Simulations Plus

The terms and conditions herein of this License Agreement, and a mutually agreed upon ORDER, which by this reference is incorporated herein (this “Agreement”), constitute a legal agreement between you (“LICENSEE”). and Simulations Plus, Inc. including a related entity (“LICENSOR”).  

LICENSOR PROVIDES THE SOFTWARE, DOCUMENTATION, AND SUPPORT SERVICES (ALL AS DEFINED BELOW) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY  ACCESSING, DOWNLOADING, INSTALLING, USING OR RECEIVING ANY OF THE SOFTWARE, DOCUMENTATION, OR SUPPORT SERVICES LICENSED TO LICENSEE HEREUNDER BY LICENSOR, LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES (A) TO BE LEGALLY  BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ANY FUTURE AMENDMENTS  AND ADDITIONS TO THIS AGREEMENT AS PUBLISHED FROM TIME-TO-TIME ON THE LICENSOR’s WEBSITE  OR THROUGH LICENSOR’s SOFTWARE, DOCUMENTATION, OR SUPPORT SERVICES;   AND (B) THAT LICENSEE IS A CORPORATION, GOVERNMENTAL  ORGANIZATION, OR OTHER LEGAL ENTITY THAT HAS THE RIGHT, POWER, AND AUTHORITY TO  ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE, DOCUMENTATION, OR SUPPORT SERVICE TO LICENSEE AND LICENSEE MUST NOT DOWNLOAD, INSTALL OR OTHERWISE ACCESS THE SOFTWARE, DOCUMENTATION, OR SUPPORT SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE, DOCUMENTATION, OR SUPPORT SERVICES THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY LICENSED BY LICENSOR. 

LICENSOR reserves the right to modify the terms and conditions of this Agreement or its policies relating to the SOFTWARE, DOCUMENTATION, Support Services, or materials at any time, effective upon posting of an updated version of this Agreement on LICENSOR’s website. LICENSEE is responsible for regularly reviewing this Agreement. Continued use of the SOFTWARE, DOCUMENTATION, or Support Services or other materials after any such changes shall constitute LICENSEE’s consent to such changes.

1. DEFINITIONS

In this AGREEMENT, the following terms shall have the following meanings.

1. “SOFTWARE” is the set of copyrighted, object code computer programs, databases, content, component parts thereof, and support files licensed hereunder, as identified by tradename in the ORDER of this Agreement, including any updates or new versions thereof.
2. “Agreement” means this Software License Agreement, and the rights and obligations which it creates under applicable copyright laws and other applicable state or federal law or equivalent international laws and treaties; as well as the ORDER, and Schedule A (Data Processing Agreement).
3. “LICENSE TERM” means the aggregate time period that SOFTWARE is authorized by LICENSOR to function in full version mode, as specified in the ORDER.
4. “LICENSED GEOGRAPHIC LOCATION” unless, otherwise stated in the ORDER, is the area within fifty (50) miles of the territorial boundaries of the city(s) where SOFTWARE is authorized for use or operation by LICENSOR, as specified in the ORDER.
5. “STATION” means a LICENSOR authorized single user software operating license.
6. “AUTHORIZE SOFTWARE” is the process of the exchange of software security or activation codes between LICENSOR and LICENSEE that enables SOFTWARE to function in full version mode for a specific time period.
7. “DEAUTHORIZE SOFTWARE” is the process of the exchange of software security codes between LICENSOR and LICENSEE that renders SOFTWARE inoperable.
8. “DERIVATIVE” means any computer software program that may be developed based on or containing any part of LICENSOR’S SOFTWARE, regardless of the form of the resulting code, the media it is carried on, or its intended use.
9. “DOCUMENTATION” means collectively: (a) all materials (including any medium or format) published or otherwise made available to LICENSEE by or on behalf of LICENSOR that relate to the functional, technical, operational and/or performance capabilities of the SOFTWARE (as defined herein); (b) all user, operator, system administration, installation, technical, training, instructional, support and other manuals, packages (including equations), and all other materials (including any medium or format) published or otherwise made available by or on behalf of LICENSOR that describe the functional, technical, operational and/or performance capabilities of the SOFTWARE; and any updates of the foregoing.
10. “TRADE SECRET” means the program structure, logic, data structures, design, processes, procedures, formulae, equations, and algorithms contained in the ordered set of instructions which together constitute SOFTWARE that may be disclosed by either SOFTWARE or DOCUMENTATION. TRADE SECRET does not include information which is publicly known, except by violation of this Agreement, through no fault of LICENSEE or LICENSEE’s employees, contractors, or agents; nor does it include information which is lawfully received by LICENSEE from a third party not bound in a confidential relationship to LICENSOR, nor information disclosed by LICENSOR to a third party without obligation of confidentiality.
11. “AFFILIATES” means, for only as long as such relationship exists, (i) LICENSEE, or (ii) any corporation, partnership or other entity controlled, under common control or controlling by LICENSEE with “control” meaning direct or indirect ownership of more than 50% of the capital stock or the voting rights in such corporation, partnership or other entity through one or more intermediaries.
12. “AUTHORIZED USERS” means employees and contractors of LICENSEE who are authorized by LICENSEE to operate SOFTWARE under this Agreement, and from whom LICENSEE has obtained agreement to operate and use (i) SOFTWARE on LICENSEE’s behalf only and (ii) in accordance with the terms and conditions of this Agreement as they apply to LICENSEE.
13. “ACTIVATION/UNLOCK EMAIL” means LICENSOR’s email to LICENSEE (or portal notice) communicating the Activation Code and the date on which SOFTWARE is enabled to operate in full-version mode (the “ACTIVATION DATE”). Delivery and transfer of control of SOFTWARE occurs on the ACTIVATION DATE or LICENSE TERM start date, whichever is later.
14. “ACTIVATION CODE” has the meaning given in “AUTHORIZE SOFTWARE.”
15. “Parties” means LICENSEE and LICENSOR.

