K&C CONCRETE MODEL VUMAT FOR ABAQUS

SOFTWARE LICENSE AGREEMENT
This Software License Agreement (this “Agreement”) is entered into as of the date of acceptance of this Agreement. ("Effective Date") by and between Karagozian & Case, Inc., a California corporation ("K&C"), and the Licensee through submission of this form ("Licensee").
K&C has created and developed the K&C Concrete model VUMAT for Abaqus (the “Software”; for the purposes of this Agreement, the term “Software” also includes all improvements, enhancements, modifications, changes, corrections, or adaptations thereof, in any medium, format, or form irrespective of whether any such improvements, enhancements, modifications, changes, corrections, or adaptations are created or developed by K&C, by Licensee, or by any other licensee of the Software;
Licensee desires to license from K&C, and K&C desires to license to Licensee, the Software on an annual basis and subject to the conditions contained in this Agreement.
In consideration of the premises and of the mutual covenants and agreements of K&C and Licensee contained in this Agreement, K&C and Licensee do hereby agree as follows:
1. GRANT OF LICENSE
1.1 K&C hereby grants to Licensee a non-exclusive, non-transferable, royalty-free license to install, execute, and use the Software on an annual basis (the “Term”) solely for individual use (the “Permitted Use”) and for no other use. Licensee may use the Software only at the location and for one individual user.
1.2 Licensee may install the Software only onto Licensee’s internal computer system. Licensee may create one copy of the Software for backup or archival purposes only.
1.3 Licensee shall not without the explicit, prior written consent of K&C in each instance:
1.3.1 sell, lease, assign, sublicense, or otherwise transfer, for or without consideration, all or any portion of the Software or its interest therein or rights thereto; or
1.3.2 provide or allow to any third-party access to the Software or the benefits of the use of the Software except to the extent contemplated by the Permitted Use; or
1.3.3 make any copies of the Software except for one backup copy, which Licensee shall keep in a safe and secure location, which Licensee shall identify to K&C, provided all copyright and other notices are reproduced and included on the backup copy;
1.3.4 permit any timesharing, service bureau, subscription service, or rental use of the Software;
1.3.5 permit any person other than an authorized employee of Licensee to use or otherwise have access to the Software; or.
1.3.6 remove, deface, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or withing the Software or any copies thereof.
1.4 Licensee shall not use the Software, or permit the Software to be used, for any unlawful purpose.
1.5 If the Software is delivered in object or executable code only, Licensee shall not, and shall not permit or suffer anyone else to, undertake, nor attempt to undertake, to (i) download the Software from Licensee’s servers; (ii) disassemble, de-encrypt, decompile, reverse assemble, re-engineer, or reverse engineer the Software, or otherwise attempt to discern the source code therefor; (iii) alter the original configuration of the root directory of the Software; or (iv) modify, improve, alter, revise, change, or make derivative works of the Software.
1.6 Licensee shall not make any representations or warranties on behalf of K&C or otherwise with respect to the Software.
1.7 If the Permitted Use includes the right of Licensee to utilize the Software to provide services to third parties,
1.7.1 Licensee shall not claim any ownership interest in the Software and shall identify K&C as the creator and owner of the Software to each such third party;
1.7.2 Licensee shall not utilize the Software to provide any services to a third party unless, not later than ten days prior to utilizing the Software for such purpose, Licensee notifies K&C of its desire to do so and identifies such third party to K&C to the reasonable satisfaction of K&C and K&C, by notice to Licensee, consents to the utilization of the Software to provide such services to such third party;
1.7.3 Licensee shall not include the Software or any portion or derivative thereof in its deliverables to such third party nor otherwise make the Software or any portion or derivative thereof available to such third party;
1.7.4 Licensee utilizes the Software for such purpose solely at its own risk.
1.8 Licensee shall supervise, manage, and control its use of the Software. In particular, Licensee shall (i) assure proper configuration of equipment or devices; (ii) establish adequate operating methods; and (iii) implement procedures sufficient to satisfy its obligation for security under this Agreement.
2. MODIFICATIONS, ENHANCEMENTS, CORRECTIONS.
2.1 If the Software includes the Source Code, Licensee may create improvements, enhancements, or other modifications to the Software from time to time during the Term. If Licensee elects to do so, it shall so advise K&C and shall upload modified or new code, including tests, to the Software repository for each such improvement, enhancement, or other modification to a branch of the Site without impacting or otherwise affecting the Software as it then exists on the Site. Licensee warrants to K&C that no improvement, enhancement, or other modification so uploaded by Licensee will infringe the patent, copyright, trade secret, or other proprietary right of any third party.
