End-User Software License Agreement (EULA)
IMPORTANT! The software you seek to install or previously have installed from Optum Computational Engineering (the “Software”) is licensed only on the condition that you agree to the terms and conditions set forth below. PLEASE READ THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT CAREFULLY.
IF YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, PLEASE SELECT THE BOX ON THIS PAGE LABELED “I ACCEPT THE AGREEMENT,” AT WHICH TIME THE SOFTWARE WILL BE INSTALLED ON YOUR COMPUTER.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE SELECT THE BOX ON THIS PAGE LABELED “I DO NOT ACCEPT THE AGREEMENT” WHICH WILL TERMINATE THE SOFTWARE INSTALLATION.
IF THE SOFTWARE IS ALREADY INSTALLED AND LICENSED, YOU HAVE ALREADY AGREED TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR SOMEONE HAS DONE SO ON YOUR BEHALF.
The Software that you are about to access is a design and analysis software package by Optum Computational Engineering., a Danish corporation (“Vendor”). This End-User Software License Agreement (this “Agreement”) sets forth the terms under which you, as an individual or entity authorized by Vendor (or, for entities, any employee or agent you authorize to use the Software) (“you”), may use the Software.
Access to and use of the Software is by permission of Vendor only, and only for applicants who accept this Agreement. Vendor may grant or withhold approval in its sole discretion.
Based on the foregoing and for other good and valuable consideration, you and Vendor agree as follows:
1. INTRODUCTORY PROVISION
1.1. This End User License Agreement (hereinafter the “EULA”) sets out terms and conditions upon which Optum Computational Engineering ApS (defined below) is willing to license the Software (defined below) to You as the end-user (defined below), regardless of whether the Software is provided, or made available, to You by Optum Computational Engineering ApS or an Authorized Distributor (defined below).
1.2. The terms of this EULA may be modified by (i) the Quote (defined below), and/or (ii) Your Delivery Agreement (defined below), if any. In the event of any conflict, ambiguity, or inconsistency between the terms of Your Delivery Agreement (if any), and/or the Quote and the terms specified in this document, the terms of Your Delivery Agreement and the Quote shall prevail over the terms specified in this document. Unless expressly stated otherwise, any reference to this EULA shall also refer to the Quote and/or Your Delivery Agreement (if any).
1.3. The terms of this EULA are legally binding upon You irrespective of the method of delivery or receipt of the Software and irrespective of whether the Software was provided, or made available, to You directly by Optum Computational Engineering ApS or by an Authorized Distributor.
2. ACCEPTANCE OF THE EULA
2.1. This EULA is accepted in particular by (i) accepting the Quote, (ii) entering into a Delivery Agreement, or (iii) by clicking the “I ACCEPT” button during the installation of the Software. By accepting this EULA, You also:
(a) unconditionally accept and agree with the terms of this EULA;
(b) acknowledge that You have read this EULA; and
(c) confirm that You are an authorized user of the Software and that Your installation of the Software is legal and permitted under this EULA.
2.2. You are not entitled to install or use the Software without acceptance of this EULA.
3. DEFINITIONS
- Unless otherwise explicitly stated herein, the following terms shall have the following meaning in this EULA:
3.1. Affiliate means with respect to any Party, person, or entity, any other person or entity, which: (i) directly or indirectly controls, (ii) is directly or indirectly controlled by, or (iii) is under common control with, such Party. A person or entity shall be regarded as in control of another person or entity if it owns, or directly or indirectly controls, more than forty percent (40%) of the voting stock or other ownership interest of the other person or entity, or if it directly or indirectly possesses the power to direct or cause the direction;
3.2. Authorized Affiliate means any Affiliate that is authorized to use the Software on the basis of Your License according to the terms of the respective License;
3.3. Authorized Distributor means any Affiliate of Optum Computational Engineering ApS or an authorized reseller of Optum Computational Engineering ApS;
3.4. Confidential Information means the Software, Documentation, and any information and material in whatever form concerning operation, personnel, and business dealings of either Optum Computational Engineering ApS or You that either: (i) is marked as confidential, or that (ii) should reasonably be understood to be confidential by its nature or circumstances in which the information or material is disclosed;
3.5. Data Protection Legislation means (i) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (hereinafter the “GDPR”), (ii) any national implementing laws, regulations, and secondary legislation, as amended or updated from time to time, (iii) any successor legislation to the GDPR and the implementing laws, regulations and secondary legislation; and (iv) all applicable data protection legislation of the United States of America and any individual state either existing or adopted during the License Term;
3.6. Delivery Agreement means an agreement on Software delivery between You and Optum Computational Engineering ApS or You and an Authorized Distributor;
3.7. Documentation means user documentation relating to the Software, as amended from time to time. Knowledge Base is not part of the Documentation;
3.8. Error means a defect or fault in the Software which prevents the Software from operating substantially in accordance with the Documentation;
3.9. EULA means this End-User License Agreement for Software;
3.10. Optum Computational Engineering ApS means the entity of the Optum Computational Engineering ApS group specified in Section 20.1 of this EULA;
3.11. Optum Computational Engineering ApS Campus means an online comprehensive course intended for structural engineers and connection designers on the effective use of the Software offered by Optum Computational Engineering ApS that is not included in the License, the Maintenance and/or the Knowledge Base and is subject to a separate contract and fees (the course is currently available at: [link]);