2. OWNERSHIP OF SOFTWARE AND DOCUMENTATION

An express condition of Agreement is that LICENSOR or its licensors shall at all times retain ownership of the SOFTWARE, and intellectual property rights in and to SOFTWARE, as presented or recorded on the original media copy or copies and all subsequent copies of SOFTWARE, DERIVATIVE, DOCUMENTATION, any and all subsequent copies of DOCUMENTATION, regardless of the form or media in or on which the original and other copies may subsequently exist. All rights not expressly granted to LICENSEE are reserved by LICENSOR.

3. LICENSE GRANT

1. Subject to the terms and conditions herein and In consideration of LICENSEE agreeing to abide by the terms of this Agreement, and subject to all further restrictions, terms and conditions as set forth in the ORDER, LICENSOR grants LICENSEE and its AFFILIATES solely for LICENSEE’s own internal business purposes, a nonexclusive, nontransferable, non-sublicensable, terminable (see, e.g., Section 12 herein), limited license to use SOFTWARE in machine-readable form during the LICENSE TERM. Implied licenses are negated.
2. AUTHORIZED USERS may use or operate SOFTWARE, which is installed at the LICENSED GEOGRAPHIC LOCATION, only while actually physically located within or administratively based (e.g., employees working remotely) at LICENSED GEOGRAPHIC LOCATION, and only while employed or contracted by LICENSEE. Use or operation of SOFTWARE by employees or contractors of LICENSEE not authorized by LICENSEE to use the SOFTWARE, or not based at and actually physically located outside LICENSED GEOGRAPHIC LOCATION, whether through any form of computer network or by other means, is strictly prohibited and is a violation of this Agreement.
3. LICENSEE agrees and shall ensure that its AFFILIATES and its AUTHORIZED USERS agree to comply with the terms and conditions of the Agreement and such AUTHORIZED USERS agree not to use SOFTWARE or DOCUMENTATION licensed hereunder in any way beyond the scope of the Agreement. LICENSEE agrees and shall ensure that its AFFILIATES, its AUTHORIZED USERS agree to take all reasonable steps to protect SOFTWARE and DOCUMENTATION from unauthorized access, theft or from use by others contrary to the terms of this Agreement. LICENSEE agrees and shall ensure that its AFFILIATES and its AUTHORIZED USERS agree not to disclose or use any TRADE SECRET that is provided to LICENSEE and its AFFILIATES and its AUTHORIZED USERS in SOFTWARE, technical manuals, or DOCUMENTATION except as expressly permitted in accordance with the terms of this Agreement. In addition, LICENSEE agrees and shall ensure that its AFFILIATES and its AUTHORIZED USERS agree not to seek to discover or to disclose any TRADE SECRET by disassembling, decompiling, or otherwise reverse-engineering SOFTWARE.
4. The Parties agree that the LICENSEE shall remain responsible for all acts and omissions of its AFFILIATES, and AUTHORIZED USERS, including any breach by LICENSEE or its AFFILIATES, or its AUTHORIZED USERS, of any term of this Agreement.
5. If the ORDER lists multiple modules for a single bundled LICENSE FEE, those modules are delivered together and are intended to operate as an integrated configuration.

