License Agreement

              CLICKWRAP SOFTWARE LICENSE AGREEMENT

                      Version October 31, 2022

***IF LICENSEE HAS PREVIOUSLY AGREED IN WRITING TO A SOFTWARE LICENSE AGREEMENT WITH LICENSOR THAT SPECIFICALLY GOVERNS USE OF THE PROGRAM(S), SUCH SOFTWARE LICENSE AGREEMENT SUPERSEDES AND REPLACES THIS CLICKWRAP SOFTWARE LICENSE AGREEMENT, AND THIS CLICKWRAP SOFTWARE LICENSE AGREEMENT IS VOID.***

**LICENSOR MAY EMBED THE PROGRAM(S) WITH LICENSE COMPLIANCE TECHNOLOGY THAT, IF MODIFICATIONS TO CERTAIN CODE FILES OF THE PROGRAM(S) HAVE BEEN MADE OR IF THERE IS SUSPECTED OR CONFIRMED UNAUTHORIZED ACCESS TO OR USE OF THE PROGRAM(S), REPORTS IDENTIFICATION INFORMATION TO LICENSOR, INCLUDING GEOGRAPHIC LOCATION INFORMATION. LICENSEE MUST FULLY READ AND UNDERSTAND SECTION 11 (HEREIN) PRIOR TO ACCEPTANCE. **

If you have a previous written software license agreement as described in the preceding paragraph, you may proceed with installation by clicking the "I AGREE" button (or the button below otherwise indicating your agreement to the terms).

By clicking “I AGREE” (or the button below otherwise indicating your agreement to the terms), you also agree to the Ansys Global Privacy Notice (ansys.com/privacy) to the extent applicable.

NOTWITHSTANDING THE FOREGOING OR ANY TERM OF A WRITTEN SOFTWARE LICENSE AGREEMENT, OTHER THAN A NEW TECHNOLOGY EXPLORATION LICENSE AND NONDISCLOSURE AGREEMENT (“WRITTEN BETA AGREEMENT”), LICENSEE IS NOT ENTITLED TO USE BETA VERSIONS OF THE PROGRAM(S) UNDER THE TERMS OF A WRITTEN SOFTWARE LICENSE AGREEMENT. THIS CLICKWRAP SOFTWARE LICENSE AGREEMENT SOLELY GOVERNS USE OF BETA VERSIONS OF THE PROGRAM(S) EXCEPT IF YOU HAVE A WRITTEN BETA AGREEMENT.  IF YOU HAVE A WRITTEN BETA AGREEMENT, THE TERMS OF THE WRITTEN BETA AGREEMENT WOULD SUPERSEDE AND REPLACE THIS CLICKWRAP SOFTWARE LICENSE AGREEMENT.

If you require a printed version of this Clickwrap Software License Agreement prior to accepting these terms and conditions, please print this Clickwrap Software License Agreement and click "I DO NOT AGREE" (or the button below otherwise indicating that you do not accept the terms) and go to LICENSE.TXT in the installation to retrieve and print this Clickwrap Software License Agreement.

READ THIS CLICKWRAP SOFTWARE LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE PROCEEDING.  THIS IS A LEGALLY BINDING CONTRACT BETWEEN LICENSEE AND LICENSOR FOR LICENSEE TO USE THE PROGRAM(S), AND IT INCLUDES DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY.

BY CLICKING THE "I AGREE" BUTTON LICENSEE'S AUTHORIZED REPRESENTATIVE LEGALLY BINDS LICENSEE TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT AND, TO THE EXTENT APPLICABLE, TO THE TERMS OF THE ANSYS GLOBAL PRIVACY NOTICE (ANSYS.COM/PRIVACY).

IF LICENSEE DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CLICK THE "I DO NOT AGREE" BUTTON INDICATING NON-ACCEPTANCE, PROMPTLY REMOVE THE PROGRAM(S) FROM LICENSEE'S COMPUTER(S) AND RETURN THE SOFTWARE AND ALL RELATED DISKS AND DOCUMENTATION WITHIN THIRTY (30) DAYS TO LICENSOR, OR ITS AUTHORIZED CHANNEL PARTNER FROM WHOM LICENSEE OBTAINED THE PROGRAM(S), AND LICENSEE WILL RECEIVE A FULL REFUND.

1. DEFINITIONS

A.     "Affiliate" of a company means any person or other entity directly or indirectly controlling, controlled by, or under common control of such company.  A joint venture shall not be considered an Affiliate of either party.

B.    “Beta Version” means a pre-release version of the Program(s).

C.     "Channel Partner" means Licensor’s Affiliate or an unaffiliated business entity that is authorized by Licensor to distribute and/or support Program(s).

D.    "Contract User(s)" means an individual or entity, not a regular employee of Licensee or its Affiliates, who is engaged to perform Licensee's or its Affiliates’ internal data processing services.

E.    “Database” means an organized collection of Data that enables Licensee to easily access the Data.

F.     "Designated Network" means the local area network identified per the License Key, or, if the Program(s) are not controlled by a License Key, the local area network/computer on which Licensee intends to install the Program(s) as initially identified by Licensee to Licensor or Channel Partner.

G.     "Designated Site" means Licensee's physical location where use of the Program(s) is authorized by Licensor.

H.     "Effective Date of Program(s)" means the date specified in the License Key as the start date for the Program(s).  If there is no License Key, then "Effective Date of Program(s)" means the date on which the Program(s) were first installed by Licensee.

I.    “LAN License” means a license of the Program(s) that permits Licensee’s and its Affiliates’ employees and Contract Users located within a 25-mile (40-km) radius of the Designated Site to use the Program(s).

J.    “Lease License” means a license with a fixed expiration date, with a License Term commencing on the Effective Date of Program(s) and ending on the date specified in the License Key or, for Program(s) not containing a License Key, for the lesser of one (1) year or the Program(s)' built-in expiration date, and which may renew pursuant to Section 3 below.

K.     "License Key" means a software licensing management and security tool or other device that Licensor uses to allow Licensee access to the Program(s) and which may have an expiration date.

L.     "License Term" means the period during which Licensee is authorized to use Program(s) in accordance with the applicable license grant.

M.     "License Type" means either a LAN License or WAN License.  Except as otherwise indicated by Licensor or Channel Partner excluding Named User Licenses, the License Type will be deemed to be a LAN License.  Except as otherwise indicated by Licensor or Channel Partner, the License Type for a Named User License will be deemed to be a global WAN License.

N.     "Licensee" means the person or entity entering into this Agreement through its authorized representative by clicking the "I AGREE" button and who is authorized by Licensor to use the Program(s).

O.     “Licensee Data” means information relating to simulation results, inputs, outputs or other information that may be created or inputted by the Licensee and that is available to users of the Program(s).

P.      "Licensor" means ANSYS, Inc.

Q.    “Manual” means Licensor’s most current user manual(s).

R.    “Named User” means an employee or Contract User of the Licensee or its Affiliate, who has been authorized by Licensee to be a user of the Program and who is identifiable as a unique user by his or her e-mail address.

