SKF SimPro End-User License Agreement
THIS END-USER LICENSE AGREEMENT (this ''Agreement') is entered into by and between SKF Sverige AB a SKF Group Affiliate company (hereinafter referred to as the "Licensor") and any person or business that executes this Agreement by clicking the 'I Accept' icon or by accessing or using the Software (hereinafter referred to as the “Licensee” or “You”). Licensor and Licensee shall be referred to collectively in this Agreement as the Parties.
BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING, USING, OR NOT DEINSTALLING THE SOFTWARE, OR ANY PART THEREOF, YOU EXPRESSLY AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS
AGREEMENT, YOU MAY NOT ACCESS, USE ANY PART OF THE SOFTWARE AND YOU SHOULD IMMEDIATELY DEINSTALL THE SOFTWARE.
(a) Derivative Works. The Term 'Derivative Works' shall mean any work based on the Software, such as an adaptation of the Software to another platform or operating system, or any other translation, transformation, modification, or adaptation protected by copyright law in the applicable jurisdiction.
(b) Effective Date. The term 'Effective Date' shall mean the date on which Licensee assents to the terms of this Agreement by clicking the 'I Accept' button.
(c) Intellectual Property Rights. The term Intellectual Property Rights shall mean all rights arising or protectable under the copyright, trademark, patent, or trade secrets laws of any applicable country, including all rights associated with the protection of computer programs and/or source code.
(d) Person. The term 'Person' shall mean an individual, a partnership, a company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a governmental entity (or any department, agency, or political subdivision thereof).
(e) Software. The term "Software" shall mean the software application entitled or any other software within the SKF SimPro family suite, as for example SKF SimPro Expert, SKF SimPro Spindle or SKF SimPro Quick. The term Software shall include any object code within the SKF SimPro family suite and any and all user manuals, training material, eLearning material or other technical documentation, authorized by Licensor in connection with the SKF SimPro family suite. The term "Software" includes any corrections, bug fixes, enhancements, releases, updates, upgrades, or other modifications, including custom modifications, to any software within the SKF SimPro family suite and all user manuals. The term Software also includes any supplemental, add-on, or plug in software code provided to Licensee in the course of receiving support services directly or indirectly from Licensor. The term Software shall not be construed to include the source code for any software within the SKF SimPro family suite.
(f) SKF Group Affiliate Company. SKF Group Affiliate Company means a company of which Aktiebolaget SKF, Gothenburg, Sweden is the ultimate parent company.
(a) Grant of License. Licensor grants Licensee, pursuant to the terms and conditions of this Agreement, a stand-alone, non-exclusive, non-transferable, and revocable license to use the Software, activated by a license key provided by the Licensor, in strict accordance with the terms and conditions of this Agreement, including any concurrent use, network or other limitations set forth in subsection (c) below. All rights not specifically granted by Licensor under this Agreement are retained by Licensor and withheld from Licensee.
(b) Installation and Use Rights. Licensee shall use the Software by installing one (1) copy of the Software on only one (1) computer, whether such equipment is owned, leased, or rented, at the Licensee's principal business office.
(c) Restrictions on Use. Licensee may use the Software only for its internal business purposes and on the identified equipment on which the Software was first installed or for which it is otherwise licensed. Licensee may not use the Software for any other purpose. Licensee shall not:
(i) permit any parent, subsidiaries, affiliated entities or third parties to use the Software;
(ii) use the Software in the operation of a service bureau;
(iii) allow access to the Software through any workstations located outside of Licensee's principal business offices;
(iv) rent, resell, lease, timeshare or lend the Software to any Person;
(v) sublicense, assign, or transfer the Software or this license for the Software to any Person;
(vi) reproduce, distribute, or publicly display the Software;
(vii) make the Software accessible to any Person by any means, including posting on a web site or through other distribution mechanisms over the Internet;
(viii) reverse assemble, disassemble, reverse engineer, reverse compile, decompile, or otherwise translate the Software or prepare Derivative Works based on the Software;
(ix) edit or modify the Software except as expressly authorized by Licensor, including altering, deleting, or obscuring any proprietary rights notices embedded in or affixed to the Software;
(x) use the Software in any manner that disparages Licensor, or use the Software in a way that infringes Licensor's Intellectual Property Rights; or
(xi) use the Software in a manner that violates any national, federal, state, or local law, rule or regulation, or use the Software to violate the rights of any third party, or use the Software to promote pornography, hatred, or racism.
