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Irazu EULA Agreement
Irazu EULA Agreement
Irazu EULA Agreement
GEOMECHANICA INC.
IRAZU™
End User License Agreement
Name of Customer:
Address of Customer:
1. DEFINITIONS.
As used herein:
“
Agreement
” or “ ” means the End User License Agreement.
EULA
" " refers to Geomechanica Inc.
Geomechanica
" " refers to the person that has licensed software from Geomechanica and who has signed this Agreement.
Customer
"
Licensed " refers to Geomechanica's Irazu™ software and any Updates or Upgrades.
Software
Designated
" Equipment " refers to a single desktop computer for which Customer has ordered the Licensed
Software so long as such computer is approved by Geomechanica.
“Cloud Service” refers to a remote computing service maintained and operated by Geomechanica for the purpose of
running Customer simulations.
“
Trial Version” means a version of the Licensed Software, so identified, to be used only to review, demonstrate and
evaluate the Software for a limited time period. The Trial Version may have limited features, may lack the ability for
the enduser to save the end product, and will cease operating after a predetermined amount.
"
Documentation " means the Geomechanica user manuals, technical specifications and user instructions regarding
the operation, installation and use of the Licensed Software as made available by Geomechanica to Customer.
Permitted
" Users
" means all employees, students, and teaching and research personnel of Customer who, subject to
compliance with the software license granted below, are authorized by Customer to use the Licensed Software.
"
Upgrade " means, unless otherwise determined by Geomechanica, any modification or upgrade of the Licensed
Software made by Geomechanica that adds material functional capabilities or new applications to the Licensed
Software and that is generally provided by Geomechanica to customers of the Licensed Software, and is not solely:
(a) an error correction; or (b) an Update or a part thereof.
"
Update " means, unless otherwise determined by Geomechanica, any modification, update, improvement, or error
correction for Customer or others made by Geomechanica to the Licensed Software that is generally provided by
Geomechanica to customers of the Licensed Software.
"
Error
" means any Licensed Softwarerelated problem that results from a failure of the Licensed Software to
conform in any material respect to the Specifications.
"
Specifications
" means the functions, features and technical specifications of the Licensed Software set forth in the
Documentation.
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2. LICENSE.
(iii) the Customer may run simulations generated by the Licensed Software on
Geomechanica’s Cloud Service, with the maximum number of concurrently running
simulations in accordance with the purchased subscription; and
(iv) the Licensed Software and the results from use of the Licensed Software shall be used
only for notforprofit research and development activities of Customer.
(b) Restrictions . Neither Customer nor its Permitted Users may: (i) make copies of the Licensed
Software or Trial Version (other than as authorized in Section 2(a)); (ii) distribute the Licensed
Software or Trial Version to others; or (iii) electronically or otherwise transfer the Licensed
Software or Trial Version to any person or to any equipment (other than the Designated
Equipment). Except as strictly necessary for Customer to exercise the express rights described in
Section 2(a) above, NEITHER CUSTOMER NOR ITS PERMITTED USERS MAY, NOR MAY
CUSTOMER OR ITS PERMITTED USERS AUTHORIZE OR PERMIT, ANY PERSON TO
MODIFY, ADAPT, TRANSLATE, RENT, LEASE, SUBLICENSE, LOAN, RESELL,
DISPLAY, USE, ACCESS, DISTRIBUTE, NETWORK, OR CREATE DERIVATIVE WORKS
BASED UPON, THE LICENSED SOFTWARE OR ANY PART THEREOF. Neither Customer
nor its Permitted Users may, nor may Customer or its Permitted Users authorize or permit any
person to, either directly or indirectly, decompile, reverse engineer, disassemble, or otherwise
reduce the Licensed Software or Trial Version to a humanperceivable form or derive the source
code for the Licensed Software. Unless otherwise provided herein, neither Customer nor its
Permitted User shall (A) in the aggregate, install or use more than one copy of the Trial Version of
the Software, (B) download the Trial Version of the Software under more than one username, (C)
alter the contents of a hard drive or computer system to enable the use of the Trial Version of the
Software for an aggregate period in excess of the trial period for one license to such Trial Version,
(D) disclose the results of software performance benchmarks obtained using the Trial Version to
any third party without Geomechanica’s prior written consent, (E) use the Trial Version for any
application deployment or ultimate production purpose, or (F) use the Trial Version of the
Software for a purpose other than the sole purpose of determining whether to purchase a license to
a commercial or academic version of the software; notwithstanding the foregoing, the Customer
and its Permitted Users are strictly prohibited from installing or using the Trial Version of the
Software for any commercial training purpose.