S.   “Named User License” means a license that authorizes a single Named User to use a single Program.

T.    “Paid-Up License” means a license that has a License Term commencing on the Effective Date of Program(s) and continuing in perpetuity unless earlier terminated in accordance with the terms of this Agreement.  Only Program(s) containing a License Key with no expiration date will have a "Paid-Up License" License Term.

U.     "Program(s)" means the software programs being installed pursuant to this Agreement and as identified in the License Key, if applicable, including any accompanying documentation and any Technical Enhancements to such software programs.  Certain Program(s) may require the use of a relational database management system and/or a cross-platform document-oriented database program (collectively referred to as “Database Program(s)”).  Database Program(s) are not included with the Program(s).

V.    “Program Data” means information relating to materials (i.e. matter from which a thing is composed or can be made) that belongs to Licensor, its Affiliates or suppliers that Licensor makes available to users of the Program(s).

W. "TECS" or "Technical Enhancements and Customer Support" means the services described in Section 9(a) below, which will be provided to Licensee at Licensor's sole option and upon payment of any applicable fees.

X. “WAN License” means a license of the Program(s) that permits Licensee’s and its Affiliates’ employees and Contract Users located greater than 25-miles (40-km) from the Designated Site as specified in the Quotation to use the Program(s).

2. GRANT

(a)    Subject to Licensee's continued compliance with the terms and conditions of this Agreement, upon Licensee's clicking the "I AGREE" button, Licensor grants to Licensee a nonassignable, nonexclusive, nontransferable right and license, without the right to grant sublicenses, to use the Program(s), for the License Term, and within the scope of the License Type.  

(b)    For all licenses that are not Named User Licenses, Licensee shall have the right to use the number of simultaneous tasks or active processes of the Program(s) indicated in the License Form or Quotation.  Any Program(s) identified by Ansys in its product documentation or otherwise on its website as containing user-host-displayed counted ("UHD Counted) components additionally will enable the following solely with respect to such UHD Counted components: each such component may be used by no more than one (1) simultaneous user on a single computer utilizing a single display for as many instances of such component as the simultaneous user is able to use.  Any component associated with such Program(s) that are not UHD Counted shall be limited to the number of simultaneous tasks or active process identified in the License Form or Quotation.

(c)    For Named User Licenses, Licensee may only allow Named Users to use the Program(s).  Designation of Named Users will be determined by Licensee.  Each Named User will have a username and password to access his or her Named User License(s).  For each Named User License, a Named User will be authorized to install a Program on only one computer or workstations for which the Named User is the primary user.  A Named User may not share his or her Named User License(s) with any other person, including other Named Users.  Named Users may reasonably be changed by Licensee during the License Term for a Subscription License provided that such change does not result in Licensee exceeding the number of Named User Licenses it has procured.  If Licensee has procured a Paid-Up License but is not current on TECS for the Named User License, Licensor may permit Licensee to change Named Users provided that such change will not result in Licensee exceeding the number of Named User Licenses it has procured.  

(d)    Licensee will use the Program(s) only for Licensee’s and its Affiliates’ own internal data processing purposes and will not make all or any part of any Program(s) available to any third party other than to its Affiliates and Contract Users, solely for the purpose of supporting Licensee’s and its Affiliates’ internal data processing.  Internal data processing purposes includes using the Program(s) for providing consulting services to third parties but does not include providing data processing services, serving as an application service provider, or providing batch processing services.  

(e)    Licensor is not conveying to Licensee any title, ownership, copyright or any other intellectual property rights in or related to Program(s), and Licensor reserves all rights in and to the Program(s) which are not expressly granted in writing by Licensor to Licensee.  

(f)    Licensee will not permit the use of the Program(s) by persons other than its and its Affiliates’ employees and Contract Users.  Licensee is responsible for use of the Program(s) by its Affiliates and Contract Users and for ensuring that the Affiliates and Contract Users (i) use the Program(s) only to perform internal data processing services for Licensee and its Affiliates and (ii) agree to and comply with the terms of this Agreement.  

(g)    Licensee is responsible for installation of the Program(s).  Licensee may make copies of the Program(s) only as are necessary for Licensee’s back-up or archival purposes.  In no event will Licensee remove or modify any copyright notices or other proprietary markings contained within the Program(s) and will ensure that such notices are reproduced within all copies of the Program(s).

(h)    Licensee's license for the use of the Program(s) is further limited as follows:

(i)    Evaluation License: If, in Licensor's sole discretion given the totality of the circumstances surrounding Licensor's provision of the Program(s), Licensee has obtained the Program(s) for evaluation purposes ("Evaluation License"), then Licensee will only use the Program(s) for the purpose of internal demonstration and evaluation, and not for production or commercial purposes, in order to determine whether Licensee desires to purchase a license for the Program(s).

(ii)   Academic License: If, in Licensor's sole discretion given the totality of the circumstances surrounding Licensor's provision of the Program(s), Licensee is licensing the Program(s) for educational purposes ("Academic License"), then Licensee agrees as follows:

* Licensee will not use or permit the use of the Academic Licenses for competitive analysis (such as benchmarking) or for any commercial purposes, including but not limited to consulting.

* The analysis work performed with the Academic Licenses must be non-proprietary work.

* Licensee and its employees and Contract Users using the Academic Licenses must be or be affiliated with an academic facility. In addition to its employees and Contract Users, Licensee may permit individuals who are students at such academic facility to access and use the Academic Licenses, in which case such students shall be considered Contract Users.

* Notwithstanding any terms of this Agreement to the contrary, Academic Licenses with a License Type of LAN may be accessed and used by Licensee at the Designated Site or any other location within a fifty (50) mile/eighty (80) kilometer radius of the Designated Site. Academic Licenses with Ansys Academic Multiphysics Campus Solutions and/or Academic Extended LAN in place (as may be identified in the License Form or Quotation) may be accessed and used by Licensee at the Designated Site or any other location within the same country as the Designated Site; provided, however that (i) such access and use is and shall remain subject to Export Laws, (ii) Licensee is expressly prohibited from accessing or using the Academic Licenses at or within any U.S. embargoed country or area; and (iii) access and use of the Academic Licenses shall be limited to Licensee’s employees and Contract Users (including students) who are based and/or registered to attend classes at the Designated Site. Such limitations apply to any access and/or use of the Academic Licenses including, but not limited to, access via a VPN connection, cloud access or through license borrowing.

* TECS for Academic Licenses will be provided at the sole discretion of Licensor and/or its Affiliates and Channel Partners.  In the event TECS is provided, all Customer Support requests must be initiated via the Ansys Student Community.

* Academic Licenses which contain the term “Associate” in the Program name may only be used for industry related research, degree and/or non-degree related research, student instruction, student projects, and student demonstrations.

* Academic Licenses which contain the term “Research” in the Program name may only be used for degree and/or non-degree related research, student instruction, student projects, and student demonstrations.

