Draft — pending legal review.
Company: AquaFarm Software LLC
Software product: AquaFarm
Copyright © AquaFarm Software LLC, 2000 – Present. All rights reserved.
EULA version: 1.0 Effective date: ____________
This license statement and limited warranty constitute a legal agreement (“End-User License Agreement” or “EULA”) between you (“Licensee”; individual or entity) and AquaFarm Software LLC (“Licensor”), for the AquaFarm Software and AquaFarm User Manual. In this EULA, the AquaFarm Software and AquaFarm User Manual are collectively referred to as “Software”, for which AquaFarm Software LLC is the copyright holder.
By clicking the “Agree” button in the Software installation program and/or installing, copying, downloading, accessing, or otherwise using the Software, you acknowledge that you have read and agreed to be bound by the terms and conditions of the EULA. Upon your acceptance of the terms and conditions of the EULA, the Licensor grants you the right to use the Software in the manner provided in this EULA. The Licensor reserves the right to license the same Software to other individuals or entities under a different license agreement.
If you do not accept the terms and conditions of the EULA and the Software has been installed on your computer(s), then delete the Software from your computer(s) and destroy all copies of the Software. If you do not accept the terms and conditions of the EULA and the Software has not been installed, then do not install or use the Software.
LICENSE GRANT: Subject to the terms and conditions of the EULA, the Licensor hereby grants to you a personal, non-exclusive license (“License”) to use the Software, according to the terms set forth in the EULA. The Licensor reserves all rights to the Software not expressly granted to you. The Software is protected by copyright laws, international copyright treaties, and additional intellectual property laws and treaties. The Software is licensed, not sold.
Type and Scope of License. A License is issued as a single license key authorizing a specified maximum number of activations, as determined at the time of License acquisition. Each activation permits installation and use of the Software on one computer. The Software may be installed on a shared computer or network server, in which case that computer or server counts as one activation. Licensee is responsible for ensuring at all times that the number of computers on which the Software is installed does not exceed the number of activations acquired.
Trial License. At time of License acquisition, Licensor may provide at its discretion a time-limited License trial period of specified time duration. During this trial period the Software may be evaluated prior to License purchase. A License trial period is granted under the terms of this EULA for the type and scope of License acquired. Upon expiration of the License trial period, the License terminates automatically unless the Licensee purchases a License.
License Time Period. Except as explicitly set forth in a separate License agreement or purchase order executed by Licensor, all Licenses granted under this EULA are term-based and shall automatically expire at the end of the specified License term, unless renewed by paying the applicable License subscription fee.
Technical Support. Technical support for use of Software is available from the Licensor according to the conditions and limits described when a Software License is acquired. Technical support beyond these conditions and limits is at the discretion of the Licensor and subject to fees.
Software Projects. The AquaFarm Software uses “Projects”. A Project is an individual aquatic, aquarium, or aquaculture facility, including specifications for facility design and management, aquatic processes and aquatic animals, and simulation methods. Individual Projects are identified by a unique name and are saved and retrieved from Software Database files. Projects provided by the Licensor are intended as example Projects for use by the Licensee in learning how to use the Software. Projects provided by the Licensor are not necessarily complete or validated regarding practical, biological, and economic feasibility. Projects provided by the Licensor are provided on an “as is” basis, without warranty of any kind. Licensee retains all rights, title, and interest in the Projects it creates and in the Project specifications, simulation output data, tables, and graphs it generates using the Software. Projects provided by the Licensor remain the property of the Licensor. Licensee may use and modify Projects provided by the Licensor for its own purposes, and retains all rights in the specifications and output data it adds, but acquires no ownership of the underlying Licensor-provided Project. At the Licensee’s discretion, Projects created by the Licensee may be shared with other Licensees of the Software.
Minor Software Upgrades. If internal errors are found in the Software, the Licensor will use commercially reasonable efforts to address verified Software errors within a reasonable period of time after the Licensee or Licensor discovers such errors. The Licensor will announce and provide such minor upgrades of the Software at www.AquaFarm.com, including directed email to all current Licensees. Minor upgrades of the Software that are due to error correction of the Software will be made available to current Licensees at no additional charge per Software License subscription term.
Major Software Upgrades. The Software is subject to ongoing advancements. Similar to Minor Software Upgrades, new versions of the Software will be made available at www.AquaFarm.com for current Licensees, at no additional charge per Software License subscription term.