2.2 If Licensee notifies K&C of a substantial program error respecting the Software, or K&C has reason to believe that an error exists in the Software and so notifies Licensee, K&C shall at its expense verify and use commercially reasonable efforts to correct such error; however, the failure of K&C to effect any such correction shall not be deemed a breach of its obligations under this Agreement. For the sake of clarity, K&C shall not be obligated to correct any error that arises out of Licensee’s improper use of the Software; attempt to create an improvement, enhancement, or other modification of the Software; or combining or merging the Software with software not approved by K&C
2.3 All improvements, enhancements, and other modifications to the Software, if effected by Licensee or by any other licensee of the Software, shall be considered “works for hire.” All such improvements, enhancements, and other modifications, as well as all corrections effected by K&C shall be and remain the sole property of K&C. Licensee hereby assigns to K&C any improvements, enhancements, and other modifications to the Software effected by Licensee. Licensee agrees to execute any documents and to take any other reasonable actions requested by K&C in order to register or confirm K&C’s ownership in such improvements, enhancements, and other modifications.
3. PROPRIETARY RIGHTS
Licensee acknowledges that K&C regards the log-in information provided to Licensee under Section 1.2 of this Agreement; the Software; and all copyrights (including the right to reproduce, distribute copies, and prepare derivative works), trademark rights, patent rights, trade names, trade secrets, moral rights, algorithms, goodwill, and other intellectual property rights, and all renewals and extensions thereof and all registrations and applications therefor and all documentation and other information relating to the origin, design, manufacture, programming, operation, function, configuration, or service of the Software (the “Confidential Information”) as its proprietary information and as confidential trade secrets of great value. Licensee agrees not to (i) use the Confidential Information for any purpose or in any manner other than as authorized in this Agreement or (ii) provide or otherwise make available in any form the Confidential Information, or any portion thereof, to any third party without the prior written consent of K&C. Licensee shall limit disclosure of the Confidential Information to those of its employees who have a “need to know,” who have executed written confidentiality agreements with Licensee and who have been advised of the confidential nature of the Confidential Information. Licensee further agrees to treat the Confidential Information with at least the same degree of care with which Licensee treats its own confidential information and in no event with less care than is reasonably required to protect the confidentiality of the Confidential Information. If Licensee is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand, or other process) to disclose any Confidential Information (the “Compelled Information”), Licensee shall provide K&C with prompt notice of any such request or requirement. Licensee shall not oppose any action by K&C to obtain a protective order or other appropriate remedy and shall cooperate fully with K&C in connection therewith, all at K&C sole expense. If no such protective order or other remedy is obtained, or K&C waives compliance with the terms of this Agreement or, in the absence of such protective order, other remedy, or the waiver by K&C and where Licensee has been advised by counsel that it is legally compelled to disclose the Compelled Information, Licensee will furnish only that portion of the Compelled Information that Licensee is advised by counsel is legally required and will exercise its reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such Compelled Information.
4. TERMINATION
4.1 Notwithstanding the Term specified on Appendix A:
4.1.1 The Term may be terminated by either party, upon a breach or default by the other party of (i) any covenant or term hereof, either express or implied, which breach or default is capable of being cured but is not cured within 20 days following receipt of notice thereof, provided that, if such other breach or default cannot reasonably be cured within such 20 day period, cure is commenced within such 20 day period and thereafter diligently prosecuted to completion.
4.1.2 The Term may be terminated by K&C at any time for any reason or no reason at all by notice to Licensee, such termination to be effective 30 days following the delivery of such notice.
4.1.3 The Term may be terminated by K&C under Section 6.4 of this Agreement.
4.1.4 The Term shall terminate automatically if (i) a decree or order by court having jurisdiction in the premises shall have been entered for relief in respect of either party under Title 11 of the United States Code, as now constituted or as hereafter amended (the “Bankruptcy Code”), or under any other applicable United States Federal or State law relating to its insolvency, or (ii) a receiver, custodian, liquidator, assignee, trustee, sequestrator or other similar official of either party shall have been appointed; or (iii) either party shall file a petition or answer or consent seeking relief under the Bankruptcy Code or under any other United States Federal or State law relating to its insolvency; or (iv) either party shall make an assignment for the benefit of creditors or admit in writing its inability to pay its debts generally as they become due or take action in furtherance of any such action and, with respect to (i) or (ii), either (a) the affected party shall consent to such decree, order, or appointment or (b) any such decree, order or appointment shall continue unstayed and in effect for a period of sixty (60) consecutive days.