* Academic Licenses which contain the term “Teaching” or “EduPack” in the Program name, as well as the Ansys student product downloads available at www.ansys.com/students, may only be used for student instruction, student projects, and student demonstrations.

* Academic Licenses which contain the term “Academic” or “Tools” but do not contain the terms “Associate,” “Research,” or “Teaching in the Program name assume the terms of use of the Academic License(s) that they are used with. When used as a standalone program, or if the Academic License is not associated with any other Academic Licenses, the Academic License may only be used for degree and/or non-degree related research, student instruction, student projects, and student demonstrations.

* Academic Licenses which contain the term “Campus Solution” in the Program name contain combinations of Academic Research and Academic Teaching products and, as such, each of these component products must be used in accordance with the “Research” and “Teaching” terms of use described above.

* Where Licensee is using the Program(s) for research projects, Licensee will, if requested by Licensor, submit a Case Study prior to the end of the License Term.  The Case Study will be in English, contain a title and an abstract, and include: (1) the purpose of the study; (2) the approach used to conduct the study; (3) the results obtained; (4) the conclusion as to the results obtained versus the objective of the study; (5) how the Program(s) contributed to the study; (6) three color graphics of the model and meshes; and (7) the Program(s) input files or session log file.

* Licensor separately makes available packages of open source software (hereafter, “Ansys Developer Tools”) that allow users of the Ansys Developer Tools to develop applications that work in concert with Licensor’s software products (hereafter, “Developer Apps”). Notwithstanding any use restrictions associated with an Academic License, which shall continue to otherwise apply, Licensor agrees that Licensee may use Academic Licenses for the additional purpose of testing any Developer Apps being developed by Licensee. For the avoidance of doubt, such testing purposes shall not include nor permit Licensee to (i) reverse engineer the Program(s), (ii) use the Program(s) to compare the performance, features or other components of any Program(s) to other software programs or otherwise engage in benchmarking activities, or (iii) use the Program(s) in connection with any evidence of use collection or litigation purposes.

(iii)   Beta License: If, in Licensor's sole discretion given the totality of the circumstances surrounding Licensor's provision of the Program(s), Licensee has obtained a Beta Version of the Program(s) (“Beta License”), then Licensee will only use the Beta License for the purpose of internal evaluation and exploration, and not for production or commercial purposes, in order to provide feedback to Licensor regarding the Program(s) and its operation.  The License Term for such Beta License is a maximum of three (3) months. In consideration of Beta Licenses granted herein, Licensee agrees as follows:

* Licensee shall report to Licensor any malfunctions, bugs, errors of functional deficiencies in the Program(s) ("Program Deficiency(ies)") detected while evaluating the Program(s), (e.g. if the Program(s) is not performing in accordance with Licensor’s specifications); and

* Licensee may provide suggestions, observations, feedback, commentary, recommended use cases or other statements (collectively, the "Feedback") to Licensor concerning the Program(s) or other information provided by Licensor.  Licensee agrees that any Feedback shall be given on an entirely voluntary basis and will not, absent a separate agreement, create any confidentiality obligation for Licensor.  In no event shall Feedback be considered Licensee’s Confidential Information. If Licensee encounters any Program Deficiencies, it shall report such instances to Licensor; and

* Licensor shall be free to disclose and use the Licensee’s Feedback and the contents of Licensee’s reports of Program Deficiencies as it sees fit, without any obligation of any kind to the Licensee.

(iv)    Warranties for Evaluation and Educational Licenses:  For Evaluation and Educational Licenses, the Program(s) IS PROVIDED TO LICENSEE "AS IS" WITHOUT WARRANTY OF ANY KIND.  LICENSOR AND THE CHANNEL PARTNER AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES AND SUPPLIERS DISCLAIM ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE PROGRAM(S) OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO ANY AND ALL WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (whether or not Licensor or the Channel Partner and their respective Affiliates and suppliers know, has reason to know, has been advised, or is otherwise in fact aware of any such purpose), whether alleged to arise by law, by reason of custom or usage in the trade, or by course of dealing.  Section 6 of this Agreement does not apply to Evaluation and Educational Licenses.

(v)  Warranties for Beta Licenses:   Licensee understands and agrees that it is accepting the Beta Licenses on an experimental basis for exploration purposes only.  Licensee further understands and agrees that it is anticipated that there are likely Program Deficiency(ies) in the Program(s) and that the occurrence of such Program Deficiencies is inherent in the technology exploration relationship established hereunder.  Given the nature of this Agreement and the Licensee's intended use as an evaluator of the Program(s), Licensee agrees that the Program(s) should not be relied upon at all in connection with the operation of any aspect of its business. LICENSEE ACCEPTS THE PROGRAM(S) "AS IS" WITHOUT WARRANTY OF ANY KIND.  LICENSOR AND THE CHANNEL PARTNER AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES AND SUPPLIERS DISCLAIM ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE PROGRAM(S) OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO ANY AND ALL WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (whether or not Licensor or the Channel Partner and their respective Affiliates and suppliers know, has reason to know, has been advised, or is otherwise in fact aware of any such purpose), whether alleged to arise by law, by reason of custom or usage in the trade, or by course of dealing.  LICENSEE ACKNOWLEDGES THAT THE PROGRAM(S) LICENSED HEREUNDER IS IN AN EXPERIMENTAL STATE ONLY AND THAT THE PROGRAM(S) WILL PROBABLY UNDERGO SIGNIFICANT CHANGES PRIOR TO THE FINAL RELEASE VERSION. Licensor does not guarantee that the technology embodied in the Program(s) or the Feedback provided by Licensee will be offered at any time as a commercial software product. Section 6 of this Agreement does not apply to Beta Licenses.

(vi)  TECS for Beta Licenses:  During the term of this Agreement, Licensor may provide to Licensee such updates, fixes and other materials that are deemed appropriate by Licensor to assist Licensee in performing the evaluation specified herein. Section 9 of this Agreement does not apply to Beta Licenses.
   
(i)    Licensor will provide Licensee access to the Program(s) via License Key(s) or via some other method provided by the Licensor.  LICENSE KEYS MAY LIMIT THE PROGRAM(S)’ USE AND REQUIRE LICENSEE TO OBTAIN NEW LICENSE KEYS FROM TIME TO TIME.  For periods in which Licensee is entitled to receive TECS for a Program, Licensee may request, at no additional charge, three (3) replacement License Keys per TECS period for such Program(s) due to a change of the Designated Network.  Licensor may charge an additional fee if Licensor agrees to provide replacement License Keys more than three time per TECS period or during periods in which Licensee is not entitled to receive TECS.

(j)    Certain Program(s) may be provided with and/or Licensor may otherwise provide Licensee with software development kits and documentation that may be used to create applications that can be utilized in concert with the Program(s) (“Custom Applications”). Custom Applications may incorporate components of the Program(s). Licensee shall not develop Custom Applications that directly compete with the Program(s) and shall not distribute, license, or otherwise provide the Custom Applications to any third party without Licensor’s consent.