Privacy and Data Collection. The Software does not transmit or share a Licensee’s personal data or a Licensee’s Project database. All Project specifications and simulation results remain processed and held locally on Licensee’s machine. When a License is activated on a computer, and when an activation is released, the Software transmits the License key together with a hardware-derived machine identifier to Licensor’s license management service, in order to bind the License to that computer and to count activations against the number acquired. The Software does not otherwise contact Licensor during normal operation. This machine identifier is used solely for License activation, release, and compliance purposes. It does not identify Licensee personally, and is not shared with any party other than Licensor’s licensing service provider for that purpose.
Reverse Engineering. You may not modify, translate, reverse engineer, reverse compile, disassemble, or create derivative works based on the Software or any portion thereof. You may not run the Software under a debugger or similar tool allowing you to inspect the inner workings of the Software.
License Verification. You may not bypass, disable, circumvent, tamper with, or interfere with any license key, activation, or verification mechanism used to control or monitor access to the Software, nor attempt to do so, nor use or distribute any tool, technique, or third-party software designed for that purpose. You may not falsify, alter, or misrepresent any information transmitted to Licensor or its licensing service provider in connection with License activation, activation counting, or compliance verification.
Copying. You may not copy the Software or its User Manual except as specifically provided by this EULA.
Separation of Components. The Software is licensed as a single product. You may not separate the Software or User Manual component parts for use on more than one computer.
Software Transfer. Except as explicitly permitted in a written enterprise agreement or corporate licensing addendum signed by Licensor, you may not rent, lease, lend, sublicense, or otherwise temporarily or permanently transfer, assign, or delegate the Software, this EULA, or any rights granted hereunder to any third party, including by operation of law, merger, divestiture, acquisition, or change of control, without the prior express written consent of Licensor. Any attempted transfer or assignment in violation of this section shall be null and void ab initio.
Proprietary Notices. You may not remove any proprietary notices, labels or marks on the Software or User Manual.
Audit Rights and Verification. Upon Licensor’s reasonable written request, Licensee shall provide a written statement certifying that the Software is being used in full compliance with the terms of this EULA, including the number of computers on which the Software is installed. Licensor, or its designated independent professional auditor, shall have the right, upon fifteen (15) days’ prior written notice, to conduct an audit of Licensee’s relevant systems, records, and facilities during normal business hours to verify compliance, provided that the audit is conducted in a manner reasonably designed to minimize disruption and protect Licensee’s confidential information. If an audit reveals underpayment or deployment exceeding authorized numbers, Licensee shall promptly procure the required Licenses at Licensor’s then-current standard rates and reimburse Licensor for the reasonable cost of the audit.
All title, ownership rights, and intellectual property rights for the Software and User Manual, and any copies thereof, shall remain vested in the Licensor. Licensee acknowledges that it acquires no ownership interest, patent rights, trade secret rights, or copyrights in the Software, and that the source code of the Software remains a confidential trade secret of Licensor. The Software and User Manual are protected by the copyright laws and other intellectual property laws of the United States and international treaties.
The EULA is in effect until terminated or, for a term-based License, until expiration of the applicable License term unless renewed. You may terminate this EULA by ceasing all use of the Software and User Manual, and deleting or otherwise destroying the Software and User Manual. Licensor may terminate this EULA if Licensee materially fails to comply with its terms and conditions. Upon expiration or termination, Licensee must cease use of the Software and destroy all copies of the Software and User Manual, except to the extent retention is required by law. Expiration or termination of the License does not transfer ownership of, or require deletion of, Licensee-owned Project database files or other Licensee-owned Project content. However, continued access to or use of such files through the Software may require a valid License. Sections 2, 3, 5, 6, and 7 shall survive any termination or expiration of this EULA.
Licensor warrants that, for a period of thirty (30) days following initial delivery, the Software will substantially conform to the applicable User Manual when used in accordance with the User Manual on a computer system meeting the system requirements published by Licensor at www.AquaFarm.com. Licensee’s exclusive remedy, and Licensor’s entire liability, for breach of this limited warranty shall be, at Licensor’s option, correction or replacement of the Software or refund of the applicable License fee paid by Licensee. This is a limited warranty and the only warranty made by the Licensor. Except for this stated limited warranty, the Software and User Manual are provided “as is”. Licensor makes no other warranties, and expressly disclaims the implied warranties of merchantability, fitness for a particular purpose, and non-infringement of third-party rights. Licensor does not warrant that the functions contained in the Software will meet Licensee’s requirements or that installation or operation of the Software will be uninterrupted or error free.