3.12. Helpdesk Services means the services of technical support regarding installation and use of the Software provided either directly by Optum Computational Engineering ApS, or by any Authorized Distributor;
3.13. Knowledge Base means online information and materials relating to the Software and/or structural analysis such as white papers, articles, and/or videos, which are published on the Optum Computational Engineering ApS website and made available to You using the web interface on the Optum Computational Engineering ApS website as part of Maintenance; the Knowledge Base does not include the Optum Computational Engineering ApS Campus and/or any other materials, information, or any sections of the Optum Computational Engineering ApS website that, according to the web interface, are subject to separate contracts and fees;
3.14. License means the license to Software and Documentation granted to You in accordance with this EULA, the Quote (if any), and/or Your Delivery Agreement (if any);
3.15. License Fee means the fees for the License specified in the Quote and/or Your Delivery Agreement (if any), and payable by You in consideration of the grant of License and, if Maintenance is included in the License, also in consideration for the provision of Maintenance;
3.16. License Category means any of the categories of the License, as further defined in Article 5 of this EULA;
3.17. License Holder means the category of individual and/or entity eligible for the grant of the respective License Category as further described in Article 5 of this EULA;
3.18. License Parameters mean the terms of the License, which are described for each License Category in Sections 5.2 to 5.7 of this EULA, as supplemented or altered in the Quote or Your Delivery Agreement (if any);
3.19. License Term means the term of the License, whereas such License Term may be either for a definite period, perpetual (perpetual Licenses), or limited for the Subscription Period (subscription-based Licenses);
3.20. Maintenance means the following services: (i) Minor Releases, (ii) Main Releases, (iii) Helpdesk Services and (iv) access to Knowledge Base; in case of subscription-based Licenses Maintenance is always included in the License;
3.21. Maintenance Fee means the fee for Maintenance, the Maintenance Fee is included in the License Fee for subscription-based Licenses and is charged separately in the case of perpetual Licenses;
3.22. Maintenance Term means the term during which Maintenance is provided to You and which is further defined in Article 8 of this EULA;
3.23. Main Release means any major version of the Software that is made generally commercially available by Optum Computational Engineering ApS from time to time and that has been assigned by Optum Computational Engineering ApS a version number (v + number) indicating a new Main Release;
3.24. Minor Release means a release that updates the Software, which may incorporate corrections of Errors, or provide functional and performance improvements but is not assigned version numbers. Under no circumstances does a Minor Release mean a Main Release;
3.25. Party means either You, or Optum Computational Engineering ApS, or the Authorized Distributor, as applicable;
3.26. Permitted Use means the manner in which You are authorized to use the Software based on the License;
3.27. Personal Data means any personal data as defined by Data Protection Legislation concerning either You or Your users or other physical persons, if applicable, that are processed by Optum Computational Engineering ApS in connection with this EULA and/or Your use of the Software;
3.28. Professional Consultants means any professional providers of advisory, supervisory, and other specialized services that receive access to the Confidential Information for the purpose of their activities for either Party and that are bound by the law and/or professional ethics to maintain confidentiality including, without limitation, legal and tax advisors and auditors;
3.29. Quote means the quote for the delivery of the License(s) or Maintenance related to the Software submitted to You by Optum Computational Engineering ApS or Authorized Distributor and accepted by You;
3.30. Seats mean the maximum permitted number of Users concurrently using the Software;
3.31. Software means the software product(s) of Optum Computational Engineering ApS specified in the Quote or a Delivery Agreement (if any), including any and all Minor Releases and Main Releases;
3.32. Subscription Fee means a regular License Fee for a subscription-based License paid for each Subscription Period in one (1) installment due on the first (1st) day of such Subscription Period, or as otherwise specified in the Quote and/or in a Delivery Agreement (if any);
3.33. Subscription Period means the term of validity of a subscription-based License. The Subscription Period automatically renews for successive consecutive periods unless terminated in accordance with Section 7.1 of this EULA;
3.34. User(s) means those individuals identified by the License Parameters as authorized to use the License and may include You, an individual employed by You or by an Authorized Affiliate, or Your students, as applicable, who have been provided a valid license key in order to use the Software. For the purposes of this definition and Article 5, “employees” shall be deemed to include self-employed contractors using the Software on behalf of You pursuant to an agreement with You or an Authorized Affiliate, as applicable;
3.35. User Credentials means the following credentials enabling access to the Software: (i) username and (ii) password;
3.36. User per Seat means the maximum permitted number of individual Users assigned to each Seat included in Your License at any given time. For clarification: Only Users assigned to a Seat are entitled to access the Software using the Seat in question. You are entitled to change the Users assigned to a Seat in the Software settings at any time, but You may not assign Users in excess of the applicable Users per Seat limit.
