deemed to be acceptance of these license terms. You hereby represent and warrant that you are authorized to bind to this EULA the identity identified in the Offer letter.
EULA: this end user license agreement between you and SCM including all exhibits thereto as well as specific license terms stipulated in an Offer letter.
IP-rights: any and all intellectual property rights, including but not limited to copyrights, trademarks and patents, as well as know how and trade secrets contained in or relating to SCM, the Software and the Documentation.
Software: the software programs distributed by SCM including, without limitation, any revisions, updates and/or upgrades thereto, Documentation and Third Party Software.
Documentation: any online or otherwise enclosed documentation provided by SCM.
Offer letter: written reaction (usually by E-mail) by SCM, or by an official reseller or distributor appointed by SCM, in response to a request for a price quotation placed by you. The Offer letter may contain specific license terms, restrictions, price specifications and payment terms.
Third Party Software: software, which is owned and controlled by third parties and is embedded in and distributed together with the Software.
SCM: Scientific Computing & Modelling N.V., Faculty of Sciences, Theoretical Chemistry Vrije Universiteit, De Boelelaan 1083, 1081 HV Amsterdam. Phone: +31-20-5987626, Fax: +31-20-5987629. E-mail: admin@scm.com
ARTICLE 2. GRANT OF LICENSE
2.1 Subject to the terms and conditions of this EULA and the payment of all applicable license fees, SCM grants to you a limited, non-exclusive and non-transferable license to install and use, for internal purposes only, the Software on the number of processor cores and for the number of users within your institute specified in the Offer letter.
2.2 You may only make or store a limited number of backup copies of the Software and the Documentation for archival purposes.
2.3 If users within your institute are entitled to use your installation of the Software, you guarantee that you will inform these users of the applicability of this EULA and you acknowledge that you will be responsible for their acceptance thereof.
2.4 The agreement between you and SCM consists of the Offer letter and this EULA. In case of any inconsistency between the Offer letter and the EULA, the Offer letter will prevail.
ARTICLE 3. DELIVERY
3.1 SCM distributes the Software in electronic form at SCM's website.
3.2 The Software and license keys for usage will be made available to you only after SCM has received your written acceptance (by E-mail, fax, or postal mail) of the prices, terms, and conditions in the Offer letter and this EULA. A license file or any other security device that is provided by SCM, is provided to you for your use of the Software. You may not share or transfer the license file or other security device with or to any other user of the Software (except those users within your institute entitled to use your installation of Software) or any other third party. Any use of the Software by any third party, except as explicitly allowed in this EULA, is strictly forbidden and constitutes a material breach of this EULA.
ARTICLE 4. RESTRICTIONS
4.1 This EULA grants you the right to use the Software for internal purposes only. Using Software for consulting services is explicitly forbidden.
4.2 You may not sublicense, rent, create derivative works based on the Software or otherwise exploit the Software other than for your internal business purposes. In case of an academic or non-profit license you may use the Software exclusively for non-profit research.
4.3 Without consent from SCM you may not transfer or assign the license or your rights and obligations under this EULA in whole or in part, to another party.
4.4 You may not decompile, reverse engineer, disassemble, translate or adapt the Software nor may you attempt to create the source code from the object code of the Software unless explicitly permitted by applicable and mandatory law. In the event applicable and mandatory law allows the above mentioned acts you will, upon request, provide SCM with reasonably detailed information regarding any of the above-mentioned acts.
4.5 You may not decrypt the Software unless decryption is a necessary part of the operation of the Software.
4.6 You may not attempt in any way to circumvent the license checking mechanisms and may not use Software beyond the number of processor cores mentioned in the Offer letter.
4.7 You will provide SCM with up-to-date information regarding the number of processor cores in the machines on which you wish to use Software.
4.8 Without prior consent from SCM you may not incorporate, or let others incorporate, the Software, in part or in whole, into any other program.
4.9 The source code of the Software shall not be made available to you unless specifically agreed upon in the Offer letter.
4.10 When you publish results obtained with the Software in the scientific literature, you must include proper references, as specified in the Software itself and/or in the Documentation.