(k) Licensee will not modify the License Key provided with the Program(s) in any way.  Except as expressly permitted by this Section 2(k) or as required by local law, Licensee will not (and will not attempt to nor allow any third party to or attempt to) adapt, alter, amend, modify, reverse engineer, decompile, disassemble or decode the whole or any part of the Program(s) or translate the whole or any part of the Program(s) into another language.  To the extent that local law expressly grants or requires Licensor to grant Licensee the right to decompile the Program(s) to obtain the information necessary to render the Program(s) interoperable with other computer programs used or to be created by Licensee, Licensor will make such information available to Licensee and Licensee will not decompile (or attempt to do so) the Program(s) without first requesting such information from Licensor.  Licensor will have the right to impose reasonable conditions (such as the imposition of a reasonable fee) for making the information available.  To ensure that Licensee receives the appropriate information, Licensee must first give Licensor sufficient details of Licensee’s objectives and other software concerned.  All requests for the appropriate information will be given by notice to be delivered in accordance with the terms of this Agreement.  Licensee may not distribute the Program(s) (the whole or any part) to any third party (excluding Affiliates and Contract Users to the extent expressly permitted therein) or link or compile the Program(s) to or with any third-party software without Licensor's prior written permission, which consent Licensor may grant or withhold in its sole discretion.

(l)    Licensee acknowledges and agrees that the Program(s) are subject to U.S. laws and other applicable laws governing the export and/or re-export of Program(s) including, but not limited to, the Export Administration Regulations, regulations promulgating financial transaction restrictions administered by the Office of Foreign Asset Controls of the U.S. Department of the Treasury, the International Emergency Economic Powers Act, the United States Export Administration Act, the United States Trading with the Enemy Act, and all regulations, orders and licenses issued thereunder (collectively the "Export Laws").  Licensee warrants that it and its Affiliates and Contract Users are and will remain in compliance with all such Export Laws with respect to the Program(s) and acknowledges that Export Laws may change over time.  Licensee additionally warrants that it has not been, and is not currently, debarred, suspended, prohibited or impaired from exporting, re-exporting, receiving, purchasing, procuring, or otherwise obtaining any product, commodity, or technical data regulated by any agency of the government of the United States.  Licensee gives assurance that unless notice is given to Licensor, and prior authorization is obtained as required by the Export Laws, Licensee will not knowingly re-export, directly or indirectly, any Programs or any technical data transferred by Licensor to Licensee to any destination or person or entity in violation of the Export Laws or this Agreement.

(m)    If applicable, for Licensees that are U.S. Government entities, Licensor software is commercial computer software (as defined in Federal Acquisition Regulation (“FAR”) 2.101 for civilian agency purchases and Department of Defense (“DOD”) FAR Supplement (“DFARS”) 252.227-7014(a)(1) for defense agency purchases). If the software is licensed by or on behalf of a civilian agency, Licensor provides the software, its documentation, and any other technical data subject to this Agreement consistent with FAR 12.212 (Computer Software) and FAR 12.211 (Technical Data). If software is licensed by or on behalf of any DOD agency, Licensor provides the software, its documentation, and any other technical data subject to this Agreement consistent with DFARS 227.7202-3. If this is a DOD subcontract, the DOD agency Customer may acquire additional rights in technical data under DFARS 252.227-7015(b). This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.

(n)    With respect to the SCADE family of products Licensor may provide source code for certain components of such Program(s), which shall be treated as Program Confidential Information under Section 5.  In addition to the terms set forth in this Agreement, such source code shall also be subject to the additional provisions respecting such source code specifically as set forth in Paragraph 2 of the terms set forth at https://www.ansys.com/footer/terms-and-conditions/scade.

3. TERM AND TERMINATION

(a)    Lease Licenses are non-cancelable by Licensee, will commence on the Effective Date of Program(s), and will have a License Term that ends as of the expiration date specified in the License Key or, in the event the Program does not have a License Key, the License Term shall end at the lesser of one (1) year or the Program(s)' built-in expiration date .  Except as set forth below, at the end of the then-current License Term, the Lease License will automatically renew at the renewal fees agreed between Licensee and either Licensor or Channel Partner, as applicable, for a renewal License Term equal to the duration of (as applicable) the immediately preceding License Term (provided that the term may be extended or shortened by mutual agreement in any given renewal term for that License Term in order to make the License Term coterminous with the term of other Lease Licenses or the TECS for Paid-Up Licenses licensed by Licensee).  The Lease License will not renew if Licensee, Channel Partner, or Licensor gives prior notice of its intent to not renew.  Licensee shall be deemed to have provided notice not to renew if Licensee does not issue a purchase order to Licensor or the Channel Partner for the Lease Licenses prior to the expiration of the then-current License Term.  Licensor and Channel Partner shall be deemed to have provided notice not to renew if Licensor or Channel Partner does not provide a renewal quotation for the Lease Licenses prior to the expiration of the then-current License Term.

(b)    Beta Licenses will commence on the Effective Date of the Program(s), and, at the end of the License Term, will automatically expire.

(c)    The license for a Paid-up License will commence on the Effective Date of Program(s) and will be perpetual unless terminated as provided in Sections 3(d) below.

(d)    Licensor may terminate Lease License(s) if Licensee fails to pay the then-current license fees to the Channel Partner or Licensor, as applicable, within thirty (30) days of the due date for such payment.  In the event a Lease License is terminated prior to the end of the Term, no refund will be due to Licensee for any portion of the prepaid Lease License fee.   Licensor may immediately terminate this Agreement and any Program(s) license upon any of the following: (i) Licensee materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days of notice of such breach from Licensor or Channel Partner, provided that Licensor may terminate this Agreement and any Program(s) licenses for any material breach by Licensee that is not capable of being cured; (ii) Licensee ceases to do business for any reason; (iii) Licensee has a receiver or administrator appointed over all or part of its assets; (iv) Licensee becomes subject to any bankruptcy, insolvency, reorganization, liquidation or other similar proceedings, which proceedings are not dismissed within fifteen (15) days thereafter; (v) the transfer of a majority of Licensee’s assets or outstanding voting securities (including, without limitation, by way of merger of Licensee with or into any other person or entity), or the sale of Licensee’s business, or any other transaction or series of related transactions in which the security holders of Licensee immediately prior to such transaction(s) do not hold at least a majority of the outstanding voting securities of Licensee immediately after the transaction(s); or (vi) any attempted assignment of this Agreement by Licensee without prior written approval by Licensor.  Licensee may terminate this Agreement and any Lease License or TECS upon any of the following: (i) Licensor materially breaches any provision of this Agreement or a License Form and fails to cure such breach within thirty (30) days of notice of such breach from Licensee; or (ii) Licensor ceases to do business for any reason, in which event Licensor will refund to Licensee a pro rata portion of the amounts paid for such Lease Licenses or TECS.  This Agreement may also be terminated by Licensor if pursuant to Section 6(e)(iii) or 7(a) all of Licensee’s licenses of the Program(s) are terminated.