3.37. You means the entity acquiring or accepting the License, being you as an individual or the business entity/organization you represent or any permitted assignee or successor in title.
4. DELIVERY TERMS
4.1. You acquire Your License(s) and/or Maintenance by concluding this EULA based on, in particular, the Quote and/or Delivery Agreement.
4.2. The Software and/or Maintenance will be delivered or made available, to You in accordance with Your Delivery Agreement (if any), or as otherwise identified by Optum Computational Engineering ApS or the Authorized Distributor, as applicable. If Your License is a Trial License, the Software will be made available to You upon acceptance of this EULA.
4.3. User access to the Software will be activated via User Credentials delivered to You or Your Users by Optum Computational Engineering ApS. User Credentials are usually provided by e-mail via Your contact e-mail address. By accepting this EULA, You hereby agree to receive the User Credentials by e-mail.
4.4. The Software may be run only on such hardware which meets the technical parameters described in the Documentation.
5. Basic license terms
5.1. The License(s) authorize(s) You to use the Software in accordance with Your License Parameters and with the terms and conditions of this EULA. Your License Parameters are defined by Your License Category (see Sections 5.2 to 5.7 of this EULA) and may be further modified by the content of the Quote and/or Your Delivery Agreement (if any).
5.2. Commercial Standard License
Permitted Use: Commercial purposes
License Holder: Individuals or business entities and organizations
Authorized Affiliate: Not allowed
Territorial Scope: Country of Your billing address (Domestic), or in additional and/or different countries if expressly specified in the Quote and/or Your Delivery Agreement (if any)
License Term: Subscription Period or perpetual (perpetual licenses) (Specified in the Quote or Your Delivery Agreement, if any)
Users: You and/or Your employees
Users per Seat: Five (5) individual Users
Maintenance: Subscription-based Licenses: Maintenance is included in the License and the License Fees
Perpetual Licenses: Maintenance is provided subject to payment of a Maintenance Fee
Seats: Specified in the Quote or Your Delivery Agreement (if any)
5.3. Commercial Enterprise License
Permitted Use: Commercial purposes
License Holder: Individuals or business entities and organizations
Authorized Affiliate: Allowed
Territorial scope: Worldwide (International)
License Term: Subscription Period or perpetual (perpetual licenses) (Specified in the Quote or Your Delivery Agreement, if any)
Users: You, and/or Your employees, and/or the employees of Your Authorized Affiliates, as applicable (or as specified in the Quote or Your Delivery Agreement, if any)
Maintenance: Subscription-based Licenses: Maintenance is included in the License and the License Fees
Perpetual Licenses: Maintenance is provided subject to payment of a Maintenance Fee
Seats: Specified in the Quote or Your Delivery Agreement (if any)
5.4. Educational License
Permitted Use: Self-education of the License Holder
License Holder: Students, teachers, and academics
Authorized Affiliate: Not allowed
Territorial scope: Country of Your residence
License Term: Subscription Period
Users: You
Users per Seat: One (1) individual User (i.e., You)
Maintenance: Included in the License
Seats: One (1)
5.5. Trial License
Permitted Use: Technical or commercial evaluation of the Software solely for Your internal purposes (No commercial use of the software allowed)
License Holder: No limitation
Authorized Affiliate: Not allowed
Territorial scope: Worldwide
License Term: Fourteen (14) calendar days
Users: You
Users per Seat: One (1) individual User (i.e., You)
Maintenance: Included in the License
Seats: One (1)
6. FURTHER LICENSE TERMS
6.1. Subject to the timely payment of the License Fee, as applicable, and subject to compliance with the terms and conditions of this EULA, the Quote and/or Your Delivery Agreement (if any), Optum Computational Engineering ApS and/or the Authorized Distributor hereby grants You a non-exclusive, non-transferable, and non-sublicensable right to download, install and use the Software during the License Term for the Permitted Use and with the number of Users corresponding to the agreed and purchased number of Seats, and the applicable Users per Seat amount.
