The EULA below is current as of 2/9/2015, but the "click on" EULA contained in the software and the pdf that accompanies the software shall supercede what is referenced below.
SIMIO END-USER LICENSE AGREEMENT (EULA)
IMPORTANT—READ THIS AGREEMENT CAREFULLY: This End-User License Agreement (“EULA”) is a legal contract between you (either an individual or a single entity) (“You, Your, or LICENSEE”) and Simio LLC. ("SIMIO”) for the software product or products that SIMIO licenses to You, which includes computer software and may include associated media (“Software”). SIMIO may also license to You printed materials, and “online” or electronic documentation ("Documentation"). An amendment or addendum to this EULA may accompany the Software. SIMIO IS WILLING TO LICENSE THE SOFTWARE AND DOCUMENTATION TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT. YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE SOFTWARE, AND PROMPTLY RETURN THE SOFTWARE WITH ALL ACCOMPANYING ITEMS TO YOUR PLACE OF PURCHASE FOR A FULL REFUND. IF YOU DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT.
This Software is licensed to You -- not sold. Your rights to use the Software are only those rights specified in this EULA.
GRANT OF LICENSE
Provided You comply with all the terms and conditions of this EULA, SIMIO and its third party licensors grant You a non-exclusive license to install and use the Software on a single computer, a network server, or on multiple computers owned or leased by the LICENSEE provided the number of installations and users is not greater than the number of valid software activations purchased.
This License does not grant You the right to provide or utilize the Software as an application service provider or the like. Use of Software on a virtual machine is not supported and may result in lost licenses, poor graphics performance, and lost data.
Any sublicense, rental, sale, lease, or commercial hosting of the Software is prohibited. However, You may transfer rights to use the Software on a permanent basis, provided: (1) You transfer this EULA, the Software, and all accompanying written materials and retain no copies; (2) the recipient agrees to the terms of this EULA; (3) the recipient agrees to follow the software activation process; and (4) You first notify SIMIO in writing of the date of transfer and the recipient’s full name and address.
If this Software is an upgrade or update to a previous version of a SIMIO product, You may not transfer the prior version to another user. If an additional activation is provided to support an upgrade or transfer between machines, You agree to permanently delete the replaced activation and ensure that it is no longer used. This EULA supersedes any prior license with respect to Your use of the Software.
This Software is protected under applicable patent and copyright laws. The Documentation is copyrighted. Unauthorized copying, reverse assembly, reverse engineering, decompilation, and creating derivative works based on the Software are prohibited. You may make a copy of the Software provided that any such copy is only for archival purposes to internally back-up the Software, or is created as an essential step in the internal installation of Software within your organization. You may not make any other copies of the Software.
The Software is warranted for ninety days after its initial delivery to You that it will substantially conform with its Documentation supplied by SIMIO at the time of initial delivery of the Software. This warranty shall be void if You attempt to modify the Software in any way. SIMIO makes no representation or warranty, express or implied, that the operation of the Software will be uninterrupted or error free, or that the functions contained in the Software will meet or satisfy Your intended use or requirements; You assume complete responsibility for decisions made or actions taken based on information obtained using the Software.
TO THE MAXIMUM EXTENT PERMITTED BY LAW THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SIMIO DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY UNDER UCITA.
SOME COUNTRIES AND STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM COUNTRY TO COUNTRY OR STATE TO STATE.
LIMITATION OF REMEDIES
SIMIO’s entire liability and Your exclusive remedy for breach of the Limited Warranty shall be:
1. The replacement of the Software not meeting the Limited Warranty specified above which is returned with proof of purchase; or
2. If SIMIO is unable to deliver replacement Software which meets the Limited Warranty specified above, You may terminate this EULA by returning or destroying the Software as provided herein, and SIMIO or its reseller will refund Your purchase price.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SIMIO OR ITS THIRD PARTY LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR LOST SAVINGS, FOR LOSS OF PRIVACY, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF SIMIO OR ITS RESELLER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. SIMIO'S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL CLAIMS AND LIABILITIES, INCLUDING THAT WITH RESPECT TO DIRECT DAMAGES AND OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOT INSURED, WILL NOT EXCEED THE COST OF THE SOFTWARE GIVING RISE TO THE CLAIM OR LIABILITY. ALL OF THESE DISCLAIMERS AND LIMITATIONS OF REMEDIES AND/OR LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION OF THIS EULA OR ANY OTHER AGREEMENT BETWEEN YOU AND SIMIO AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, AND FURTHER WILL EXTEND TO THE BENEFIT OF SIMIO’S VENDORS, APPOINTED DISTRIBUTORS AND OTHER AUTHORIZED RESELLERS AS THIRD-PARTY BENEFICIARIES.