4.1.5 The Term shall also terminate automatically if either party ceases the operation of its present business or publicly announces its intention to do so.
4.2 Upon the termination of the Term, whether pursuant to this Section 4 or at the end thereof, Licensee shall immediately discontinue use of the Software.
4.3 Within 5 days after termination of the Term, whether pursuant to this Section 4 or at the end of the Term, Licensee shall either
4.3.1 deliver to K&C the Software and all copies thereof in its possession or under its control as well as all memoranda, notes, records, reports, manuals, drawings, blueprints, schematics, and other documents and all copies thereof in all media in which resident relating to the Confidential Information that it may then possess or have under its control; or
4.3.2 in lieu of delivering to K&C any one or more, or all, of the items referenced in Section 4.3.1, use commercially reasonable efforts to destroy such items or render such items irretrievable or inaccessible and furnish to K&C a certificate executed by Licensee’s CTO, CFO or CEO which certifies that each such item not so delivered has been destroyed.
4.4 Notwithstanding Section 4.3, nothing contained in this Agreement shall require Licensee to deliver to K&C, or to destroy, any hardware on which the Software or any Confidential Information may have been recorded so long as Licensee uses commercially reasonable efforts to render the Software and Confidential Information inaccessible or irretrievable.
4.5 Licensee shall be responsible for compliance with Section 4.3 by its employees, contractors, agents, and all other persons who or which may have the Software or any of the Confidential Information in their possession or under their control upon the termination of the Term.
4.6 The provisions of Sections [3, 4, 6, 9, 12, and 14] of this Agreement shall survive any termination of this Agreement.
5. TECHNICAL SUPPORT
If Licensee has technical questions regarding the use of the Software, Licensee may submit those questions to K&C by e-mail or by telephone during K&C’s normal business hours. K&C shall, at its discretion, shall provide technical support to answer such questions without charge to Licensee.
6. K&C WARRANTY; INDEMNITY AND LIMITATION
6.1 K&C HEREBY REPRESENTS AND WARRANTS TO LICENSEE THAT, TO THE BEST OF K&C’S KNOWLEDGE, THE SOFTWARE DOES NOT INFRINGE THE PATENT, COPYRIGHT, TRADE SECRET, OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY
6.2 THE SOFTWARE IS PROVIDED “AS IS” AND WITH ALL FAULTS. K&C DOES NOT MAKE, AND LICENSEE DOES NOT RECEIVE, ANY OTHER WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, OR TITLE, OR ANY WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR THAT THE SOFTWARE IS FREE OF INACCURACIES, ERRORS, BUGS, MALWARE, INTERRUPTIONS, OR OTHER PROGRAM LIMITATIONS. K&C DOES NOT WARRANT THE RESULTS OF THE SOFTWARE OR THAT ALL ERRORS IN THE SOFTWARE WILL BE CORRECTED OR THAT THE FUNCTIONALITY CONTAINED IN THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS.
6.3 EXCEPT AS PROVIDED IN SECTION 6.4, IN NO EVENT SHALL K&C OR ANYONE ELSE INVOLVED IN THE CREATION OR PRODUCTION OF THE SOFTWARE, OR THE DELIVERY OR LICENSING OF THE SOFTWARE TO LICENSEE, BE LIABLE FOR ANY ACTUAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND , INCLUDING LOST PROFITS OR COST SAVINGS, ARISING OUT OF THE USE OR MISUSE OF, OR INABILITY TO USE, THE SOFTWARE OR ANY DEFECT OR MALFUNCTION IN THE SOFTWARE OR RELATED DOCUMENTATION, OR FOR ANY SERVICES OR PRODUCTS PROVIDED BY LICENSEE TO ITS CUSTOMERS OR CLIENTS, EVEN IF K&C OR ANYONE ELSE INVOLVED IN THE CREATION OR PRODUCTION OF THE SOFTWARE, OR THE DELIVERY OR LICENSING OF THE SOFTWARE TO LICENSEE, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN FURTHERANCE OF THE FOREGOING AND WITHOUT LIMITATION, NEITHER K&C NOR ANYONE ELSE INVOLVED IN THE CREATION OR PRODUCTION OF THE SOFTWARE, OR THE DELIVERY OR LICENSING OF THE SOFTWARE TO LICENSEE, SHALL HAVE ANY LIABILITY FOR DAMAGE OR DESTRUCTION TO ANY HARDWARE, LICENSEE OR THIRD PARTY SOFTWARE, OR DATA STORED OR USED WITH THE SOFTWARE, INCLUDING COSTS OF REPAIRING, REPLACING, OR RECOVERING SUCH HARDWARE, LICENSEE OR THIRD PARTY SOFTWARE, OR DATA.