6.2. You shall not, and You shall ensure that Your Authorized Affiliates, Your Users, and any person to whom You have granted access to do not:
(a) use the Software, the Documentation, and/or the Knowledge Base except as set forth in Section 6.1 including, without limitation, use the Software or Documentation without a License, in excess of Your number of Seats or the applicable Users per Seat amount, and/or in breach of the other applicable License Parameters;
(b) allow any copies of the Software, and/or any materials included in the Knowledge Base to leave Your or Your Authorized Affiliate’s possession or control;
(c) copy the whole or any part of the Software; this shall not apply for the reasonable number of backup copies for backup purposes only;
(d) modify, enhance, combine, or merge the whole or any part of the Software with any other software;
(e) create derivative works or improvements of, whether or not patentable, the whole or any part of the Software;
(f) assign, transfer (except to Authorized Affiliates where permitted by applicable License Parameters), distribute, sell, lease, lend, rent, sub-license, charge, publish, or otherwise deal in or encumber the Software, nor make the Software available to any third party, nor use the Software to provide software-as-a-service, service bureau or similar services to any third party;
(g) adapt, translate, reverse engineer, decode, decompile or disassemble the whole or any part of the Software, to derive or to access the source code of the Software;
(h) enable the use of the Software by duplication through virtualization or comparable technology in a manner that would exceed the number of Seats purchased by You, and/or the applicable Users per Seat amount;
(i) use the Software to develop other software;
(j) remove, delete, alter, or obscure any of the intellectual property markings in the Software or its outputs or the Documentation, nor try to remove or bypass any of the intellectual property protection mechanisms in the Software or its outputs; and
(k) use the Software or Documentation in violation of any law, regulation, or rule.
6.3. Unless otherwise agreed, Your use of the Software shall be limited exclusively to the processes, functions, and purposes designated by Optum Computational Engineering ApS and specified in the Documentation.
6.4. You shall undertake any and all reasonable measures necessary to ensure that Your Authorized Affiliates, Your Users including, without limitation, Your employees and contractors, and any person to whom You have granted access, complies with the obligations under this Article. In this respect, You shall be obliged especially to (i) establish the necessary contractual obligations of such persons, and monitor their compliance with such obligations, (ii) adopt adequate organizational measures to prevent breaches including, without limitation, to provide access to the Software on a need-to-use basis only, and (iii) adopt adequate technical measures in particular to monitor the use of the Software and to protect the passwords and access credentials.
6.5. You acknowledge that the Software is provided under license, and not sold, to You. You do not acquire any ownership interest in the Software under this EULA, or any other rights to the Software other than to use the Software in accordance with the license granted under this EULA, subject to all terms, conditions, and restrictions. Optum Computational Engineering ApS reserves and shall retain its entire right, title, and interest in and to the Software and all intellectual property rights arising out of or relating to the Software, subject to the license expressly granted to You in this EULA. You shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.
7. SUBSCRIPTION PERIOD AUTOMATIC RENEWAL
7.1. For subscription-based Licenses, the Subscription Period shall automatically renew for subsequent periods, each corresponding to the Subscription Period identified in the Quote or Your Delivery Agreement (if any), unless either Party gives the other Party written notice of termination at least thirty (30) days prior to the expiration of the then-current Subscription Period.
8. Maintenance
8.1. Maintenance is included in subscription-based License(s) and, in such cases, the Maintenance Term shall coincide with the Subscription Period, including each renewal of the Subscription Period under Section 7.1, until expiry or termination of the subscription-based License.
8.2. Maintenance is not included in Licenses with a perpetual License Term (perpetual licenses). If Your License has a perpetual License Term (perpetual licenses), Maintenance must be ordered separately, and is subject to Your Delivery Agreement (if any), a separate Quote, or Your order in any other form and to the payment of separate Maintenance Fee. The Maintenance Period shall automatically renew for subsequent periods, each corresponding to the Maintenance Period as per Your Delivery Agreement (if any), the Quote, or your initial Order, unless either Party gives the other Party written notice of termination at least thirty (30) days prior to the expiration of the then-current Maintenance Term. Alternatively, and if set forth in the Delivery Agreement, the initial Maintenance Term shall expire at the end of the calendar year during which the Delivery Agreement ordering Maintenance was entered into, and thereafter the Maintenance Term shall automatically renew for subsequent periods of a calendar year unless either Party gives the other Party written notice of termination at least thirty (30) days prior to the expiration of the then-current Maintenance Term.