4.11 You understand and agree that additional restrictions may be specified in the Offer letter.
ARTICLE 5. OWNERSHIP
5.1 You acknowledge and agree that the title to and ownership of the Software and the IP-rights associated therewith are and remain the sole and exclusive property of SCM and its licensors. You do not purchase the Software but only obtain a license to use it for the agreed period of time. You therefore have no right, title or interest in or to the Software and the IP-rights associated therewith, except as expressly set forth in this EULA.
5.2 SCM may, at any time during your normal business hours and upon reasonable advance notice, conduct an audit at your premises to ascertain whether your use of the Software is in compliance with the provisions of this EULA.
ARTICLE 6. PAYMENTS; TAXES
6.1 The applicable license fees, payment terms, and specific license conditions (including for example the license term, number of processor cores, allowed users, licensed modules of Software) are set out in the Offer letter.
6.2 All payable amounts are net, exclusive of any Value Added Tax or other taxes or duties that may be imposed as a result of the transactions under this EULA.
6.3 You shall pay each amount due within 30 days of invoice. Late payments will be subject to an interest of 1% per month, counting a part of a month as a full month, compounded from the due date.
6.4 SCM shall have the right to change the license fees for optional future licenses at any time during the term of this EULA. Such changes shall become effective immediately.
ARTICLE 7. TERM AND TERMINATION
7.1 The license will be effective for the period of time agreed upon in the Offer letter unless terminated sooner in accordance with the terms of this EULA.
7.2 At any time parties may negotiate an extension or renewal of the license term. This EULA will control all such extensions and renewals - even if established after a temporary discontinuation of the license - unless parties agree in writing upon a modification of the clauses.
7.3 Either party may immediately terminate the EULA upon written notification to the other party and without becoming liable for damages suffered because of such termination by the other party, if (a) the other party commits a material breach of this EULA and fails to remedy that breach within thirty (30) days of receipt of notice of material breach, (b) such other Party applies for a moratorium of payments, is declared bankrupt or otherwise ceases to meet its (financial) obligations, or (c) such other Party suspends or discontinues its business activities.
7.4 Notwithstanding article 7.3, SCM may immediately terminate this EULA if you fail to comply with any provisions of the terms in this EULA.
7.5 After placing your first purchase order with SCM [through your written acceptance (by E-mail, fax, or postal mail) of the prices, terms, and conditions in the Offer letter and this EULA], you may still destroy the Software free of charge within 30 days after you have obtained download information from SCM if you find the Software unsatisfactory for whatever reason. You thereby terminate this EULA immediately and are not entitled to make use of the results obtained with the Software. This 30-day right to cancel your order does not apply if you made use of Software before placing your order, for example through a free evaluation.
7.6 Upon termination or expiration of this EULA (a) all sums due to SCM but not yet paid shall become immediately due and payable, (b) all rights and licenses granted to you under this EULA with respect to the Software, the source code and Documentation will terminate, and (c) you shall destroy or return to SCM all copies of the Software , source codes and Documentation in your possession.
7.7 All provisions relating to confidentiality and ownership shall survive the termination of this EULA.
ARTICLE 8. CONFIDENTIALITY
8.1 You agree to maintain and preserve the confidentiality of all Confidential Information in strict confidence, including, but without limitation, taking such steps to protect and preserve the confidentiality of the Confidential Information as it takes to preserve and protect the confidentiality of your own confidential information, but in any event taking no less than a reasonable degree of care. Furthermore you agree to disclose such Confidential Information to your own employees and consultants on a “need-to-know” basis only, and only to those employees and consultants who have agreed to maintain the confidentiality thereof under terms at least as restrictive as those contained herein. Notwithstanding the forgoing and subject to article 4.10 you are entitled to publish the results obtained with the Software in the scientific literature.
8.2 The term “Confidential Information” means any information, in whatever form, disclosed by SCM that relates to the Software, including but not limited to the source code and the Documentation, and that is not publicly known. “Confidential Information” also includes any information, in whatever form, disclosed by SCM to you in connection with this EULA that is identified as “confidential” or “proprietary” by SCM, or which you have reason to believe is treated as confidential or proprietary by SCM.
ARTICLE 9. UPDATES AND RENEWALS
Only if and insofar as explicitly agreed in writing, you are entitled to all new versions and upgrades of the Software that may be released by SCM during your license term.