WITHOUT LIMITING ANYTHING SET FORTH IN THIS AGREEMENT, LICENSEE FURTHER AGREES THAT K&C SHALL NOT BE RESPONSIBLE FOR THE UNAUTHORIZED ACCESS TO OR ALTERATION OF THE SOFTWARE, ANY EXPENSES, DAMAGES, OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, SECURITY BREACH, COMMUNICATION LINE FAILURE, THEFT, OR DESTRUCTION, WHETHER FOR BREACH OF CONTRACT, STRICT LIABILITY, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FOR ANY OTHER CAUSE OF ACTION.
6.4 If the Software does not comply with the representation and warranty of K&C contained in Section 6.1 after notice by Licensee of such non-compliance, which notice shall be provided immediately upon Licensee’s becoming aware of such non-compliance and shall be specifically identified as a non-compliance notice under this Section 6.4, K&C shall indemnify, defend, and hold Licensee harmless from and against any claims, liabilities, damages, costs, or expenses arising from such non-compliance. Licensee shall cooperate with K&C in defense of such non-compliance. K&C may modify the Software to make it non-infringing and Licensee agrees to accept such modifications as long as the functionality of the Software is not substantially and materially diminished; or if, in the reasonable judgement of K&C, the Software cannot be so modified, K&C may terminate this Agreement. This Section 6.4 contains the entire liability and obligation of K&C and the exclusive remedy of Licensee with respect to any claim relating to non-compliance with the representation and warranty of K&C contained in Section 6.1.
7. INDEMNITY BY LICENSEE
Licensee shall indemnify, defend, and hold harmless K&C, its shareholders, employees, agents, officers, and directors and their respective heirs, executors, legatees, successors and assigns from and against any and all losses, liabilities, penalties, fines, claims, suits, expenses (including K&C’s reasonable attorneys’ fees incurred in the defense of any action) or other damages whatsoever resulting from or arising out of (i) any claim by Licensee or by any third party claiming by or through Licensee that the Software is not merchantable or fit for the Permitted Use or contains inaccuracies, errors, bugs, interruptions, or other limitations or is otherwise defective or determined to be the cause of economic loss, injury or death to persons, or damage to property; (ii) any breach by Licensee of any of its obligations under this Agreement; (iii) Licensee’s negligence or willful misconduct in utilizing the Software; or (iv) any improvement, enhancement, or other modification uploaded to the Site by Licensee, or any use of the Software with other software or materials not licensed to Licensee by or not otherwise approved by K&C, infringes the patent, copyright, trade secret, or other proprietary right of any third party.
8. THIRD PARTY INFRINGEMENT
K&C shall be solely responsible for the prosecution of all actions in the nature of unfair competition or proprietary rights infringement with respect to the Software or any portion of the K&C Confidential Information. Licensee shall immediately advise K&C if Licensee becomes aware of any such unfair competition or infringement. Licensee shall cooperate and assist in the prosecution of any such action prosecuted by K&C, without making any charge therefor in any such action. Licensee further agrees that, if K&C elects not to prosecute, K&C shall have no liability to Licensee with respect to such election, notwithstanding that Licensee may have advised K&C of damages caused to Licensee thereby; and Licensee shall not institute legal proceedings against third parties respecting such unfair competition or infringement.
9. AUDIT
K&C shall have the right, at its own expense and on not less than 5 days’ prior notice to Licensee, to audit, or cause a third party to audit on its behalf, compliance by Licensee with Licensee’s obligations under this Agreement. K&C or such third party shall conduct such audit during regular business hours at Licensee’s place or places of business and shall not unreasonably interfere with Licensee’s business activities.
10. EXPORT REGULATIONS
Licensee acknowledges that K&C is subject to regulation by agencies of the U.S. Government, including the U.S. Departments of Commerce and State, which regulate export, re-export, or diversion of certain technical products such as the Software and the application of the Software for the benefit of non-U.S. persons. Licensee warrants that it will comply in all respects with all such export and re-export restrictions.