4. DELIVERY; ACCEPTANCE

1. The Parties agree that (a) delivery occurs and access of SOFTWARE transfers when LICENSOR issues the ACTIVATION/UNLOCK EMAIL and SOFTWARE is enabled in full-version mode, and (b) acceptance is deemed to occur on the ACTIVATION DATE without further testing or sign-off.
2. The SOFTWARE is functional intellectual property with static functionality as delivered. LICENSOR has no ongoing obligation to provide content or features that would significantly affect the SOFTWARE after the ACTIVATION DATE. Updates during the LICENSE TERM are maintenance, minor enhancements, or defect remediation only and are not new products or material new functionality.
3. LICENSOR does not host the production instance of the SOFTWARE; LICENSEE installs and operates the SOFTWARE in its own environment.

5. LICENSE

1. This Agreement remain in full force and effect for the LICENSE TERM, unless sooner terminated as provided herein.
2. For multi-year LICENSE TERMs, LICENSOR will either (i) issue a new ACTIVATION CODE at the start of each contract year, or (ii) where the ORDER so specifies, issue a single ACTIVATION CODE covering the full LICENSE TERM; the ORDER will indicate which approach applies.

6. GENERAL TERMS

1. In consideration of the Agreement, LICENSEE agrees and shall ensure that its AFFILIATES and AUTHORIZED USERS agree:
   1. that SOFTWARE and DOCUMENTATION are copyrighted by LICENSOR and remain the property of LICENSOR (SOFTWARE and DOCUMENTATION are protected under the copyright laws of the United States and/or equivalent international laws and treaties);
   2. not to disassemble, decompile, reverse-engineer, or attempt to disassemble or reverse-engineer, train AI or machine learning on, or attempt to decipher any code relating to the SOFTWARE or any part of SOFTWARE, or DOCUMENTATION, or create a DERIVATIVE, or modify, eliminate, crack, or circumvent any security, copy protection, or license management mechanism in SOFTWARE, or allow a third party or engage Artificial Intelligence (AI) to perform any of the foregoing;
   3. not to use any unlicensed versions of SOFTWARE;
   4. not to copy, allow anyone else to copy, or otherwise reproduce all or any part of SOFTWARE or DOCUMENTATION or translations of SOFTWARE or DOCUMENTATION without the express written consent of LICENSOR;
   5. that SOFTWARE shall only be installed on computer(s), server(s), network(s) or processor(s) that are at all times in LICENSEE’s full and complete care, custody and control and which apply adequate and commercially reasonable electronic, physical, and other LICENSEE’s safeguards appropriate to prevent unauthorized access to or unlawful use of SOFTWARE; and should said computer(s), server(s), network(s) or processor(s) cease being at all times in LICENSEE and its AFFILIATES full and complete care, custody and control, LICENSEE shall and shall ensure that its AFFILIATES and AUTHORIZED USERS shall immediately notify LICENSOR of same and shall, at LICENSOR’s direction, immediately DEAUTHORIZE SOFTWARE;
   6. not to use the SOFTWARE for competitive analyses or in benchmarking models of LICENSEE or of third parties;
   7. not to use SOFTWARE, DOCUMENTATION, or any portion thereof to train AI models;
   8. not to, including not to aid a third party to, use the SOFTWARE or DOCUMENTATION to create a competing software product or new functionality in any existing software;
   9. not to alter, remove or cover LICENSOR’s name, logos, proprietary notices, copyright notices, and trademarks from SOFTWARE, DOCUMENTATION, or any portion thereof; or