ARTICLE 10. MAINTENANCE AND SUPPORT
10.1 SCM intends to offer a high quality of customer support and invites all users of Software to send bug reports, and technical and scientific support questions to support@scm.com. SCM may however decide at its discretion whether or not to answer specific support questions or bug reports, as well as the detail and priority in which to reply to them. In particular, SCM may limit its support for (i) versions of Software other than the latest version (ii) daily maintenance of the Software at your computer(s), (iii) assistance with your research, (iv) the interpretation of results obtained with the Software, (v) versions of Software for platforms to which SCM no longer has access, (vi) versions of Software recompiled with unsupported libraries or compiler versions, or executed on unsupported operating systems..
10.2 You acknowledge and agree that SCM supports versions of the Software for a limited number of platform types only. It is your responsibility to ensure the Software works on the platform you are using during a free evaluation period. Definitions of supported platforms may include specific levels of operating systems, library versions, and compilers. The range of supported platforms is subject to change at SCM's discretion.
10.3 You acknowledge that SCM accepts no responsibility to offer support for Third Party software distributed by SCM.
ARTICLE 11. DISCLAIMER OF WARRANTIES
11.1 You expressly acknowledge and agree that use of the Software is at your sole risk. The Software, source code and related Documentation are provided "AS IS", without warranty of any kind. SCM does not, either expressed, implied or statutory, make any warranties, claims or representations with respect to the Software, including, without limitation, warranties of quality, performance, non-infringement, merchantability or fitness for use or a particular purpose, unless explicitly stated otherwise in this EULA. SCM further does not represent or warrant that the Software will always function uninterrupted or error-free. No oral or written information or advice given by SCM or by any of its representatives, agents or resellers shall create a warranty.
11.2 As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to you.
ARTICLE 12. LIMITATION OF LIABILITY
12.1 SCM will only be liable in the event of gross negligence or intentional act of SCM, its directors, employees, agents or resellers, causing the loss or damage. In such event, SCM will only be liable for the direct damages, strictly meaning (i) the reasonable costs made to have the SCM’s performance meet with its obligations under this EULA; and(ii) the reasonable costs to be made in order to prevent or to limit the damages caused; and (iii) the reasonable costs to determine the liability and the nature and scope of the damages; and (iv) the reasonable costs to be made in order to seek for any remedy out of court. In no event shall SCM be liable for any indirect damages. The total damages shall not, however, in any case exceed the amount paid by you for the Software.
12.2 In all other events SCM shall not be liable for any loss, damage, injury (including, to the full extent permitted by law and no further, personal injury or death), demand or expense, direct or indirect, resulting from any act or omission that can be contributed to SCM, its directors, employees, agents or resellers, or any other cause and arising out of or in connection with the use of the Software even if SCM, its directors, employees, agents or resellers, has been advised of the possibility of such damages, arising out of the use, misuse or inability to use the Software.
ARTICLE 13. THIRD PARTY SOFTWARE
You acknowledge and agree that the Software contains Third Party Software. Any such Third Party Software falls under the scope of this EULA. Title and ownership of Third Party Software and the intellectual property rights associated therewith are and remain the sole and exclusively property of the respective third party.
ARTICLE 14. EXPORT RESTRICTIONS
You acknowledge that the Software may be subject to export and import control laws, including US export laws for Third Party Software, and agree to comply fully with those laws in connection with the Software.
You agree that the Software is not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor will it be used for: nuclear activities, chemical or biological weapons, or missile projects unless authorized by the Dutch government. You warrant that you are not located, nor under the influence of, a country embargoed by The Netherlands or the US.
ARTICLE 15. MISCELLANEOUS
15.1 If any term or provision of this EULA shall be found to be illegal or unenforceable, then, notwithstanding that term, all other terms of this EULA will remain in full force and effect and parties shall substitute for the affected term or provision an enforceable term or provision which approximates the intent and economic effect of the affected provision.
15.2 The failure by SCM to exercise any right hereunder shall not operate as a waiver of SCM’s rights to exercise such right or any other right in the future.
15.3 The laws of The Netherlands will govern this EULA in all respects. The Amsterdam District Court will adjudicate all disputes arising in connection with this EULA. You acknowledge and agree that this clause will supersede any conflicting standard clauses, terms, or similar rules that you may otherwise apply in agreements. The Vienna Sales Convention of 1980 shall not apply.
15.4 This EULA replaces any earlier EULA you may have signed with SCM. Any older EULA hereby becomes null and void.