11. SUCCESSORS AND ASSIGNS.
This Agreement may not be assigned by either party without the written consent of the other. This Agreement shall inure to the benefit of and be binding on the permitted successors and assigns of the parties.
12. NOTICES.
12.1 All notices, requests, consents, and other communications required or permitted to be given hereunder shall be in writing and shall be personally delivered or sent by overnight package delivery service, by electronic mail (if receipt thereof is confirmed by return electronic mail), or registered or certified mail, postage prepaid, as follows (or to such other address as either party shall designate by notice in writing to the other in accordance herewith):
12.1.1 If to K&C, to it at:
Suite 1500
500 North Brand Boulevard
Glendale, California 91203
Attention: Zach Smith, Chief Operating Officer (COO)
Email: smith@kcse.com
12.1.2 If to Licensee, to it at the address specified in this submission.
12.2 Notices shall be deemed delivered upon personal delivery, the date following the date sent by overnight package delivery service, the date of receipt of confirmation of delivery by electronic delivery, or 5 days following deposit in the mail, as the case may be.
13. ENTIRE AGREEMENT.
This Agreement represents the final, complete, and exclusive agreement and understanding between K&C and Licensee concerning the subject matter hereof and supersedes and replaces any and all prior or contemporaneous negotiations, agreements, and understandings concerning the same.
14. NO ORAL MODIFICATION, WAIVER, OR DISCHARGE.
No provision of this Agreement may be modified, waived, or discharged unless agreed to in writing by both parties hereto. The failure of a party to insist upon strict adherence to any term, condition, or other provision of this Agreement shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term, condition or other provision of this Agreement.
15. GOVERNING LAW; JURISDICTION.
This Agreement shall be governed by, and construed and enforced in accordance with, the internal substantive and procedural laws of the State of California applicable to agreements made and to be performed entirely within such state without regard to its conflict of laws provisions. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the County of Los Angeles, State of California for the adjudication of any dispute under this Agreement or in connection therewith, and hereby irrevocably waives any objection that such suit, action, or proceeding is brought in an inconvenient forum or that the venue of such suit, action, or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.
16. SEVERABILITY.
If any provision of this Agreement shall for any reason be held invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions hereof shall not be affected or impaired thereby and such remaining provisions of this Agreement shall remain in full force and effect. Moreover, if any one or more of the provisions of this Agreement shall be held to be excessively broad as to duration, activity, or subject, such provision shall be construed by limiting and reducing them so as to be enforceable to the maximum extent allowable by applicable law.
17. EXECUTION IN COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same instrument. Photocopied, telecopied, or electronically transmitted or reproduced signatures on this Agreement or any notice delivered hereunder shall be deemed, and shall have the same force and effect as, original signatures in the absence of fraud.
18. TITLES AND HEADINGS.
Titles and headings to sections herein are for purposes of reference only, and shall in no way limit, define or otherwise affect the meaning or interpretation of any of the provisions of this Agreement.
19. NO THIRD PARTY BENEFICIARIES
Except to the extent provided in Section 7, this Agreement is intended only for the benefit of the parties hereto and their respective permitted successors and assigns and not for the benefit of any third party (including, without limitation, any client or customer, or prospective client or customer, of Licensee), and shall not be deemed to give any rights or remedies to any such other party whether referenced herein or not.
20. INTERPRETATION, PRONOUNS, PLURALS, CERTAIN WORDS.
All pronouns, defined terms, and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person, firm, or corporation may require. References in this Agreement to any Section refer to Sections of this Agreement and include references to each subsection of such Section. Neither this Agreement nor any provision hereof shall be construed or interpreted against any party on the basis that such party or such party's counsel drafted this Agreement or such provision. The words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole, and not to any particular section, subsection, or clause contained in this Agreement; the words "include" and "in particular" and all of their variants shall be deemed to be followed by the words "but without limitation"; the word "or" shall, unless the context otherwise requires, be interpreted inclusively, not exclusively; and the word “day” means a calendar day.
21. INJUNCTIVE RELIEF
Licensee acknowledges and agrees that, in the event of any breach by Licensee of Sections 3 or 4 of this Agreement, K&C would be irreparably and immediately harmed and could not be made whole by monetary damages. Accordingly, in addition to any other remedy that K&C may be entitled to at law or in equity, K&C shall be entitled to seek an injunction to prevent breaches or threatened breaches and/or to compel specific performance, and Licensee shall waive any requirement for the securing or posting of any bond in connection with any such remedy.