   10. not to share, sell, resell, market, rent, lease, charge, loan, distribute, lend, sublicense, redistribute or re-license, or otherwise transfer the SOFTWARE or the rights to access the SOFTWARE to, or allow use of the SOFTWARE or DOCUMENTATON by, any third party.
2. This Agreement contains the entire agreement between the LICENSOR and the LICENSEE relating to the licensing of the SOFTWARE, DOCUMENTATION and Support Services, and supersedes all prior oral or written understandings, arrangements, representations or agreements between them relating to the subject matter of this Agreement. In the event that any term or condition of any purchase order of LICENSEE conflicts with this Agreement, or adds obligations to, or bestows additional rights on, any party, such term or condition of such purchase order shall be null and void, and the terms and conditions of this Agreement shall prevail.
3. The failure of a LICENSOR to exercise or enforce any rights under this Agreement shall not amount to a waiver of those rights.
4. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of this Agreement.
5. The terms of this Agreement may not be amended by LICENSEE.
6. Headings included in this Agreement are for convenience only and are not to be used to interpret the agreement between the Parties.
7. Each and all of the provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their permitted assignees.
8. LICENSOR shall not be liable to the LICENSEE for any failure or delay caused by events beyond its reasonable control, including, without limitation, failure to furnish necessary information; sabotage; failure or delays in transportation or communication; failures or substitutions of equipment; labor disputes; accidents; shortages of labor, fuel, raw materials or equipment; or technical failures.
9. LICENSEE acknowledges that installation of and license management tool associated with the SOFTWARE may contain certain features that generate, collect, and transmit data to LICENSOR about the installation and setup of the SOFTWARE that identifies LICENSEE’s computer and systems peripheral to and associated with downloading or hosting the SOFTWARE (such as Internet Protocol Address, hardware identification, technical information, operating system, and SOFTWARE version, usage, support commonly referred to as the HOSTID); and LICENSEE agrees that this software installation and management information can be used by LICENSOR (I) to authenticate the SOFTWARE and for license verification and management, (II) to verify compliance with the terms of this Agreement; and (III) to enable LICENSOR to develop, improve, and support LICENSOR’s products and services. Except for the HOST ID, at no times will the information collected by the installation and management tool contain any personal data, confidential information or intellectual property rights of the LICENSEE or its AFFILIATES. The Parties may rely on the ACTIVATION/UNLOCK EMAIL (and corresponding activation logs) as the evidentiary record of delivery and enablement of SOFTWARE.
10. During the LICENSE TERM and for a period of one year following termination or expiration of the LICENSE TERM, LICENSOR and/or its independent auditors, reserve the right to remotely audit LICENSEE accounts for compliance with SOFTWARE access, usage, and subscription requirements. LICENSEE shall promptly cure any noncompliance, and if the audit reveals LICENSEE’s non-compliance, LICENSOR may terminate the Agreement and/or recover payment for usage of SOFTWARE in excess of the usage provided in the ORDER.

