End User License Agreement
Last updated: 11/4/2020, Effective Date : 11/4/2020
Do not access or use the Purchased Services until you have carefully read the following terms and conditions. By accepting this Agreement, either by clicking a box indicating your acceptance or by using or accessing the Purchased Services, you agree to be legally bound by the terms and conditions of this Agreement.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the terms "You" or "Your" shall refer to such entity and its Affiliates. If you do not have such authority or do not agree to the terms of this Agreement, do not access or use the Purchased Services.
This Agreement is effective between You and Fluid Numerics LLC as of the date You accept it.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.
"Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"System" means a server node on which You install or execute all or a portion of the Software.
"Order Form" means a purchase order or through or other order form generated through an electronic online ordering system for placing orders hereunder, including addenda thereto, that are entered into between You and an authorized reseller for the purchase of Purchased Services from time to time, including addenda and supplements thereto.
"Purchased Services" means any services, including Support Services that You or Your Affiliates purchase under an Order Form.
"Software" means the Cloud CFD product as listed on the reseller's website, and may include without limitation, and any other components that are marked as "Fluid Numerics proprietary" or with a similar legend, including any updates or upgrades thereto provided to You under this Agreement.
"Download Site" means the Google Cloud Platform website that hosts the Software images, updates, upgrades, enhancements, additions, corrections and modifications.
"Support Services" means the support and maintenance services identified on Section 8.
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
2.1 Under this End User License Agreement (the "Agreement"), Fluid Numerics LLC (the "Vendor") grants to You a non-exclusive and non-transferable right to access and use the Software as a service strictly in accordance with the terms of this Agreement.
2.2 The subscription provides You with access to the Software and associated benefits. When Your subscription concludes, You will no longer have access to the Software or any associated benefits and You must discontinue Your use of the Software.
2.3 Fluid Numerics LLC reserves the right to change the benefits available under the subscription at any time without any notice to You, such as the version of the Software being made available or the Support Services.
2.4 Your use of any software components which You may download in connection with the provision of Support Services are governed by the end user license agreements provided with such components, such as click-through license terms.
2.5 You may access the Software or use the Purchased Services or any components in any geographic region, supported by the reseller, subject to Your compliance with all applicable export laws and regulations.
3. Reservation of Rights.
3.1 Title, copyright, intellectual property rights and distribution rights of the Software remain exclusively with Fluid Numerics LLC. Intellectual property rights include the look and feel of the Product. This Agreement constitutes a license for use only and is not in any way a transfer of ownership rights to the Product.
3.2 The rights and obligations of this Agreement are personal rights granted to the Licensee only. The Licensee may not transfer or assign any of the rights or obligations granted under this Agreement to any other person or legal entity.
4.1 You agree not to modify, reverse-engineer, or de-compile the Software in any manner through current or future available technologies.
4.2 You agree not to, and you will not permit others to license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Software or make the Software available to any third party.
4.3 Failure to comply with any of the terms under the License section will be considered a material breach of this Agreement.
5. Purchased Services
5.1 Provision of Purchased Services
Fluid Numerics LLC shall make available to You the Purchased Services pursuant to the terms of this Agreement. The Purchased Services are for Your (including Your contractors and agents) use and benefit only, and only for the Systems for which You purchase them. Any unauthorized use of the Purchased Services will be deemed to be a material breach of this Agreement.
5.2 Reservation of Rights in Purchased Services
Subject to any limited rights expressly granted hereunder, Fluid Numerics LLC reserves all rights, title and interest in and to the Purchased Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
You shall not (i) permit any third party to access the Purchased Services except as permitted herein or in a quote, (ii) create derivative works based on the Purchased Services except as authorized herein, (iii) reverse engineer the Purchased Services, or (iv) access the Purchased Services in order to build a competitive product or service.
5.4 Suggestions and Feedback
Fluid Numerics LLC will have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into our products and services any suggestions, enhancement requests, recommendations or other feedback provided by You relating to the operation of the Purchased Services.
6. Limitation of Liability
6.1 The Software is provided by Fluid Numerics LLC and accepted by You "as is". The Vendor will not be liable for any general, special, incidental or consequential damages including, but not limited to, loss of production, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantage suffered by You arising out of the use or failure to use the Software.
6.2 Fluid Numerics LLC makes no warranty expressed or implied regarding the fitness of the Product for a particular purpose or that the Product will be suitable or appropriate for the specific requirements of the Licensee.
6.3 Fluid Numerics LLC does not warrant that use of the Software will be uninterrupted or error-free. You accept that the Software in general is prone to bugs and flaws within an acceptable level as determined in the industry.
7. Warrants and Representations
7.1 Fluid Numerics LLC warrants and represents that it is the copyright holder of the Software.
7.2 Fluid Numerics LLC warrants and represents that granting the right to access and use this Software is not in violation of any other agreement, copyright or applicable statute.
8. Purchased Services and Support Services
8.1 The Purchased Services for each System are as follows:
(i) Access to the applicable Software via the Download Site;
(ii) Access to the applicable Software updates and upgrades, when and if available, via the Download Site;
(iii) Access to the applicable level of Support Services described in Section 8.2 of this Agreement.
8.2 The Support Services are as follows:
(i) You are entitled to Community Support for unlimited number of incidents for assistance on use of the Software as a service. Assistance is limited to assistance on installation, configuration, and deployment and resolution of a problem using the Software.
(ii) Fluid Numerics LLC offers email support services during the hours of 8AM-5PM Mountain Standard US Time with an undetermined response time.
(iii) Fluid Numerics LLC will assign one (1) support contact for each System customer.
(iv) Fluid Numerics LLC will provide upgrades and patches to the Software periodically.
8.3 Fluid Numerics offers the following mechanisms to obtain Community Support
(i) Community forum and email. You will be able to open tickets by sending email to firstname.lastname@example.org. Please include the summary of the issue in the 'Subject' line of the email and detailed description of the problem in email content. All communications through email@example.com are made publicly available at https://groups.google.com/a/fluidnumerics.com/g/fluid-slurm-gcp
9.1 All terms, conditions and obligations of this Agreement will be deemed to be accepted by You ("Acceptance") on installation of the Software.
10.1 This Agreement commences on the date You accept it by accessing the Software and Purchased Services and continues until your subscription has been terminated in accordance with Your agreement with the reseller.
10.2 You may cancel the Purchased Services at any time.
10.3 Fluid Numerics LLC may terminate this Agreement for cause in the event of Your material breach of this Agreement
11.1 Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa.
11.2 If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
12.1 All notices required or permitted to be given hereunder shall be in writing, shall make reference to this Agreement, and shall be delivered by hand, or dispatched by prepaid air courier or by registered or certified airmail, postage prepaid, addressed as follows:
Notices to Fluid Numerics LLC:
Fluid Numerics LLC
5721 Arapahoe Avenue, STE A3
Boulder, CO, 80303
Such notices shall be deemed served when received by addressee or, if delivery is not accomplished by reason of some fault of the addressee, when tendered for delivery. Either You or Fluid Numerics LLC may give written notice of a change of address and, after notice of such change has been received, any notice or request shall thereafter be given at such changed address.