(e)    If the license for Program(s) granted hereunder is terminated for any reason, Licensee will immediately uninstall the Program(s) from the computer(s) on which it is installed and will certify to Licensor in writing that the Program(s) is no longer installed and that all copies thereof have either been destroyed or returned to Licensor or the Channel Partner.  Licensee will immediately return to Licensor or the Channel Partner any information or material provided to Licensee in connection with the Program(s), unless otherwise specified by Licensor or the Channel Partner.

4. PAYMENT

For sales of licenses of the Program(s) and/or TECS in which Licensor or its Affiliates will receive payment, Licensee or its Affiliate will pay the applicable fees within thirty (30) days from the date of the invoice from Licensor or its Affiliate.  For any late payment, Licensor or its Affiliate (as applicable) may charge Licensee interest in an amount equal to the lesser of 1.5% per month of the unpaid balance or the greatest amount legally permitted.  For sales of Lease Licenses, Paid-Up Licenses and/or TECS in which Channel Partners that are not Affiliates of Licensor will receive payment, Licensee or its Affiliates will pay the applicable fees within thirty (30) days of receipt of an invoice from such Channel Partner unless otherwise agreed.  License fees and TECS fees quoted to Licensee are exclusive of all value added taxes, sales taxes, use taxes, and the like.  Licensee will pay all taxes associated with the transaction, exclusive of any tax based on the income of Licensor or the Channel Partner.  Licensee must provide a valid tax exemption certificate if claiming a tax exemption.

5.     CONFIDENTIAL INFORMATION

(a)    Licensee acknowledges that the Program(s) embodies confidential and proprietary information, including trade secrets, owned or licensed by Licensor or its Affiliates (the “Program Confidential Information”).  For Beta Licenses, Program Confidential Information also includes any and all information relative to the Program(s) and the results of Licensee’s evaluation of the Program(s).

(b)     Excluding the Program(s) and the Program Confidential Information, the parties agree that any other information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) under this Agreement that is marked or identified as confidential or given the nature of the information or circumstances surrounding disclosure should reasonably be understood to be confidential (“Other Confidential Information”) and, together with the Program Confidential Information, (“Confidential Information”) will remain the property of the Disclosing Party.  Any information relating to Licensor’s, its Affiliates’, technology suppliers’, or Channel Partner’s or to Licensee’s or its Affiliates’ business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information even if not explicitly marked or identified.  The Receiving Party will protect the Confidential Information from disclosure to others using no less than a reasonable degree of care. The Receiving Party agrees that it will not (i) use the Disclosing Party’s Confidential Information in any way, for its own account or the account of any third party, except for the exercise of its rights and performance of its obligations under this Agreement, or (ii) disclose any such Confidential Information, other than furnishing such Confidential Information to (a) its employees, Affiliates, Channel Partners and consultants who are required to have access to such Confidential Information in connection with the exercise of its rights and performance of its obligations under this Agreement; and (b) professional advisers and, in the case of Licensor, technology suppliers (solely for support purposes); provided that such employees, Affiliates, consultants, Channel Partners, professional advisers and technology suppliers are bound to protect the Confidential Information from unauthorized use and disclosure consistent with these terms.
 
(c)     The obligations of Section 5(b) will not extend to any information that the Receiving Party can demonstrate with competent evidence:

(i)     is or becomes publicly known through no fault of the Receiving Party;

(ii) was possessed by the Receiving Party free of any obligation of confidentiality prior to receipt from the Disclosing Party;

(iii) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information;

(iv) is rightfully obtained by the Receiving Party from third parties authorized to make such disclosure without restriction; or

(v) is identified as no longer confidential by the Disclosing Party.

(d)     The Receiving Party may disclose Confidential Information to the extent required by law, regulation or court order, provided that (i) the Receiving Party makes reasonable efforts to notify Disclosing Party in writing prior to disclosing the Confidential Information and takes reasonable steps to obtain protective treatment of the Confidential Information; and (ii) any information so disclosed shall continue to be treated as Confidential Information between the Receiving Party and Disclosing Party.

(e)     Receiving Party has the burden of proving the exceptions in section 5(c) above.

(f)     For disclosures between the parties within the U.S., the Disclosing Party shall not disclose without the Receiving Party’s prior approval any Confidential Information that is subject to export or re-export restrictions that would limit the Receiving Party’s ability to share such information with individuals working for the Receiving Party in the U.S. who are neither US citizens nor US green holders.

(g)     The obligations of the parties respecting Other Confidential Information will survive for a period of three (3) years from the date of the first disclosure of such Other Confidential Information.

(h)     If the parties have separately entered into a confidentiality agreement regarding the exchange of Other Confidential Information in connection with this Agreement, then the terms of that separate confidentiality agreement will govern the disclosure and use of Other Confidential Information between the parties and not this Section 5.  Any existing confidentiality agreements between the parties will remain in full force and effect and will not be varied by the terms of this Section 5.

6. WARRANTIES; LIMITATION OF REMEDY

(a)    Excluding Evaluation and Educational Licenses, the warranty for which is as set forth in Section 2(h)(iv) and Beta Licenses,  the warranty for which is as set forth in Section 2(h)(v), Licensor warrants to Licensee that the Program(s) will perform in all material respects as specified in the Manual applicable to the Program(s) for the longer of ninety (90) days from the Effective Date of the Program(s), the License Term of the Lease License, or for the period during which Licensee has purchased TECS for the Paid-Up License.  The warranty provided in this Section 6 will only apply to the two (2) most current releases of the Program(s).  This warranty will not apply if Licensor has notified Licensee in writing that Licensor no longer supports the operating system version on which such Program(s) is licensed.

(b)    Licensor, its Affiliates, the Channel Partner and technology suppliers do not warrant the accuracy or the applicability of the results obtained from the use of the Program(s).  No other documents or oral conversations, statements or representations will be offered by Licensee as evidence to explain, expand, alter, add to or invalidate the express warranties set forth above.

(c)    The warranties set forth herein are the sole warranties provided to Licensee and extend only to Licensee itself.  Licensor, its Affiliates, Channel Partners and technology suppliers will not be responsible for any breach of warranty caused by (i) modifications (or attempted modifications) to the Program(s) made by or on behalf of Licensee, or (ii) any combination of the Program(s) with any other software, excluding any operating systems for which the Program(s) are licensed to be used, or (iii) any use of the Program(s) other than on the Designated Network, or (iv) use of other than the most current release of the Program(s).

(d)    THE EXPRESS WARRANTY SET FORTH IN SECTION 6(a) OF THIS AGREEMENT IS IN LIEU OF, AND LICENSOR, ITS AFFILIATES, CHANNEL PARTNERS AND TECHNOLOGY SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE PROGRAM(S) OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (whether or not Licensor, its Affiliates, Channel Partners and/or technology suppliers know, have reason to know, have been advised, or are otherwise in fact aware of any such purpose), whether alleged to arise by law, by reason of custom or usage in the trade, or by course of dealing.  In addition, Licensor, its Affiliates, Channel Partners and technology suppliers expressly disclaim any warranty or representation to any person other than Licensee with respect to the Program(s) or any part thereof.