7. SUPPORT SERVICES

1. Subject to payment of all applicable LICENSE FEES, LICENSOR will provide LICENSEE support services (“Support Services”) in relation to the SOFTWARE as provided to the LICENSEE during the LICENSE TERM. Support Services shall be available via email at support@simulations-plus.com or such other mode of contact as shall be agreed to by the Parties during regular business hours (Los Angeles – Pacific Time). LICENSOR shall respond to all requests from LICENSEE for such Support Services within twenty-four (24) hours, and shall thereafter provide such Support Services within a reasonable time frame. The Parties acknowledge and agree that Support Services do not include customized training, consulting services or implementation services (unless otherwise provided in an Order or other written agreement between the Parties). All Support Services are provided on an “as is,” “where is” basis, and LICENSOR makes no warranties with respect to such Support Services. Support Services and SOFTWARE updates provided during the LICENSE TERM are included in the LICENSE FEE at no additional charge and are limited to maintenance, minor enhancements, and defect remediation; they do not include delivery of new products, new modules, or material new functionality. No service credit, rebate, or refund scheme applies to Support Services.
2. SOFTWARE updates, when released, are made available for download and installation on LICENSEE-controlled systems; LICENSOR does not host the production instance of SOFTWARE for LICENSEE. SOFTWARE updates during the LICENSE TERM shall be provided to LICENSEE and its AFFILIATES as they become available commercially; however, LICENSOR is not obligated to release updates or new versions of SOFTWARE during LICENSE TERM.
3. There is no obligation to provide Support Services with respect to: (i) use of any SOFTWARE on any computer system running other than the specified STATION and other than using the specified operating system software; (ii) use of any version of the SOFTWARE modified by LICENSEE in breach of this Agreement; or (iii) use of SOFTWARE in a manner not specified in the applicable DOCUMENTATION. LICENSOR has no obligation to modify any version of the SOFTWARE to run with new versions of the operating system software. LICENSOR reserves the right to provide Support Services only to the most current version of SOFTWARE previously released to LICENSEE.

8. AI FEATURES OF SOFTWARE

1. SOFTWARE may be provided with AI features, use of which may be enabled or disabled by LICENSEE.
2. Outputs generated from use of such AI features by LICENSEE (AI Outputs) are for general informational purposes only, and are not intended to be, nor should be relied upon as legal, medical, financial, tax, or other professional advice. It is LICENSEE’s responsibility to ensure, by human review and otherwise, that AI Output is accurate and appropriate for its use case.
3. AI Output is excluded from Infringement claims in Section 14 of the Agreement. LICENSOR shall have no liability for any claim, suit or proceeding brought against LICENSEE based on an allegation that such AI Output infringes any property right, trademark, patent or copyright or violates any trade secret rights of any third party.
4. LICENSEE will not use such AI features to, or cause the LICENSOR to, violate any applicable laws or regulations.

9. INTELLECTUAL PROPERTY

1. SOFTWARE and DOCUMENTATION and all associated copyrights, trademarks, TRADE SECRETS, and other intellectual property rights are the property of LICENSOR. LICENSEE acquires no title, right or interest in SOFTWARE, DOCUMENTATION, or associated intellectual property rights other than the license rights specifically granted herein.
2. Certain SOFTWARE may contain Open Source Software that is governed by the open source licenses identified in the SOFTWARE or DOCUMENTATION.

10. PAYMENTS

1. In consideration of rights granted in the Agreement herein, LICENSEE agrees to pay the LICENSE FEES in accordance with the ORDER and within the timeline for payment specified in accepted ORDER by or on behalf of LICENSOR.
2. In the event LICENSOR is in material breach of this Agreement in relation to providing the SOFTWARE, the LICENSEE shall receive a prorated refund of all LICENSE FEES paid for the remainder of the LICENSE TERM.
3. LICENSE FEES stated in the ORDER are fixed for the stated LICENSE TERM and are not contingent on usage, performance, or other future events. No rebates, refunds, offsets, or credits apply except as expressly stated in this Agreement. LICENSEE acknowledges and agrees that upon the delivery of SOFTWARE by LICENSOR, the LICENSE FEES shall become payable in full in accordance with the terms and conditions of this Agreement. The LICENSEE’s obligation to remit payment shall not be contingent upon the actual use of the licensed SOFTWARE. If LICENSEE purchases a multi-year LICENSE TERM for any SOFTWARE, or a multi-year renewal for any SOFTWARE, the purchase is for the full value of LICENSE FEES stated in the ORDER and is non-cancellable during the LICENSE TERM stated in the ORDER, even if required LICENSE FEE payments are annual. In the event LICENSEE fails to pay any annual LICENSE FEE payment, and such default shall continue for a period of thirty (30) days, then all remaining LICENSE FEE amounts for the relevant LICENSE TERM or renewal shall become immediately due and payable.

11. ASSIGNMENT

1. LICENSEE may not and shall ensure that its AFFILIATES may not sell, lease, rent, loan, assign, sublicense or otherwise transfer, in whole or in part, this Agreement, the SOFTWARE, DOCUMENTATION or other LICENSOR-provided materials or services, or any LICENSEE’s rights or obligations granted hereunder, without the prior written consent of LICENSOR. Any purported assignment or transfer in violation of this Section shall be void.