8.3. Maintenance requires a License to the latest version of the Software. If You do not have active Maintenance when the new Main Release is issued and, thus, you do not acquire a License to the latest version of the Software, You need to purchase a Software upgrade before the Maintenance can be reactivated.
8.4. Maintenance is included in Educational Licenses and Trial License.
9. PAYMENT TERMS
9.1. You shall pay the License Fees and Maintenance Fees, if applicable, according to the terms set forth in the Quote and/or Your Delivery Agreement (if any).
10. Inflation adjustment
10.1. Subscription Fees and Maintenance Fees shall be subject to the inflation adjustment rules set forth in this Article 10.
11.VIOLATION OF THE EULA
11.1. You shall promptly notify Optum Computational Engineering ApS and/or the Authorized Distributor, as applicable, if You become aware of any: (i) violation of this EULA, (ii) infringement (whether actual or alleged) of Optum Computational Engineering ApS‘s intellectual property rights in the Software, or (iii) any unauthorized use of the Software, and provide reasonable assistance to Optum Computational Engineering ApS and/or the Authorized Distributor, as applicable, in connection with any suit or proceeding relating to such events.
11.2. Should You fail to pay the whole License Fee within the respective payment period, and remain in arrears with the payment even after the lapse of thirty (30) days from said period and/or should You violate any other obligation under this EULA, the License, any other Licenses granted to You by Optum Computational Engineering ApS, Authorized Distributors and/or their Affiliates, and this EULA and any other EULAs concluded between You and Optum Computational Engineering ApS shall be terminated immediately. In such case, Optum Computational Engineering ApS shall not be obliged to return or refund any License Fees, Maintenance Fees, or any part thereof. Optum Computational Engineering ApS shall also be entitled to deactivate or block Your use of the Software and/or block access to any projects created using Optum Computational Engineering ApS without prior notice. The right of Optum Computational Engineering ApS, Authorized Distributors, and/or their Affiliates to claim all due payments, damages and to raise any other remedies under the applicable law shall remain unaffected.
11.3. Should You breach any obligations under Sections 6.2 to 6.4 hereof, and, in particular, should You use the Software without a valid License and/or in breach of Your License Parameters, or should You fail to ensure that Your Users, employees, and other persons specified in Section 6.4 hereof do not use the Software without a valid License and/or in breach of Your License Parameters, Optum Computational Engineering ApS shall be entitled to claim damages and any other claims related thereto in accordance with the applicable law. In addition, Optum Computational Engineering ApS shall be entitled to claim a surcharge to Your License Fee for each individual breach. The surcharge shall correspond to the then current yearly License Fee for a Commercial Enterprise License applicable in the state where Your seat or, if applicable, Your place of residence is located, with respect to any Software used in this manner and any unique IP address used to access the Software.
11.4. Should You fail to pay the Maintenance Fee, if applicable, Optum Computational Engineering ApS and/or the Authorized Distributor, as applicable, shall be entitled immediately and without prior notice to discontinue the provision of Maintenance. In such a case, Optum Computational Engineering ApS shall not be obliged to return or refund any paid Maintenance Fees, License Fees, or any parts thereof. The right of Optum Computational Engineering ApS, Authorized Distributor, and/or their Affiliates to claim all due payments, damages, and to raise any other remedies under the applicable law shall remain unaffected.
11.5. By accepting this EULA, You undertake to ensure that under Your License the Software is used in accordance with the terms of this EULA. Neither Optum Computational Engineering ApS, nor the Authorized Distributor (if applicable) shall be liable for any damages incurred by You and/or any third party in case of any breach of this EULA. Furthermore, in the event that any breach of this EULA (in particular use of the Software in violation of the License) results in any claim raised by any third party towards Optum Computational Engineering ApS and/or the Authorized Distributor, as applicable, including, without limitation, any claims arising from an infringement of intellectual property, You shall be obliged to fully indemnify Optum Computational Engineering ApS and hold Optum Computational Engineering ApS harmless by: (i) directly satisfying the claim of the third party, and/or (ii) defending Optum Computational Engineering ApS against the third party claim, and/or (iii) providing Optum Computational Engineering ApS the assistance necessary for its defense against the third-party claim and compensating Optum Computational Engineering ApS for the reasonable costs of such defense, and/or (iv) compensating Optum Computational Engineering ApS for all damages, losses, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, expenses, or costs of whatever kind, including attorneys’ fees, arising from or relating to Your use or misuse of the Software or Your breach of obligations of this EULA. Subject to a good-faith deliberation of its expediency and after consulting with You, Optum Computational Engineering ApS shall be entitled to choose which indemnification claim will be provided.