(e)    If the Program(s) fails to perform in all material respects as warranted in this Agreement, Licensee’s sole remedy will be for Licensor, at Licensor's option, to:

(i)    Provide a correction or work-around to correct the breach; or

(ii)   Modify the Program(s) to conform substantially to the Manual; or

(iii)  If neither (i) nor (ii) are commercially feasible, terminate the license for that Program(s) and/or this Agreement and require Licensee to return the Program(s) to Licensor, in which event Licensor will refund to Licensee a pro-rata portion of the amounts paid for such Program(s).  For a Paid-Up License, such pro-rata calculation will be based on straight-line depreciation over a 36-month period following the applicable delivery date.  

(iv)   Terminate the license for that Program(s) and/or this Agreement and require Licensee to return the Program(s) to Licensor, in which event Licensor will refund to Licensee a pro-rata portion of the amounts paid for such Program(s).  For a Paid-Up License, such pro-rata calculation will be based on straight-line depreciation over a 36-month period following the applicable delivery date.

(f)    LICENSEE'S REMEDIES AS SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE REMEDIES TO WHICH LICENSEE IS ENTITLED.

7. INDEMNIFICATION

(a)    Licensor will defend at its expense any claim, suit or proceeding (each, a “Claim”) brought against Licensee by any third party to the extent such Claim asserts that the Program(s) infringes or misappropriates the third party’s patent, copyright, trade secret or trademark (“Infringement Claim”).  Licensor will pay all costs and damages finally awarded against Licensee by a court of competent jurisdiction or any settlement amounts finally agreed to by Licensor as a result of any such Infringement Claim; provided, however, that Licensee (i) promptly notifies Licensor in writing of such Infringement Claim; (ii) promptly gives Licensor the right to control and direct the investigation, preparation, defense and settlement of such Infringement Claim, with counsel of Licensor’s own choosing (provided that Licensee will have the right to reasonably participate, at its own expense, in the defense of any such Infringement Claim); and (iii) gives assistance and full cooperation for the defense of same.  Licensor may, at its option, as a way of remedying any Infringement Claim or potential Infringement Claim, (i) replace or modify the Program(s) so as to avoid infringement, (ii) procure the right for Licensee to continue the use of the Program(s), or (iii) if neither (i) nor (ii) are commercially feasible, Licensor may terminate any licenses to the Program(s) and/or this Agreement and require Licensee to return the Program(s) to Licensor, in which event Licensor will refund to Licensee a pro rata portion of the amounts paid for such Program(s).  For a Paid-Up License, such pro rata calculation will be based on straight-line depreciation over a 36-month period following the applicable delivery date.

(b)     This indemnity will not apply to any Infringement Claim based upon or arising from (i) use of the Program(s) in a manner for which it was not designed or not in accordance with the Manual, (ii) use of the Program(s), when use of a subsequent software release that Licensor has made commercially available would have avoided such infringement; (iii) any combination of the Program(s) with any other software, excluding any operating system for which the Program(s) are licensed to be used or (iv) Licensee’s continued use of the Program(s) subsequent to receipt of notice of any claimed infringement. This Section 7 is Licensee’s sole and exclusive remedy and sets forth Licensor’s entire liability and obligations with respect to any Infringement Claim.

(c)     For the purposes of Section 8(a), all damages awarded against Licensee or settlement amounts agreed to by Licensor in connection with Licensor’s indemnification obligations set forth in Section 7(a) will be treated as direct damages.

8. LIMITATION OF LIABILITY AND INDEMNITY

(a)    SUBJECT TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR, ITS AFFILIATES, CHANNEL PARTNERS AND SUPPLIERS WILL NOT BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES OR LOSSES.  Except for Licensor’s obligations set forth in Section 7(a) and for Licensor’s material breach of Section 5, in no event will Licensor’s, its Affiliates’, Channel Partners’ and technology suppliers’ aggregate liability to Licensee exceed the greater of (i) $5,000 U.S. Dollars or (ii)(1) in the case of a Paid-Up License, the license fee initially paid for such Paid-Up License  (not including any TECS fees or other fees) or, (2) in the case of a Lease License, the license fee paid for such Lease License during the preceding twelve (12) months.  Licensee acknowledges that given all the circumstances, the limits on Licensor’s liability are reasonable because of, among other things, the likelihood that without those limitations the amount of damages awardable to Licensee for a breach by Licensor or Channel Partner of this Agreement may be disproportionately greater than the license fees paid or payable for the Program(s).  For the avoidance of doubt, Licensee is entirely responsible for keeping full back up copies of its software, data and database configurations in accordance with best industry practice.  The foregoing limitations of liability apply regardless of whether the parties have been advised of the likelihood of such damages or losses and regardless of the theory of liability.

(b)    Each of Licensor’s Affiliates, Channel Partners and technology suppliers may rely upon and enforce the exclusions and restrictions of liability in this Section 8 in that entity’s own name and for that entity’s own benefit against Licensee and its Affiliates solely as it relates to liability arising against such parties under this Agreement.

(c)    Notwithstanding anything to the contrary in this Agreement, Licensor does not limit its liability (if any) to Licensee for any matter which it would be illegal for Licensor to exclude or to attempt to exclude its liability, but nothing in this clause confers any right or remedy upon the other party to which it would not otherwise be entitled.

(d)   The Program(s) is a mathematical analysis tool intended to assist Licensee in Licensee's development and design processes and requires considerable skill and judgment for its correct use and for the interpretation of the computed results. The Program(s) is not intended to be nor is it a substitute for rigorous and comprehensive prototype or other testing by Licensee of products prior to production and sale.

9. TECHNICAL ENHANCEMENTS AND CUSTOMER SUPPORT (TECS)

(a)    Excluding Beta Licenses, TECS will consist of (i) reasonable telephone, e-mail or web-based support respecting the use of the Program(s) ("Customer Support"); and (ii) Program releases or corrections provided by Licensor without additional charge to TECS customers generally ("Technical Enhancements").  Customer Support will be provided by Licensor, its Affiliate or Channel Partner (as applicable).  Technical Enhancements will be provided by Licensor at such times as determined solely by Licensor.

(b)    For a Lease License, TECS is included as part of the Lease License fee.