12. TERMINATION

1. Subject to the surviving terms expressly set forth in Section 12 and surviving Sections 13, and Section 14 g) and h), this Agreement shall expire at the end of the LICENSE TERM unless earlier terminated as expressly set forth herein.
2. Termination by LICENSEE is only permitted in the event of a material breach by the LICENSOR. A breach is “material” if it is so substantial that it undermines the entire Agreement, depriving LICENSEE of the benefit it was expecting. LICENSEE may, by notice in writing to LICENSOR, terminate this Agreement at any time the LICENSOR commits a material breach of this Agreement. Notice shall be addressed to LICENSOR at and be delivered not less than thirty (30) days prior to termination by registered mail, return receipt requested.
3. On the date of any termination or expiration of the Agreement, LICENSEE shall cease to use SOFTWARE AND DOCUMENTATION and shall, at LICENSOR’s direction, either destroy or return to LICENSOR, SOFTWARE including DOCUMENTATION together with LICENSEE’s written certification that this Section 12 c) has been complied with in full. In any such event, the Agreement and rights granted hereunder shall expire and LICENSEE shall have no further rights or access to SOFTWARE and DOCUMENTATION. Prohibitions in this Agreement set forth in Section 6 a) by LICENSEE and its AUTHORIZED USERS shall survive any termination or expiration of this Agreement.
4. Any use of the SOFTWARE or DOCUMENTATION in violation of this Agreement will automatically terminate LICENSEE’s rights under this Agreement for the current and all other versions of the SOFTWARE and DOCUMENTATION.
5. LICENSOR may terminate this Agreement if LICENSEE has not paid the LICENSE FEES due within 15 calendar days after written notice that payment is past due.
6. On the date of termination or expiration of this Agreement, LICENSEE shall DEAUTHORIZE SOFTWARE.
7. Termination of this Agreement by LICENSOR shall be in addition to and not a waiver of any remedy available to LICENSOR.
8. For clarity, there is no right of return of LICENSE FEEs, except to the extent affected by a material breach by LICENSOR as provided in Section 10 b).

13. CONFIDENTIALITY & DATA PRIVACY

1. LICENSEE may receive and shall keep, and shall ensure that its AFFILIATES and AUTHORIZED USERS shall keep, confidential and restrict the use to the licensed use, of any and all (i) design details and functionality about SOFTWARE or any part thereof, (ii) nonpublic information regarding LICENSOR’s products, implementation, and pricing (which are hereby deemed as Confidential Information of LICENSOR); and shall not disclose it to any third party other than its employees and agents with a need to know it for purposes of LICENSEE’S business who are bound by similar obligations, without the express written consent of LICENSOR.
2. By virtue of this Agreement, LICENSOR may disclose Confidential Information to LICENSEE. Confidential Information is limited to all information that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. LICENSOR Confidential Information does not include information that: (i) legally is or becomes a part of the public domain through no act or omission of the LICENSEE; (ii) was in LICENSEE’s lawful possession prior to the disclosure by or on behalf of LICENSOR and had not been obtained by the LICENSEE either directly or indirectly from the LICENSOR; (iii) is lawfully disclosed to the LICENSEE  by a third party without restriction on the disclosure; or (iv) is independently developed by the LICENSEE without use , reference to, or with the aid of Confidential Information. The Software, Documentation, Support Services process, and other credentials or pricing for the SOFTWARE and other terms of the Agreement are LICENSOR’s Confidential Information. LICENSEE shall take industry standard technical, physical, and administrative measures as may be necessary to prevent unauthorized access, use or disclosure of Confidential Information and shall immediately notify LICENSOR in writing in the event of a breach of confidentiality and restricted use.
3. LICENSEE will not disclose Confidential Information to any third party except as required by applicable law, statute, regulation, or court order lawfully demanding the disclosure of any of Confidential Information, and LICENSEE will give LICENSOR prompt written notice of such requirement to the extent legally permissible and a reasonable opportunity to object to such disclosure and to seek, at LICENSOR’s reasonable cost and expense, a protective order or appropriate remedy.
4. The Parties agree and acknowledge that the Data Processing Agreement (“DPA”), attached hereto as Schedule A, sets forth the obligations with respect to processing personal data as necessary to perform their respective obligations under the Agreement.