12. LIMITED Warrenty
12.1. Optum Computational Engineering ApS warrants that the Software will operate in substantial conformity with its applicable Documentation (the “Warranty”) for a period of six (6) months from Your acceptance of this EULA (the “Warranty Period”). Your sole and exclusive remedy and the sole liability of Optum Computational Engineering ApS, its Authorized Distributors, their Affiliates, and their suppliers for any breach of the Warranty shall be, at Optum Computational Engineering ApS‘s option and expense, the following: (i) Optum Computational Engineering ApS will repair the Error by providing You with instructions to bypass the Error or by issuing a Main Release or Minor Release, (ii) Optum Computational Engineering ApS will replace the Software, or (iii) Optum Computational Engineering ApS will terminate the License and refund that portion of the License Fees or Maintenance Fees paid corresponding to the period from the notification of the Error until the end of the Warranty Period. The aforesaid limited Warranty is provided to You on condition that You notify Optum Computational Engineering ApS in writing of the Error during the Warranty Period and upon request provide the proof of purchase of relevant License from an authorized source (i.e. from Optum Computational Engineering ApS or an Authorized Distributor). The foregoing limited Warranty shall not apply to, and Optum Computational Engineering ApS shall not be liable for any errors and/or other shortcomings caused by or resulting from: (i) hardware on which the Software is run, (ii) non-compliance with use requirements set forth in the Documentation or other incorrect use of the Software, (iii) any modification of Software by You or any third party, even in the case that such adjustment is approved by Optum Computational Engineering ApS, and (iv) any other acts or omissions which may be attributed to You or any third party. Optum Computational Engineering ApS shall not be liable for any such errors or shortcomings. Additionally, the foregoing limited Warranty shall not apply to any License provided on a no-charge basis.
12.2. In the event that Your use of the Software in accordance with this EULA, and in particular with the Permitted Use, infringes or is alleged to infringe a third party’s intellectual property rights, Optum Computational Engineering ApS may, at its sole option and expense, either (i) procure for You the right to continue using the Software; (ii) replace the infringing Software or part thereof with functionally equivalent software; or (iii) terminate this EULA and the License, and refund to You: (a) in the case of perpetual Licenses the portion of the License Fee corresponding to the remainder of the Warranty Period (if any), and the portion of the Maintenance Fee corresponding to the remainder of the Maintenance Term, and (b) in the case of subscription-based Licenses the portion of the Subscription Fee corresponding to the remainder of the Subscription Period. This Section 12.2 sets forth Optum Computational Engineering ApS‘s sole liability and Your sole and exclusive remedy in respect of any actual or alleged infringement of third-party intellectual property rights arising out of any use of the Software.
12.3. The Warranty according to section 12.1 above or any other warranty in any form shall not apply to the Maintenance or the outputs of the Maintenance (which are considered as tangible or intangible things) including, without limitation, the Main Releases, and Minor Releases, patches or other software and documentation. Should any warranty or liability for defects in any form apply to the Maintenance or the above-specified outputs in accordance with the applicable law, business practice, and/or due to any other reason whatsoever, such warranty or liability shall be excluded by this EULA to the widest extent permitted by the applicable law.
12.4. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12.1 HEREOF, THE SOFTWARE AND THE MAINTENANCE ARE PROVIDED “AS IS” AND WITH NO FURTHER WARRANTY AND WITH EXCLUSIONS OF THE STATUTORY LIABILITY FOR DEFECTS TO THE WIDEST EXTENT PERMITTED BY THE APPLICABLE LAW. NEITHER OPTUM COMPUTATIONAL ENGINEERING APS NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES IN RELATION TO THE SOFTWARE OR THE DOCUMENTATION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT SATISFACTORY QUALITY, NON-INTERFERENCE, THE ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE. IN PARTICULAR, OPTUM COMPUTATIONAL ENGINEERING APS DOES NOT WARRANT THAT THE SOFTWARE WILL (I) BE SUITABLE FOR THE USE INTENDED BY YOU, (II) OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, OR THAT OPTUM COMPUTATIONAL ENGINEERING APS, AUTHORIZED DISTRIBUTOR, OR ANY THIRD PARTY WILL CORRECT ANY ERRORS, OR RESOLVE ANY SUPPORT REQUESTS RELATING TO THE SOFTWARE, (III) INTERACT WITH THE SOFTWARE PRODUCTS OTHER THAN THOSE SPECIFIED IN THE DOCUMENTATION, OR (IV) OPERATE WITH HARDWARE OR HARDWARE CONFIGURATIONS OTHER THAN MEETING THE MINIMUM REQUIREMENTS SET FORTH IN THE DOCUMENTATION. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF THESE RIGHTS, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY APPLICABLE LAW.