(d) Copies. Licensee, solely to enable it to use the Software, may make one archival copy of the Software's computer program, provided that the copy shall include Licensor's copyright and any other proprietary notices. The Software delivered by Licensor to Licensee and the archival copy shall be stored at Licensee's principal business office. Except for the limited reproduction rights set forth in this paragraph, Licensee shall have no other right to copy, in whole or in part, the Software. Any copy of the Software made by Licensee is the exclusive property of Licensor.
(e) Modifications. Licensee agrees that only Licensor shall have the right to alter, maintain, enhance or otherwise modify the Software. Licensee further acknowledges its awareness that once the Software has been modified by Licensor, and Licensee has not acquired the version of the Software as modified, and Licensee may only use the version of the Software immediately preceding the latest modified version. Licensor may oblige the Licensee to make immediate updates provided by the Licensor in exceptional circumstances such as if the Licensor has reasons to believe that there is a critical security issue which must be remedied or suspected or ongoing claims relating to the rights to the Software.
(f) Protection of Software. Licensee agrees that it will take action by instruction, written agreement, or otherwise as appropriate with any person permitted access to the Software to enable Licensee to comply with its obligations hereunder. Licensee shall maintain records of the number and location of all copies of Software. Licensee shall not provide, permit access to or use of, or otherwise make available any Software in any form without Licensor's prior written agreement, except to Licensee's employees for purposes specifically authorized by this Agreement. Licensee understands and agrees that the source code for the Software is a valuable copyright and contains valuable trade secrets of Licensor. Licensee agrees not to discover or attempt to discover, or assist or permit any Person to discover or attempt to discover, by any means whatsoever the source code of the Software.
(g) Licensor's Audit Rights. If Licensor reasonably suspects that there has been a breach of provisions for the use of the Software, including license restrictions, Licensor shall possess the right to audit Licensee's use of the Software to determine compliance with this Agreement (hereinafter referred to as ''Licensor's Audit Rights'). Licensor's Audit Rights shall be exercised in accordance with the following paragraphs:
(i) Notice of Audit. Licensor shall provide Licensee with at least five (5) calendar days advance written notice of its intent to exercise the Licensor's Audit Rights.
(ii) Conduct of Audit. The audit conducted by Licensor shall consist of a physical review of the computer hardware, software, and middleware operated by Licensee at its principal business office and any other office for which Licensor, in its sole and arbitrary discretion, deems an audit appropriate. Licensee shall provide Licensor with unrestricted access to its computer hardware, software, and middleware in connection with any audit conducted by Licensor.
(iii) Costs of Audit. If Licensor's audit uncovers a violation of this Agreement by Licensee, Licensee shall pay all costs and expenses incurred by Licensor in exercising the Licensor Audit Rights, including, without limitation, all attorneys' fees and agent fees incurred by Licensor. If Licensor concludes that no violation of this License Agreement has occurred, Licensor shall bear all costs and expenses incurred in exercising the Licensor Audit Rights. If Licensee obstructs, restricts, or otherwise prevents Licensor from conducting a full and unrestricted audit, Licensee shall bear all costs and expenses, including attorneys' fees, incurred by Licensor in enforcing this Section 2(g)before any court or judicial tribunal.
(iv) Frequency of Audits. Licensor's Audit Rights shall be exercised no more than two (2) times in any one calendar year.
(h) Validity of Intellectual Property Rights. In any action, dispute, controversy, or lawsuit arising out of or related to this Agreement, Licensee shall not contest the validity of Licensor's Intellectual Property Rights related to the Software provided that such obligation is in compliance with Applicable law. Licensee hereby agrees that it has had an opportunity to investigate the validity of Licensor's Intellectual Property Rights, and acknowledges that Licensor's Intellectual Property Rights related to the Software are valid and enforceable.
(i) Material Terms and Conditions. Licensee specifically agrees that each of the terms and conditions of this Section 2 are material and that failure of Licensee to comply with these terms and conditions shall constitute sufficient cause for Licensor to terminate this Agreement and the license granted hereunder immediately and without an opportunity to cure. This subsection 2(i) shall not be construed to preclude, or in any way effect, a finding of materiality with respect to any other provision of this Agreement.
3. License Fee
The applicable licensee fees will be set forth in the quote issued to Licensee by Licensor or otherwise established in the applicable purchase order or other ordering documents memorializing Your license acquisition.
(a) Title. Licensee understands and agrees that Licensor has been granted the right to sublicense and market the Software and that all Intellectual Property Rights related to the Software, including custom modifications to the Software, whether made by Licensor or any third party is vested in a member of the SKF Group. Licensee agrees that this Agreement effects a license, not a sale, of the Software and that any first sale doctrine which may be applicable under the governing law does not apply to the transaction effected by this Agreement. The licensed open source software and applicable license terms including credits and applicable terms for usage by the Licensee can be found via these links "Licences_3rd_party.pdf" or in the “About” dialogue box.