(c) Intellectual Property Rights . As between Customer and Geomechanica, Geomechanica is and
shall remain the sole owner of all right, title, and interest in and to the Licensed Software,
including all Upgrades, Updates, and Error Corrections, and to the Documentation and to all
intellectual property rights embodied therein or related thereto. No rights thereto are granted
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(whether by implied license or otherwise), to Customer, except as specifically provided in Section
2(a) hereof. If Customer or its personnel acquire any right, title, or interest therein, Customer
hereby assigns all such right, title and interest to Geomechanica. Geomechanica hereby reserves
any and all rights in and to the Licensed Software and Documentation that are not expressly
granted or otherwise transferred to Customer in Section 2(a) above.
(d) Relief for Breach . Customer agrees that breach of this Section 2 or Section 6 will cause
irreparable harm to Geomechanica for which the award of money damages may be inadequate.
Customer agrees that in the event of any breach of this provision, Geomechanica shall be entitled
to seek injunctive relief, in addition to seeking any other legal or equitable remedies available to
Geomechanica. This paragraph shall survive termination of this Agreement.
(e) Fees. Customer is obligated to pay any fees under this Agreement for the grant of the Licensed
Software under this Agreement. Customer acknowledges and agrees that it may be charged such
fees, and Customer agrees to pay all such fees when due.
3. WARRANTIES.
Geomechanica warrants that the Licensed Software will perform substantially without Errors
when operated on the Designated Equipment. If Geomechanica cannot substantially correct a
breach of this warranty in a commercially reasonable manner within ninety days after receiving
written notice from Customer (so long as Customer provides notice by way of email to
Geomechanica that includes reasonable information for Geomechanica to assess the Error
including a description of the Error and all input/output files to reproduce the Error), Customer
may terminate this EULA and obtain a refund of the applicable fees paid for the Licensed
Software on a prorated basis. Additionally, Geomechanica warrants that the Cloud Service will
remain operational. In the case of any interruption of Cloud Service exceeding 12 hours, the
Customer’s subscription to the Cloud Service will be extended free of charge by a time equal to
the duration of the interruption. Notwithstanding the foregoing provisions, Geomechanica shall
not have any obligations regarding the foregoing provisions if Geomechanica determines that
Customer’s notice under this paragraph does not disclose a breach of this warranty. This
paragraph states Customer's exclusive remedy for a breach of this warranty. GEOMECHANICA
DOES NOT GUARANTEE THAT THE LICENSED SOFTWARE WILL PERFORM
ERRORFREE OR UNINTERRUPTED OR THAT GEOMECHANICA WILL CORRECT ALL
ERRORS. EXCEPT AS SET FORTH HEREIN, NO OTHER CONDITION OR WARRANTY
WITH RESPECT TO THE LICENSED SOFTWARE IS MADE BY GEOMECHANICA AND
GEOMECHANICA EXPRESSLY DISCLAIMS ANY OTHER CONDITIONS OR
WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITION OR
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
DATA ACCURACY OR INTEGRITY OR NONINFRINGEMENT.
The warranties do not apply:
(a) if Customer fails to follow in all material respects Geomechanica's recommendations or
instructions including with respect to equipment required to operate the Licensed Software;
(b) the Customer uses or combines the Licensed Software with products or services of others or with
products or services incompatible with products or services of Geomechanica;
(c) the Customer is in breach of this Agreement; or
(d) the Customer has not installed all Updates or Upgrades that are made available by Geomechanica.
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4. INFRINGEMENT INDEMNIFICATION.