(c)    For a Paid-up License (excluding Named User Licenses), installation support will be provided without charge for thirty (30) days from the Effective Date of Program.  For Paid-up Licenses currently on TECS, Licensor or Channel Partner will provide TECS.  Except as set forth below, at the end of the then-current TECS period, TECS will automatically renew at the prior year’s TECS rate plus an increase consistent with the increase in the price of the associated Program(s) for a renewal term of a like duration.  TECS will not renew if Licensee, Channel Partner, or Licensor gives prior notice of its intent to not renew.  Licensee shall be deemed to have provided notice not to renew if Licensee does not issue a purchase order to Licensor or the Channel Partner for TECS prior to the expiration of the then-current TECS period.  Licensor and Channel Partner shall be deemed to have provided notice not to renew if Licensor or Channel Partner does not provide a renewal Quotation for TECS prior to the expiration of the then-current TECS period.  TECS that does not automatically renew but that is purchased in the same configuration within three (3) within three (3) months of the expiration date of the last TECS period shall not require a new License Form to be signed for such TECS as the terms of this Agreement will be deemed to continue to apply from the new start date of such TECS.  Except as specifically set forth in this Agreement, if TECS is terminated prior to the end of the term, Licensee shall not be entitled to any refund for any portion of the prepaid TECS fee. (d)    For a Paid-Up License, telephone or email assistance for Program installation will be provided without charge for thirty (30) days from the Effective Date of Program(s).  In consideration for payment of the then-current TECS fees, TECS for a Paid-Up License will be provided by the Channel Partner or Licensor.  TECS will automatically renew at the then-current renewal fees for a renewal term equal to the duration of the immediately preceding term unless Licensee, Channel Partner, or Licensor gives prior written notice of its intent to terminate TECS no later than 30 days prior to the end of the TECS term.  TECS will terminate automatically upon Licensee's failure to: (i) deliver a valid purchase order or (2) pay the then-current TECS renewal fees to Channel Partner or Licensor. In the event TECS is terminated prior to the end of the term, no refund will be due to Licensee for any portion of the prepaid TECS fee.

(d)     For any WAN License, Licensor or its Channel Partners shall provide TECS to the Designated Site and any other Licensee site identified in the quotation as being entitled to receive TECS.  Provided that there are no material changes to the WAN License (including any change in the Program(s) that are accessible or to the number of licenses of the Program(s) that are accessible), the TECS fee for any extension agreed to between the parties shall not increase over the then-immediate year’s TECS Fee for the WAN Licenses in the aggregate by more than five percent (5%) per year.

(e)     TECS does not include any database set-up or configuration.  For Named User Licenses, TECS also does not include any Program installation support.

(f)     Licensor and the Channel Partner have no obligation to provide TECS: (i) for other than the two most recent commercially available releases of each Program(s); (ii) for any Program(s) that have been altered, damaged or modified by Licensee or on Licensee’s behalf; (iii) for any applications, models or other customizations provided by Licensor or Channel Partner as part of a consulting services engagement; or (iv) for any problems caused by Licensee’s negligence or use of the Program(s) other than in accordance with the Manual and this Agreement.

(g)     If TECS on a Program license is discontinued by Licensee for more than three (3) months, Licensor shall have no obligation to permit reinstatement of TECS on such Program license.  Except as otherwise agreed between the parties, Licensor’s election to permit reinstatement shall be subject to Licensor’s then-current TECS reinstatement policy.

(h)     For Named User Licenses, Customer Support will be provided to Licensee and its Affiliates at their locations specified in the Quotation.

(i)    Licensee acknowledges that Licensor may transmit customer data and information (“Customer Information”) to Ansys sanctioned data center(s) for the purpose of allowing Licensor to execute simulation workloads and fulfill customer requests efficiently and effectively while maintaining a secure environment that protects Customer Information. Customer Information may include Confidential Information. Licensee agrees that the transmission of Confidential Information to a Licensor sanctioned data center shall not be considered a disclosure of Confidential Information to a third party either under this Agreement or any applicable nondisclosure agreement between the parties. Licensor shall maintain the Customer Information and any Confidential Information consistent with the terms of this Agreement and consistent with Ansys hybrid compute environment security statements as set forth at https://www.ansys.com.mcas.ms/legal/terms-and-conditions/ansys-hybrid-compute-environment-security.

10. MISCELLANEOUS

(a)    All notices required in this Agreement will be given in writing to all parties and delivered by registered mail or another established delivery service (such as UPS or FedEx), or mutually agreed equivalent.  Notices will be effective when received as indicated on the registered mail or other delivery receipt.  All notices will be given by Licensee to Licensor at the following address:  ANSYS, Inc., Legal Department, 2600 ANSYS Drive, Canonsburg, PA 15317. All notices will be given by Licensor to Licensee at any location where Licensee conducts business, unless Licensee has previously notified Licensor of a specific address for notices.

(b)    Licensee will not assign this Agreement to any third party by operation of law, or in bankruptcy, or otherwise without prior written consent of Licensor.  This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors, permitted assigns and permitted transferees.

(c)    With fifteen (15) days prior notice, Licensor may have, once every twelve (12) months, a third-party independent auditing firm examine Licensee’s records and systems to ensure Licensee’s installation and use of the Program(s) conforms to the terms of this Agreement.  Licensee shall cooperate with the third-party auditing firm, shall respond immediately to all audit-related queries, and shall provide access to its personnel, all relevant records, files and information onsite. If the audit report indicates any license non-compliance by Licensee, Licensee agrees to pay for the costs of the audit in addition to working to remedy the license non-compliance.

(d)    The provisions of Sections 2(k), 2(l), 2(m), 3(e), 4, 5, 6(d), 6(e), 6(f), 7, 8, 10, 11 and 13 will survive termination of this Agreement or any individual Program(s) license.

(e) If Licensee is the U.S. Government, this Agreement shall be subject to the laws of the United States, and in the event of any dispute arising from or in relation to this Agreement, the parties consent to the exclusive jurisdiction of, and venue in, a court of competent jurisdiction under the laws of the United States.  If Licensee is a state or local government entity within the United States, this Agreement shall be subject to the laws of the state in which Licensee is located, and in the event of a dispute arising from or in relation to this Agreement, the parties consent to the exclusive jurisdiction of, and venue in, a court of competent jurisdiction within such state.  Otherwise, to the extent permitted by law, the rights and obligations of the parties hereto will be governed by the substantive law of the Commonwealth of Pennsylvania, excluding the United Nations Convention on the International Sale of Goods and choice of law provisions.  If Pennsylvania law is not held to apply to this Agreement for any reason, then in jurisdictions where warranties, guaranties, representations or and/or conditions of any type may not be disclaimed, any such warranty, guaranty, representation and/or warranty is hereby limited to the thirty (30) days or the shortest period allowed by law, whichever is greater.

(f)    The parties hereto consent to the venue and jurisdiction of the federal and state courts maintaining jurisdiction over Washington County, Pennsylvania for purposes of any legal proceedings arising under or relating to this Agreement.

(g)    Because the Program(s) is unique and valuable and breach of this Agreement may result in irreparable injury to Licensor for which monetary damages alone may not be an adequate remedy, Licensor will be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any breach or anticipated breach of this Agreement without the necessity of posting a bond.  Any such relief will be in addition to all other legal and equitable remedies.

(h)    If any provision of this Agreement will be invalid, such provision will be ineffective only to the extent of such invalidity without invalidating the remainder of this Agreement.