14. LIMITED WARRANTY/LIMITATIONS ON LIABILITY

1. LICENSOR warrants that LICENSOR will not seek to obtain any rights to use the Output generated by LICENSEE from the utilization of the SOFTWARE in accordance with the terms of the Agreement. “Output” means digital work or file as a result of information input by LICENSEE into the SOFTWARE and generated by the SOFTWARE, while strictly not containing the source code, application, environment, or any component of the SOFTWARE that generated it.
2. LICENSOR warrants for a period of ninety [90] days from the date the SOFTWARE is delivered or installed, that the SOFTWARE, unless modified by LICENSEE or its AFFILIATES or unless LICENSEE fails to use updated or corrected versions of SOFTWARE provided to it by LICENSOR, will conform in all material and workmanship respects to the DOCUMENTATION provided by LICENSOR.
3. LICENSOR warrants that the DOCUMENTATION contains an accurate and complete description of the material functions of the SOFTWARE and the use thereof, and if relevant, the DOCUMENTATION will be updated to reflect all material updates (LICENSOR expressly reserves the right to provide DOCUMENTATION on the same media or delivery method as SOFTWARE).
4. LICENSOR does not warrant that (1) SOFTWARE will meet LICENSEE’s specific requirements, provided however, that it will meet the requirements specified in DOCUMENTATION; and (2) operation of SOFTWARE shall be uninterrupted or error free. LICENSOR shall use commercially reasonable effort to assure that SOFTWARE meets the required specifications set forth in the DOCUMENTATION.
5. LICENSEE assumes complete responsibility for decisions made or actions taken based on information obtained or Output generated from using SOFTWARE. Any statements made concerning the utility of SOFTWARE are not to be construed as expressed or implied warranties. LICENSEE has sole responsibility for the accuracy, quality, integrity, legality, reliability, use, and appropriateness of any input by it when using the SOFTWARE, as well as that of any Output.
6. LICENSOR warrants that to its knowledge. use of SOFTWARE in accordance with the terms and conditions herein will not infringe the intellectual property rights of any third party. If all or any part of the SOFTWARE is, or in the opinion of LICENSOR may become, the subject of any claim or suit for infringement of any intellectual property rights of a third party, LICENSOR may, and in the event of any adjudication that the SOFTWARE or any part thereof does infringe or if the use of the SOFTWARE or any part thereof is enjoined, LICENSOR at its expense, shall either: (1) procure for LICENSEE the right to use the SOFTWARE, or the affected part thereof, in accordance with the terms of this Agreement; (2) replace the SOFTWARE or affected part; (3) modify the SOFTWARE or affected part to make it non-infringing; or (4) if none of the foregoing remedies are commercially feasible, refund payment made by LICENSEE for the SOFTWARE or the affected part thereof for the remainder of the LICENSE TERM. LICENSOR shall have no obligation under this Section 14 f) to the extent a claim is based upon (A) use of any version of the SOFTWARE other than a current, unaltered version, if infringement would have been avoided by a current, unaltered version; or (B) combination, operation or use of the SOFTWARE with software and/or hardware not delivered by LICENSOR if such infringement could have been avoided by combination, operation or use of the SOFTWARE with other software and/or hardware. This Section 14 f) states the entire liability of LICENSOR and the exclusive remedy of LICENSEE with respect to any infringement or alleged infringement by the SOFTWARE or any part thereof.
7. WHEN ACCESSING AND USING THE SOFTWARE, LICENSEE AGREE TO COMPLY WITH ALL APPLICABLE LAWS FROM THE COUNTRY, STATE AND CITY IN WHICH IT IS PRESENT. LICENSOR PROVIDES THE SOFTWARE, DOCUMENTATION, AND SUPPORT SERVICES “AS IS,” ‘WHERE IS,” AND “AS AVAILABLE” WITH ALL FAULTS. THE FOREGOING EXPRESS LIMITED WARRAN-TIES ARE IN LIEU OF AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SOFTWARE, DOCUMENTATION, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. LICENSOR IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SOFTWARE OR SUPPORT SERVICES THAT ARISE FROM LICENSEE SYSTEMS, CONTENT OR MATERIALS OR THIRD-PARTY SYSTEMS OR MATERIALS. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR TO ANY OTHER PARTY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, INCLUDING BUT NOT LIMITED TO ECONOMIC LOSS OF ANY KIND SUCH AS LOSS OF BUSINESS OPPORTUNITY, LOSS OF PROFITS OR SAVINGS, COSTS ARISING FROM RELIANCE ON FAULTY OUTPUT, COSTS OF CAPITAL, INJURY TO GOODWILL, LOSS OF PRODUCTIVITY OR LOSS OF OR INJURY TO PROPERTY,
8. THE TOTAL LIABILITY, IF ANY, OF LICENSOR, INCLUDING BUT NOT LIMITED TO LIABILITY ARISING OUT REGARDLESS OF WHETHER A PARTY IS ADVISED, HAS OTHER REASON TO KNOW, OR KNOWS OF THE POSSIBILITY THEREOF. OF CONTRACT, TORT, BREACH OF WARRANTY, CLAIMS BY THIRD PARTIES OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE LICENSE FEES PAID BY LICENSEE FOR THE SOFTWARE WHICH GAVE RISE TO THE CLAIM. LICENSOR SHALL NOT BE LIABLE FOR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OR INACCURACY OF DATA, LOSS OF LICENSEES’s GOODWILL OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