Geomechanica will defend Customer against any claim against Customer by a third party that
alleges that the Licensed Software infringes such third party's Canadian patent or copyright, but
only if Geomechanica is notified promptly in writing of such claim, Customer provides reasonable
assistance and information to Geomechanica to perform its duties under this paragraph and
Geomechanica is given sole control of the defense and all related settlement negotiations relating
to it. If Geomechanica believes that the Licensed Software may have violated a third party's
intellectual property rights, Geomechanica will choose to either modify the applicable Licensed
Software or obtain a license to allow for Customer's continued use, or if these alternatives are not
commercially reasonable, Geomechanica may terminate the license for the applicable Licensed
Software and refund the applicable fees paid for the Licensed Software on a prorated basis.
Geomechanica will not indemnify Customer if Customer alters the Licensed Software or if
Customer uses a Licensed Software version that has been superseded, if the infringement claim
could have been avoided by using an unaltered current version of the Licensed Software that was
provided by Geomechanica to users or if the Licensed Software is used other than in accordance
with this EULA and the Documentation. This paragraph provides Customer's sole and exclusive
remedy for any infringement claims or damages.
5. CUSTOMER'S SOLE RESPONSIBILITY FOR RESULTS.
Customer acknowledges and agrees that Customer and its Permitted Users are solely responsible
for all results that arise through, and all decisions that are made as a consequence of, the use of the
Licensed Software. Geomechanica makes no warranty or other agreement that the Licensed
Software will meet Customer’s requirements.
6. CONFIDENTIALITY.
Each party will treat the terms of this EULA and the other party's written, proprietary business
information as confidential as long as it is marked as confidential or proprietary. Customer shall
treat Geomechanica's (and Geomechanica's third party vendors') Licensed Software,
Documentation and technical information as confidential information whether or not marked as
confidential and shall keep in confidence and shall not use or disclose to any third parties any such
confidential information except as specifically permitted in this EULA or as required by law (with
reasonable prior notice to Geomechanica).
The receiving party shall have no obligations with respect to any information which
(ii) was in the possession of the receiving party prior to its disclosure or transfer and the
receiving party can so prove,
(iii) is independently developed by the receiving party and the receiving party can so prove,
or
(iv) is received from another source without any restriction on use or disclosure.
This Section shall survive termination of this Agreement.
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7. AUDIT RIGHTS.
Customer agrees to permit Geomechanica to electronically monitor and audit Customer's use of
the Licensed Software. Geomechanica may disable Customer’s use of the Licensed Software
electronically for any period that Customer breaches a provision of this Agreement. In addition,
upon 15 days’ notice, Geomechanica may audit Customer's use of the Licensed Software manually
or by other reasonable means. Customer agrees to cooperate with Geomechanica's audit and
provide Geomechanica with reasonable assistance and access to information.
8. DATA ACCESS.
Customer shall permit Geomechanica to connect to the Licensed Software, or to otherwise access
performance data related to the Licensed Software, to gather and use Licensed Software and
resource usage data in various ways such as product development, quality initiatives,
benchmarking and reporting services. The data collected by Geomechanica will be used, during
and after the term of this EULA, in accordance with all applicable laws and regulations and in a
manner that will maintain confidentiality.
9. SUPPORT, MAINTENANCE AND ASSISTANCE.
(a) Updates and Upgrades . Updates will be made available to Customer at no cost so long as this
Agreement is in effect. Geomechanica may also make available Upgrades to Customer at
additional cost to Customer. Notwithstanding any other provision of this Agreement,
Geomechanica shall determine whether an item is an Update or an Upgrade in its sole discretion.
Customer acknowledges and agrees that any Upgrades may require Customer to incur additional
costs for hardware or otherwise.
(b) Support and Assistance . Email and telephone support will be provided by Geomechanica at no
charge to assist Customer in Licensed Software installation and for the general understanding of
the environment of the Licensed Software; however, problemspecific support will not be
provided free of charge and must be purchased by Customer from Geomechanica. In addition,
technical support covering modelling questions, applications, definitions and interpretation of
results, design guidelines and similar support may be purchased from Geomechanica. Consulting
support may be purchased from Geomechanica if the Customer requires substantial amounts of
assistance. In all instances, Customer must send the problem description to Geomechanica by
email in order to minimize the amount of time spent attempting to define the problem.