(b) Transfers. Under no circumstances shall Licensee sell, license, sublicense, publish, display, distribute, assign, or otherwise transfer (hereinafter referred to collectively as a ''Transfer') to a third party the Software or any copy thereof, in whole or in part, without Licensor's prior written consent. Any Transfer effected in violation of this Section 4(b) shall be void ab initio and of no force or effect.
5. Support and Technical Advice
Licensor may provide You with support services and technical advice in relation to the Software and/or in connection with the use of the Software. Use of any support services is governed by the policies and programs described in support services material from Licensor that may be updated by Licensor from time to time. Any technical assistance and advice provided by the Licensor is governed by SKF General Conditions for Technical Assistance and Advice available at www.skf.com and which may be updated by Licensor from time to time. If You receive any support services or technical assistance or advice, these policies and/or general conditions shall be specifically incorporated into this Agreement by this reference. Licensee grants the Licensor a non-exclusive, royalty-free, worldwide and transferable license to use, copy, modify and further develop any technical information regarding the use or functionality of the Software provided by Licensee in the course of receiving support services and/or technical assistance and advice, or otherwise in the course of Licensee’s use of the Software, for Licensor's business purposes, including without limitation for product support or technical advice to other customers and product development, with a license term of fifty (50) years from the date of this Agreement. Licensor will not utilize such technical information in a manner that identifies Licensee.
6. Confidential Information
Licensee agrees that the Software contains proprietary information, including trade secrets, know-how and confidential information (hereinafter referred to collectively as the ''Confidential Information'), that is the exclusive property of Licensor. During the period this Agreement is in effect and at all times after its termination, Licensee and its employees and agents shall maintain the confidentiality of the Confidential Information and shall not sell, license, publish, display, distribute, disclose or otherwise make available the Confidential Information to any Person nor use the Confidential Information except as authorized by this Agreement. Licensee shall not disclose the Confidential Information concerning the Software,
including any flow charts, logic diagrams, user manuals and screens, to persons not an employee of Licensee without the prior written consent of Licensor.
7. Limited Warranties
(a) Licensor warrants that the Software will perform substantially in accordance with its documentation for a period of one year from the date of shipment of the Software; provided, however, that the foregoing warranty only applies if: (i) Licensee makes Licensor aware of any defect with the Software within seven (7) days after the occurrence of the defect; (ii) Licensee has paid all amounts due under this Agreement; and (iii) Licensee has not breached any provision of this Agreement. The foregoing warranty does not apply in the event that: (i) the Software and documentation have been subject to misuse, neglect, alteration, modification, customization, improper installation, and/or unauthorized repair; (ii) the Software or any associated software or equipment have not been properly maintained in accordance with applicable specifications and industry standards or have been maintained in unsuitable environmental conditions; or (iii) Licensee has used the Software in conjunction with other equipment, hardware, software, or other technology that created an adverse
impact on the operation, functioning, or performance of the Software.
(b) If the Software does not function as warranted above and the problem cannot be resolved with information available from Licensor to its licensees in general, Licensee may return the Software to the party from whom Licensee obtained its license and receive a refund of the amount Licensee paid. After returning the Software, Licensee’s license to the Software terminates.
(c) EXCEPT AS SET FORTH IN THIS SECTION 7 AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL EXPRESS AND/OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABILITY OF A COMPUTER PROGRAM, INFORMATIONAL CONTENT, SYSTEM INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, ARE HEREBYDISCLAIMED AND EXCLUDED BY LICENSOR. FOR THE SAKE OF CLARITY, LICENSOR TAKES NO RESPONSIBILITY FOR THE END RESULT OF THE LICENSEE’S USE OF THE SOFTWARE.
(d) The remedies set forth in this Section 7 are the exclusive remedies available to Licensee for any problem in the performance of the Software.
8. Limitations on Liability
(a) Limitations and Exclusions. IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER SPECIAL DAMAGES, LOST PROFITS, OR LOSS OF INFORMATION SUFFERED BY LICENSEE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF THE SOFTWARE, FOR ALL CAUSES OF ACTION OF ANY KIND (INCLUDING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY OR CONDITION, AND STATUTORY) EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PRECEDING EXCLUSION AND DISCLAIMER OF DAMAGES SHALL APPLY TO ALL CLAIMS MADE BY LICENSEE RELATED TO ORARISING OUT OF LICENSEE'S USE OF THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, CLAIMS ALLEGING THAT THE SOFTWARE, OR ANY COMPONENT THEREOF, FAILED OF ITS ESSENTIAL PURPOSE OR FAILED IN SOME OTHER RESPECT.