(i)    Any failure of any party to enforce any of the provisions of this Agreement will not be construed as a waiver of such right of the party thereafter to enforce each and every such provision.

(j)    The parties have required that this Agreement be drawn up in English.

(k)    EXCEPT WITH RESPECT TO BETA LICENSES, IN THE EVENT LICENSEE HAS PREVIOUSLY AGREED IN WRITING TO A SOFTWARE LICENSE AGREEMENT WITH LICENSOR THAT SPECIFICALLY GOVERNS USE OF THE PROGRAM(S), SUCH SOFTWARE LICENSE AGREEMENT WILL SUPERSEDE AND REPLACE THIS AGREEMENT, AND THIS AGREEMENT WILL BE VOID.  If Licensee has not previously agreed in writing to a software license agreement with Licensor that specifically governs use of the Program(s), then: this Agreement constitutes the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. This Agreement supersedes the terms of any click-wrap, shrink-wrap, or break-the-seal license agreement included in any Program(s) package. Except as specifically provided herein, this Agreement may be modified only by a written amendment executed by duly authorized officers or representatives of the parties. The terms and conditions contained in this Agreement will take precedence over any conflicting provisions contained in any quotation, appendix, exhibit, or document incorporating this Agreement by reference. No purchase order, procurement agreement or any other standardized business forms issued by Licensee, and even if such purchase order, procurement agreement or other standardized business forms provides that it takes precedence over any other agreement between the parties, shall be effective to contradict, modify, or delete from the terms of this Agreement in any manner whatsoever. Any acknowledgment, written or oral, of any such purchase order, procurement agreement or standardized business form is not recognized as a subsequent writing and will not act as acceptance of such terms.

11. LICENSE COMPLIANCE SOFTWARE

(a)  In accordance with Section 11(b) or 11(c) below, Licensor may embed the Program(s) with compliance technology (“License Compliance Technology”) provided by third-parties (“Technology Providers”) that reports information to Licensor, as the controller of this information under applicable data protection laws. Information collected by the License Compliance Technology concerns unique user and network identification information related to the use of the Program(s) (“Identification Information”).  Identification Information collected by the License Compliance Technology includes geographic location data, usernames, e-mail addresses, IP addresses, hostname, MAC addresses, and the domains from which the use of the Program(s) originated. 
Licensor’s processing of such Identification Information for license compliance (collectively “Processing Activities”) includes:

* Licensor’s collection, use, and storage of the Identification Information to administer and enforce Licensor’s license compliance program;

* Licensor’s transfer of the Identification Information to Licensor Affiliates;

* Licensor’s Affiliates’ collection, use, and storage of the Identification Information to administer and enforce Licensor’s license compliance program;

* Licensor’s transfer of the Identification Information to Channel Partners;

* Channel Partners’ collection, use, and storage of the Identification Information to administer and enforce Licensor’s license compliance program;

* Licensor’s transfer of the Identification Information to global service providers who aid Licensor in the enforcement of its global license compliance program (“Service Providers”);

* Service Providers’ collection, use, and storage of the Identification Information to administer and enforce Licensor’s license compliance program;

* Licensor’s transfer of the Identification Information to Technology Providers;

* The Technology Providers’ collection, use, and storage of the Identification Information to administer and enforce Licensor’s license compliance program; and

* The transfer of such Identification Information to countries from which the Identification Information or use of the Program(s) originated.

Licensor will retain such Identification Information for a period of time necessary to ensure license compliance program with the terms of this Agreement and/or verify that both the Programs and Licensee’s use of the Programs are appropriately licensed and thereafter as long as it is necessary for compliance.

Licensee acknowledges and agrees that any Identification Information collected under this Section 11 may be processed and stored outside of its country of origin, including in the United States.

For a current list of Technology Providers, Subsidiaries, and Service Providers, information on your data protection rights (including, where applicable, your right to object against certain processing based upon legitimate interests), and more information on how Licensor uses the Identification Information please visit www.ansys.com/privacy.

Licensee hereby represents and warrants that it shall provide sufficient notice to all users of the Program(s) (including Named Users and Contract Users) of Licensor’s processing of the Identification Information, as described in this Agreement.

(b)     For all Licensees, except for those in the Republic of Korea, Licensor processes such Identification Information on the legal basis of (i) performing this Agreement; (ii) performing legal duties under applicable laws and regulations (including without limitation, preventing the unauthorized use of the Program that poses security risks); and (iii) its legitimate interests, to ensure compliance with the terms of this Agreement and verify that both the Program(s) and Licensee’s use of the Program(s) are appropriately licensed. On these legal basis and in pursuit of its legitimate interests, Licensor shall use the Identification Information solely to determine if modifications to certain code files of the Program(s) have been made or if there is suspected or confirmed unauthorized access to or use of the Program(s). To the extent that applicable data protection laws require special treatment of specific types of Identification Information, Licensor shall take measures necessary for compliance with these laws. Licensor shall ensure that any transfers of such Identification Information complies with all applicable data protection laws, including, to the extent applicable, restrictions on cross-border data transfers under the General Data Protection Regulation (Regulation (EU) 2016/679).

(c) For Licensees in the Republic of Korea, Licensor processes such Identification Information to ensure compliance with the terms of this Agreement and verify that both the Program(s) and Licensee’s use of the Program(s) are appropriately licensed. Licensor and the Technology Providers process such Identification Information solely to determine if modifications to certain code files of the Program(s) have been made or if there is suspected or confirmed unauthorized access to or use of the Program(s). Licensee’s acceptance of the terms of this Agreement shall evidence Licensee’s explicit consent to the Processing Activities and the collection, use, and storage of the Identification Information as outlined above. Licensee’s consent to these terms is voluntary. Licensee may withdraw consent at any time by (i) emailing privacy@ansys.com and rejecting these terms, and (ii) ceasing to the use the Program(s). Notwithstanding anything herein to the contrary, Licensee’s continued use of the Program(s) shall evidence its acceptance to the terms of this Agreement.

12.     DATA ANALYTICS

Licensee is aware that as part of Licensor’s Program(s)improvement process Licensor may obtain feedback from the Program(s) regarding the hardware profile and operating system of Licensee’s users, internal errors that are arising with respect to the Program(s) and the regions of functionality of the Program(s) that Licensee is using.

13.     DATA

(a)    With respect to Program(s) containing Program Data, Licensee may not download any Database and may only permit its employees and Contract Users to download any Program Data that Licensee currently needs.  After termination of any license enabling Licensee to access Program Data, with respect to Program Data that Licensee has downloaded or used, Licensee shall not further access any such Program Data for the purpose of taking any additional materials-related decisions or analyses or otherwise analyzing any material properties contained in the Program Data.

(b)    Licensee acknowledges that upon expiration or termination of any license of the Program(s), Licensee may no longer have access through the Program(s) to any Licensee Data.  Licensee acknowledges that it should take measures to ensure that it makes copies of any Licensee Data in a manner that is accessible by Licensee without use of the Program(s) before the license of any such Program terminates or expires.