13. LIMITATION OF LIABILITY
13.1. LIMITATION OF LIABILITY: IN RELATION TO THIS EULA AND THE PERFORMANCE OF THIS EULA, NEITHER OPTUM COMPUTATIONAL ENGINEERING APS, ITS AFFILIATES, NOR ITS SUPPLIERS SHALL BE LIABLE FOR LOSS OF REVENUE, LOSS OF PROFIT, LOSS OF PRODUCTION, INTERRUPTION OF BUSINESS, COSTS OF DELAY, LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
13.2. LIMITATION OF DAMAGES: THE MAXIMUM MONETARY LIABILITY FOR DAMAGES OF OPTUM COMPUTATIONAL ENGINEERING APS UNDER THIS EULA OR IN CONNECTION HEREWITH SHALL BE LIMITED TO, AND SHALL NOT EXCEED, AN AMOUNT CORRESPONDING TO THE AGGREGATE AMOUNT OF THE LICENSE FEES AND MAINTENANCE FEES ACTUALLY PAID BY YOU FOR THE RELEVANT SOFTWARE AND MAINTENANCE.
13.3. This Article 13 shall survive the expiry or termination of this EULA for any reason.
14. PERSONAL DATA PROCESSING
14.1. Optum Computational Engineering ApS’s privacy notice relating to the processing of Personal Data is published at [link to Optum Computational Engineering ApS’s privacy policy].
14.2. Where Your consent with the processing of Personal Data is required by Data Protection Legislation, You shall be asked for such consent separately. This EULA itself and its acceptance by You does not constitute or replace Your consent with the processing of any Personal Data.
15. AUDIT AND DATA USAGE RIGHTS
15.1. Optum Computational Engineering ApS and its Authorized Distributors may at any time conduct or appoint an external auditor to audit Your compliance with the terms of this EULA (the “Audit”). Optum Computational Engineering ApS shall provide no less than five (5) days’ advance notice of such Audit, except where the Audit is conducted electronically in accordance with Section 15.3 below.
15.2. In connection with the Audit, You shall grant Optum Computational Engineering ApS, its Authorized Distributor, or an appointed external auditor reasonable assistance and cooperation and such access to premises, systems, and materials as necessary to determine Your and the Authorized Affiliates’ compliance with this EULA.
15.3. Without prejudice to the foregoing, the Audit may also be conducted electronically utilizing the audit functionality of the Software, designed to enable Optum Computational Engineering ApS to automatically monitor that the use of the Software complies with the License and to detect and notify Optum Computational Engineering ApS of installations and use of unlicensed or otherwise infringing copies of the Software. In this respect, You acknowledge and expressly agree with the fact that the Software automatically provides Optum Computational Engineering ApS with data regarding Your installation and use of the Software.
15.4. If the Audit results determine that You or an Authorized Affiliate, as applicable, are not in compliance with the terms of the License, You shall immediately remedy such non-compliance, whether through purchase and payment for additional Licenses, or otherwise, and, without prejudice to any rights or remedies that may be available to Optum Computational Engineering ApS, compensate Optum Computational Engineering ApS for reasonable costs of the Audit. Any other rights of Optum Computational Engineering ApS related to the breach of the License terms or the Audit shall remain unaffected.
16. CONFIDENTIALITY
16.1. Each Party undertakes to the other Party to keep confidential all Confidential Information and not to disclose or otherwise make available such Confidential Information to any third party. The foregoing obligation shall not apply in respect of Confidential Information that is:
(a) already in the possession of a Party other than as a result of a breach of this Section 16.1; or
(b) in the public domain other than as a result of a breach of this Section 16.1.
16.2. Disclosing the Confidential Information to its own employees, agents, subcontractors, Authorized Affiliates, Affiliates of Optum Computational Engineering ApS, Professional Consultants, and employees of such persons or entities shall not be considered as a breach of confidentiality, provided that such Confidential Information is necessary for the performance of such persons’ obligations towards the Party and is disclosed strictly on a need-to-know basis. In such a case, the Party disclosing the Confidential Information shall ensure that the person receiving the Confidential Information undertakes to maintain confidentiality at least to the extent arising from this EULA.