(b) Acknowledgement. Licensee agrees that the limitations of liability and disclaimers of warranty set forth in this Agreement will apply regardless of whether Licensor has tendered delivery of the Software or Licensee has accepted the Software. Licensee acknowledges that Licensor has set its prices and entered into this Agreement in reliance on the disclaimers of warranty and the limitations and exclusions of liability set forth in this Agreement and that the
same form an essential basis of the bargain between the Parties.
9. Term and Termination
(a) Term. This Agreement shall commence on the Effective Date and shall continue in existence until it is terminated in accordance with Section 9(b) below, or in case the Software has not been used by Licensee during a period of twelve (12) months as from the Effective Date, which period of non-use will automatically serve as termination of this Agreement.
(b) Termination. Licensor may terminate this Agreement and the license conveyed hereunder in the event that Licensee breaches any provision, term, condition, or limitation set forth in this Agreement, including but not limited to the license restrictions set forth in Section 2(c) of this Agreement.
(c) Effect of Termination. Within ten (10) days after termination of this Agreement and the license granted hereunder, Licensee shall return to Licensor, at Licensee's expense, the Software and all copies thereof, and deliver to Licensor a certification, in writing signed by an officer of Licensee, that all copies of the Software have been returned to Licensor and that Licensee has discontinued its use of the Software.
Licensee shall not assign or otherwise transfer the Software or this Agreement to anyone, including any parent, subsidiaries, affiliated entities or third Parties, or as part of the sale of any portion of its business, or pursuant to any merger, consolidation or reorganization, without Licensor's prior written consent. Any assignment or transfer effected in violation of this Section 10 shall be void ab initio and of no force or effect.
11. Force Majeure
Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications; provided, however, that lack of funds shall not be deemed to be a reason beyond a party's reasonable control. The Parties will promptly inform and consult with each other as to any of the above causes that in their judgement may or could be the cause of a delay in the performance of this Agreement.
All notices under this Agreement are to be delivered by depositing the notice in the mail, using registered mail, return receipt requested, to the party's last known principal business address or to any other address as the party may designate by providing notice. The notice shall be deemed delivered four (4) days after the notice's deposit in the mail, if such
notice has been sent by registered mail.
13. Applicable Law
This Agreement shall be governed by the law of the country in which the Licensor has its principle place of business, notwithstanding its conflict of laws rules. The United Nations Convention for the International Sale of Goods (CISG) shall not be applicable.
14. Export controls
Licensee shall not export or reexport, directly or indirectly, the Software, or use the Software to export or reexport any information, without complying with pertinent export controls imposed by any applicable country (or any future export control legislation) and the regulations promulgated thereunder.
15. Government end users
If Licensee is acquiring the Software for or on behalf of a subdivision of the U.S. federal government, this Section 15 shall apply. The Software was developed completely at private expense, is existing computer software, is a trade secret for all purposes of the Freedom of Information Act, is ''restricted computer software' and in all respects proprietary data belonging solely to or licensed by Licensor, and all rights are reserved under the copyright laws of the United States. Use, duplication, or disclosure by the Government is subject to restricted rights as set forth in subparagraphs (a)through (d) of the Commercial Computer Software Restricted Rights clause at FAR 52.227-19, or for DoD units, the restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013.
Licensee agrees that SKF, or any software within the SKF SimPro family suite and the trade dress, logos and other designations of source used by Licensor to identify the Software are trademarks or registered trademarks of the SKF Group. Licensee shall not use such trademarks or service marks without the prior written consent of Licensor. If the Software contains any active links to web sites, you agree to maintain suchactive links and not redirect or modify them.
17. General Provisions
(a) Complete Agreement. The Parties agree that this Agreement is the complete and exclusive statement of the agreement between the Parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral or written, between the Parties relating to the use of the Software.
(b) Amendment. This Agreement may be amended by the Licensor and the changes become binding for the Licensee when the Licensee has approved the terms by clicking the acceptance button or by using the Software. Any purchase orders or other ordering documents issued to Licensee by Licensor shall not have the effect of amending or modifying this Agreement, and shall only serve to memorialize the number of licenses or products ordered by Licensee. In the event of a conflict between the support services policies and this Agreement, the terms of this Agreement shall control. For the sake of clarity, any separate written and signed agreement between the Licensor and the Licensee or the Licensee’s employer which explicitly sets out to amend the terms of this Agreement shall prevail over the terms of this Agreement.