TERM AND TERMINATION
This EULA takes effect upon Your use of the Software and remains effective until terminated for any reason. You may terminate it at any time by destroying all copies of the Software and Documentation in Your possession. It will also automatically terminate if You fail to comply with any term or condition of this EULA. You agree on termination of this EULA to either return to SIMIO or destroy all copies of the Software, Activation, and Documentation in Your possession.
SUPPORT AND SERVICE LEVEL AGREEMENT
SIMIO maintains a toll-free telephone support line for technical assistance twenty-four hours a day, seven days a week (24x7). The support line is available for live communication during normal working hours and is backed up by a voice mail system that will record requests for assistance.
An on-line technical support site is also available 24x7 with two primary components:
1) An on-line searchable knowledgebase that provides instant solutions for many common problems.
2) On-line logging of suggestions and support issues that includes support for user attachments and screen shots that are often useful in resolving problems.
In addition, Simio includes features to support optional automatic reporting of certain issues to streamline the issue reporting and problem resolution process.
SIMIO strives to respond to every request within one business day. SIMIO provides new releases as frequently as every third week to make new features and any required bug fixes available as expeditiously as possible. In addition, for critical issues, interim releases or work-arounds may be made available when appropriate.
If this Software was obtained for academic or research use by a student or educational institution, it may be used for teaching and research purposes only. Commercial use of the Software is prohibited if the software was intended for educational use. Only the instructor/professor registered to the Software is eligible to contact SIMIO for technical support and product updates. You have the right to make copies of the Software (the media excluding activation) solely for academic, teaching and research purposes.
As an accommodation to LICENSEE, SIMIO may provide LICENSEE with a preproduction release of the Software (often labeled a “beta release”). These releases are not suitable for production use. SUCH RELEASES ARE PROVIDED ON AN “AS IS” BASIS. SIMIO DOES NOT WARRANT PRE-PRODUCTION RELEASES.
The Software may contain samples that are provided as an accommodation to You (“Sample Project Files”). These Sample Project files are intended to be used for example only. The Sample Project Files may be contained in the Software, Documentation or downloaded from the SIMIO website. SIMIO and its third party licensors make no representations or warranties regarding Your use of the Sample Project files and related Documentation. All such Sample Project Files are provided "as is". SIMIO disclaims all warranties with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement.
GOVERNMENT RESTRICTED RIGHTS
If You are a branch or agency of the United States Government, the following provision applies. The Software and Documentation are comprised of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995).
You acknowledge that the Software is subject to the export control laws and regulations of the United States and any amendments thereof. You agree that You will not directly or indirectly transfer or use the Software except in compliance with applicable U.S. export laws and regulations.
The Software and Documentation are protected by patent, copyright and other intellectual property laws and treaties. SIMIO or its licensors own the title, copyright, and other intellectual property rights in the Software and Documentation. The Software and Documentation is licensed, not sold. Nothing in this EULA constitutes a waiver of our rights under U.S. or international patent or copyright law or any other law.
This EULA shall be governed by the laws of the State of North Dakota, without regard to any conflict of laws provisions. The United Nations Convention on the International Sale of Goods will not apply. You agree to bring any action in connection with this EULA or the Software exclusively in the state or federal courts of North Dakota, and You further agree to the jurisdiction of the state and federal courts of North Dakota for any action that SIMIO brings against You.
The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party notices and/or additional terms and conditions are identified in the Software and are made a part of and incorporated by reference into this EULA. By accepting this EULA, You agree to review such terms and conditions set forth therein, if any, and your use of the Software will be deemed to be your acceptance thereof.
This EULA, and any amendment or addendum to this EULA that accompanies the Software is the complete and exclusive agreement between SIMIO and You, and supersedes all prior agreements, whether written or oral, relating to the Software provided and the Documentation. This EULA may not be changed or modified except by an instrument in writing signed by a duly authorized representative of SIMIO. If for any reason a court of competent jurisdiction finds any provision of this EULA or portion thereof, to be unenforceable, that provision of the EULA shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this EULA shall continue in full force and effect.
The parties acknowledge that they have required the EULA to be drafted in English. Les parties reconnaissent avoir exigé la rédaction en anglais du Contrat. In the event of a conflict between the English and other language versions, the English version will prevail.
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