15. JURISDICTION

This Agreement shall be construed as having been made in and under the laws of the State of California in the United States of America, and shall be subject to the construction placed upon it by the courts of the State of California without regard to their choice of law principles. The Parties agree to personal jurisdiction and venue in the state and federal courts of Los Angeles, California in any suit or proceeding arising out of the subject matter of this Agreement. This Agreement is provided in the English language and this English language version shall be the only legally binding version. Notwithstanding the foregoing, LICENSOR will be entitled to bring actions relating to the protection of its intellectual property rights in the SOFTWARE and DOCUMENTATION in the courts of any territory where any infringement occurs or is alleged to occur. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM RELATING TO THIS AGREEMENT ARISING OUT OF OR RELATING TO SUCH CONTROVERSIES.

16. US GOVERNMENT CONTRACTS

If the SOFTWARE is accessed or acquired by or on behalf of a unit or agency of the United States Government, the Government hereby agrees that the SOFTWARE is provided with restricted rights and is a “commercial item,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Use, duplication, or disclosure by U.S. Government agencies or contractors is subject to the restrictions as set forth in 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, and other applicable provisions, or in successor provisions, as well as the limitations set forth in this Agreement.

17. EXPORT CONTROL

The Parties acknowledge that any products, software, and technical information (including, but not limited to, services) provided by LICENSOR under this Agreement are or may be subject to export laws and regulations of the applicable country of origin of the SOFTWARE and the destination country(ies) (“export Laws”) and any use or transfer of such products, software and technical information must be authorized under those export Laws. The Parties agree that they will not use, distribute, transfer or transmit such products, software or technical information (even if incorporated into other products) except in compliance with export Laws. If requested by LICENSOR, the LICENSEE agrees to sign all necessary export related documents as may be required to comply with export Laws.

18. GENERAL

1. If any part of this Agreement is found to be void and unenforceable, it will not affect the validity of the remainder of this Agreement, which shall remain valid and enforceable according to its terms.
2. LICENSEE has not relied on any statement, representation, advertising, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement.
3. To support any applicable Sales and Use tax exempt status of electronically downloaded software, as well as related to customization of the SOFTWARE for LICENSEE’s particular use, it is acknowledged by the Parties that (a) this is a license of SOFTWARE and portions thereof, and not a sale; and (b) SOFTWARE and portions thereof shall only be made available to LICENSEE under this Agreement via electronic download, and that no tangible media or documentation will be available or shipped under this Agreement.
4. Notices to LICENSOR under this Agreement shall be sent to: legal@simulations-plus.com.