(c) Waiver. The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.
(d) Severability. If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
(e) Read and Understood. Each party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms.
(f) Limitations Period. No action arising under, or related to, this Agreement, may be brought by either party against the other more than two (2) years after the cause of action accrues, unless the cause of action involves death or personal injury.
(g) Attorneys' Fees. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation will be entitled to recover from the other party all the costs, reasonable attorneys' fees, and other expenses incurred by such prevailing party in the litigation.
(h) Authorized Representative. The person installing or using the Software on behalf of Licensee represents and warrants that he or she is legally authorized to bind Licensee and commit Licensee to the terms of this Agreement.
(i) Injunctive Relief. Licensee agrees that Licensor would suffer irreparable harm as a result of a violation of Sections 2, 4, 6, 10, 14, and 16 of this Agreement and that monetary damages in such event would be substantial and inadequate to compensate Licensor. Consequently, Licensor shall be entitled to obtain, in addition to such other monetary relief as may be recoverable at law or in equity, such injunctive other equitable relief as may be necessary to restrain any threatened, continuing, or further breach by Licensee without showing or proving actual damages sustained by Licensor and without posting a bond.
(j) Personal data. Licensor will collect and process certain personal data about You/Licensee as a user of the Software. More information about how Licensor processes Your personal data is found in the Privacy Notice for SKF Engineering Tools.
(k) Data Collection. Through usage of the Software, the Licensor will collect certain usage data such as login details, access to software functionalities, data of downloaded SKF products, user interactions, calculation results and user defined tool settings. Licensor will use such information for purposes of supporting the Licensee, compiling statistics, preventing misuse, improving the Software and improving Licensor’s offer to customers e.g. through marketing offers to Licensee.
18. Trial Period
If the Licensee is using the Software free of charge during a trial period in order to test and assess the functionality of the Software, the following provisions shall apply in addition to the other provisions of this Agreement but shall in the case of discrepancy with any other term of this Agreement override such term:
(a) No Warranties LICENSEE AGREES THAT LICENSOR MAKES NO WARRANTIES UNDER THIS AGREEMENT AND THAT THE SOFTWARE IS PROVIDED “AS IS”. NO WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE BY LICENSOR WITH RESPECT TO THE SOFTWARE, ANY SERVICES, DATA, OR TECHNICAL ADVICE OR INSTRUCTIONS AS MAY BE PROVIDED BY LICENSOR UNDER THIS AGREEMENT. LICENSOR DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION THAT THE TRIAL SOFTWARE, THE OPERATION OF THE TRIAL SOFTWARE, OR ANY RELATED SOFTWARE SERVICES, OR SOURCE CODE WILL BE UNINTERRUPTED OR ERROR FREE, AND DOES NOT MAKE ANY WARRANTY, GUARANATEE, OR MAKE ANY REPRESENTATION REGARDING CORRECTNESS, ACCURACY, RELIAIBLITY, OR OTHERWISE OF THE TRIAL SOFTWARE, ANY SERVICES, DATA, TECHNICAL ADVICE, OR INSTRUCTIONS. FOR THE SAKE OF CLARITY, LICENSOR TAKES NO RESPONSIBILITY FOR THE END RESULT OF THE LICENSEE’S USE OF THE SOFTWARE.
(b) Evaluation Period. The evaluation Period shall begin when the Software key is provided by the Licensor and extend for not more than ninety (90) days without written consent of both Parties (“Evaluation Period”). The purpose of testing the Software is to verify that the Software will perform to its specifications. The Licensee has no obligation to purchase or license the Software after the end of the Evaluation Period and Licensor has no obligation to prolong the license. Each Party has the right to terminate the Agreement during the Evaluation Period at any time without providing any reason.
(c) Training. The Parties shall during the first 30 days of the Evaluation Period conduct a training session in which the Licensor’s staff will explain and demonstrate the capabilities of the Software. This training will be done by Licensor at location agreed by both Parties. The physical training can be substituted by other means (such as e-learning, webinar, etc.) if deemed appropriate by Licensor.
(d) Procedure Upon Conclusion of Test and Evaluation Period. Upon the conclusion of the Evaluation Period, Licensee may, at its option and subject to the Licensors approval, elect to either:
(i) remove the Software and if applicable return all copies of the Software to Licensor; or
(ii) proceed to purchase Licensor’s Software and services whereby this section 18 seizes to be applicable.