Geomechanica shall have sole discretion to determine whether any request for support or other
assistance will be with or without charge, and all support (whether with or without charge) will be
offered and provided in accordance with Geomechanica’s practices and policies in effect from
time to time. Unless otherwise determined by Geomechanica, Customer shall not be entitled to
any benefits under Section 9 unless the Customer has installed all Updates and Upgrades that are
made available by Geomechanica.
10. TERM AND TERMINATION.
(a) Agreement term and termination. This Agreement commences on the date the Customer first
accepts it and will remain in effect until the expiration, termination, or renewal of the Cloud
Service Subscription, whichever is earliest.
(b) Geomechanica may terminate this Agreement effective immediately upon written notice to
Customer if Customer breaches Geomechanica’s intellectual property rights, Customer breaches
Sections 2(a) or (b), or Customer fails to comply with any other provision in this Agreement and
has not cured such failure within 21 days after written notice. Upon termination of this Agreement
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for any reason, Customer must immediately destroy the Licensed Software and Documentation,
together with all copies in any media, and certify to Geomechanica that the Licensed Software and
Documentation have been destroyed.
11. DISPUTE RESOLUTION; LIMITATION OF LIABILITY.
The laws of the Province of Ontario will govern any dispute between the parties. The parties
attorn to this jurisdiction of the courts of the Province of Ontario. GEOMECHANICA'S
AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS EULA (INCLUDING
WITHOUT LIMITATION ITS LIABILITY UNDER SECTION 4), REGARDLESS OF THE
FORM OF THE ACTION (CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED
THE FEES PAID BY CUSTOMER FOR THE LICENSED SOFTWARE, OR IF CUSTOMER
HAS NOT PAID ANY SUCH FEES, SUCH LIABILITY SHALL NOT EXCEED $10.00.
GEOMECHANICA IN ANY EVENT SHALL NOT HAVE ANY LIABILITY TO THE
CUSTOMER FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF
TIME, LOSS OF DATA OR LOSS OF BENEFITS, EVEN IF GEOMECHANICA IS ADVISED
OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
12. LAWS.
The parties each agree to comply with all applicable laws and regulations. Customer may not
import, export or reexport the Licensed Software or any copy in violation of any applicable laws
or regulations.
13. AMENDMENT.
Geomechanica shall have the option to amend the provisions of this Agreement by giving
Customer at least 30 days’ prior written notice of any such amendment. Customer shall have the
option to terminate the Agreement after receipt of such notice by giving written notice to
Geomechanica prior to the effective date of any such amendment.
14. GENERAL.
This EULA constitutes the complete agreement for Customer's license and use of the Licensed
Software and this EULA supersedes all prior or contemporaneous agreements or representations
regarding Customer's license or use of the Licensed Software. The terms contained in this EULA
supersede and prevail over any terms and conditions that might be included in Customer's
purchase order(s), or any other Customer or document. Notice shall be deemed received by
Customer on the date of delivery (if delivered by commercial courier) or 5 days after mailing (if
mailed by registered or certified mail) to Customer’s address on page one hereof. Each licensor of
third party software shall be a third party beneficiary of this EULA with respect to the
enforcement of its intellectual property rights to the maximum extent permitted by law. All
remedies in this Agreement are cumulative, and do not exclude any other legal or equitable
remedy. This EULA may not be amended (and any provision of it may not be waived) except by a
writing executed by an authorized representative of Geomechanica and Customer. If any term of
this EULA is found to be invalid or unenforceable, the remaining provisions will remain effective.
Customer may not assign this EULA in whole or in part or directly or indirectly to another person.
The parties confirm that it is their wish that this Agreement, as well as other documents relating
hereto, including notices, have been and shall be drawn up in the English language only. Les
parties aux présentes conferment que c’est leur volenté que la présente convention, de meme que
tous les documents, y compris les avis, qui s’y rattachent, soient rédigés en anglais seulement.
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Effective Date of this Agreement:
GEOMECHANICA INC. Name of
Customer:
By: By:
Signature Signature
Name: Giovanni Grasselli Name:
Title: President Title:
I have authority to bind the Corporation I/We have authority to bind the Customer
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