The Software, provided example Projects, and User Manual are meant to assist in the planning, design, simulation, education, and management of aquatic, aquarium, and aquaculture facilities. The Software is a planning, design, simulation, educational, and decision-support tool and is not a substitute for professional engineering judgment or other qualified professional advice. Results, calculations, simulations, equipment sizing, design recommendations, and other Software outputs should be independently reviewed and verified by Licensee and, where appropriate, by qualified engineers or other professionals before being used for construction, equipment procurement, facility operation, animal husbandry, or other practical applications. Licensee is solely responsible for determining the suitability and accuracy of Software outputs for its particular application. Although every precaution and great care has been taken in the preparation of the Software, it is not possible to warrant that the Software is error free, and no responsibility for errors or omissions is assumed except as expressly provided in Section 5. Example Projects provided with the Software are intended only to show examples of facility layouts and specifications and are not intended to provide fully developed, validated, or economically viable facilities.
The Software, provided example Projects, and User Manual are provided on an “as is” basis except for the limited warranty expressly stated in Section 5. To the maximum extent permitted by applicable law, in no event shall the Licensor be liable for any consequential, special, incidental, indirect, exemplary, or punitive damages of any kind arising out of or related to the delivery, performance, or use of the Software, including but not limited to lost profits, loss of business opportunity, loss of data or files, loss of use, business interruption, cost of substitute equipment or services, facility or equipment damage, loss of production, loss of livestock or other aquatic organisms, crop loss, or loss of anticipated savings, even if Licensor has been advised of the possibility of such damages. These limitations and exclusions apply regardless of the theory of liability, whether in contract, tort (including negligence), strict liability, statutory liability, or otherwise, and even if a remedy fails of its essential purpose. In no event shall Licensor’s total aggregate liability for all claims arising out of or related to this EULA exceed the licensing fees paid by Licensee to Licensor for the specific Software License during the twelve (12) months immediately preceding the event giving rise to liability.
This EULA represents the complete agreement concerning this License between the parties and supersedes all prior or contemporaneous agreements and representations between them with respect to the subject matter. This EULA may be amended only in a writing executed by both parties, except that Licensor may present an updated EULA in connection with a License renewal or the installation of a new version of the Software, in which case continued use of the Software following acceptance of that updated EULA shall be governed by the terms of the updated EULA. The acceptance of any purchase order placed by you is expressly made conditional on your assent to the terms set forth herein, and not those contained in your purchase order, and such purchase order terms shall have no effect on this EULA. If any provision of this EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remainder of this EULA shall remain in full force and effect.
Licensor Assignment. Licensor may assign this EULA and all rights and obligations hereunder, in whole or in part, to a successor or acquirer of the Software or of substantially all of the Licensor’s assets, without the consent of Licensee.
Notices. Any notice required or permitted under this EULA shall be in writing and shall be delivered to Licensor at AquaFarm Software LLC, ____________________ [mailing address], or by email to ____________@aquafarm.com, and to Licensee at the mailing address and email address provided by Licensee at the time of License acquisition. Notice is effective upon receipt.
Third-Party Components. The Software includes runtime libraries and license-management components supplied by third parties and redistributed by Licensor under license from their respective owners. Those components remain the property of their respective owners and are provided subject to the terms under which Licensor is permitted to redistribute them. Nothing in this EULA grants Licensee any right in those components beyond their use as part of the Software.
U.S. Government Rights. The Software and User Manual are “commercial computer software” and “commercial computer software documentation” as those terms are used in 48 C.F.R. 12.212 and 48 C.F.R. 227.7202. Government end users acquire only those rights in the Software and User Manual that are set forth in this EULA.
Governing Law and Jurisdiction. This EULA shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its conflict of laws principles. Any legal action, suit, or proceeding arising out of or related to this EULA shall be instituted exclusively in the state or federal courts located in New Castle County, Delaware, and each party irrevocably submits to the personal jurisdiction and venue of such courts.
Injunctive Relief. Licensee acknowledges that a breach or threatened breach of Section 2 (Restrictions) or Section 3 (Title and Copyright) would cause irreparable harm to Licensor for which monetary damages alone would be inadequate. Accordingly, Licensor shall be entitled to seek immediate injunctive relief and specific performance to enforce its intellectual property rights without the necessity of posting a bond or proving actual damages.
Export Control. Licensee agrees to comply strictly with all United States export control laws and regulations, and assumes sole responsibility for obtaining any required export or re-export licenses.
END of EULA