16.3. Notwithstanding the foregoing, either Party shall be entitled to disclose Confidential Information, where such disclosure is required pursuant to law, decree, or order issued by competent authorities, or juridical order provided that such Party shall (i) only disclose such portion of the Confidential Information that is so required, (ii) inform the recipient of the Confidential Information that the information released is confidential and, where applicable, use its reasonable endeavors to ensure that the information is kept confidential by such recipient, and (iii) promptly notify the other Party of such release of Confidential Information, specifying the information disclosed, the recipient of the information, and the circumstances giving rise to the duty to disclose it.
16.4. Each Party undertakes to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of this article by its employees, agents, and subcontractors, and in the case of You, also those of Your Affiliates or Professional Consultants.
17. FORCE MAJEURE
17.1. Neither Party shall be liable to the other for any delay or failure to perform any obligation under this EULA (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the entry into force of this EULA and which are beyond the reasonable control of such Party and which such Party exercising reasonable care could not have anticipated and averted, such as a strike, blockade, war, act of terrorism, insurrection, riot, fire, explosion, natural disaster, failure or diminishment of power or telecommunications or data networks or services, denial-of-service attack, embargo, or refusal of a license by a government agency (an “Event of Force Majeure”). In an Event of Force Majeure, the other Party shall be notified without delay of its occurrence and estimated duration. If the performance of this EULA is delayed by more than three (3) months as a result of an Event of Force Majeure, any Party may terminate this EULA with immediate effect by notifying the other Party in writing thereof.
18. TERM AND TERMINATION
18.1. This EULA and the License granted hereunder shall remain in force until the expiry of the License Term unless terminated earlier in accordance with the terms of this EULA.
18.2. In addition to other cases mentioned in this EULA, Optum Computational Engineering ApS and/or the Authorized Distributor, as applicable, may terminate with immediate effect this EULA and the License granted hereunder if:
(a) You enter liquidation;
(b) any proceeding is commenced seeking to adjudicate You as bankrupt or insolvent, and You do not prove upon request that such proceeding is not substantiated or do not ensure the termination of such proceeding within thirty (30) days from its inception;
(c) You have a receiver appointed in respect of any of Your assets;
(d) You breach this EULA or the Delivery Agreement and such breach is (i) incapable of cure; or (ii) being capable of cure, remains uncured for thirty (30) days after Optum Computational Engineering ApS provides written notice thereof;
(e) You become generally unable to pay Your debts as and when they fall due, whereas for this purpose You shall be considered as unable to pay its debts in case You are in arrears with the performance of a contractual payment for more than three (3) months.
18.3. There shall be no refund of any License Fees, Subscription Fees, and/or Maintenance Fees, if applicable, upon or as a result of the termination of this EULA.
18.4. Termination of this EULA shall be without prejudice to a Party’s accrued rights or other remedies available to a Party. Following termination of this EULA, You shall forthwith return to Optum Computational Engineering ApS all data carriers of the Software and all copies thereof or delete all the same from such data carriers and certify such deletion to Optum Computational Engineering ApS in writing.
18.5. Termination of this EULA shall not affect the validity of any provision of this EULA that expressly or by implication is intended to continue in force after such termination.
19. LOCALIZATION, AND GOVERNING LAW
19.1. For the purpose of this EULA and Your Delivery Agreement (if any), the term Optum Computational Engineering ApS, that represents, in particular, the owner of the Software, the issuer of this EULA, and, if applicable, the party of this EULA and/or Your Delivery Agreement, regardless of localization, shall refer to
Adress: Optum Computational Engineering ApS, Hejrevej 37, 4. Floor. 2400 Copenhagen NV
Governing Law: Danish
Jurisdiction: Danish Court
19.2. This EULA, and Your Delivery Agreement (if any), including the License, and/or any other rights and obligations arising therefrom, and any rights and obligations arising from its invalidity shall be governed by and construed under the governing law specified above in Section 19.1 based on Your Localization, excluding any conflict of laws rules. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
19.3. The Authorized Distributor shall not be entitled to modify any of the terms specified in this Article. Any modifications of the terms specified in this Article in a Quote and/or in a Delivery Agreement shall be subject to prior written approval from all Optum Computational Engineering ApS entities concerned.
20. JURISDICTION
20.1. Each Party agrees to negotiate in good faith to resolve any dispute between the Parties regarding this EULA and/or the License. If the negotiations do not resolve the dispute to the reasonable satisfaction of both Parties, the Parties shall proceed according to Section 20.2 below.
20.2. Any dispute, claim, or controversy arising out of or relating in any way to this EULA, the Software, and/or the License shall be finally determined by the courts or arbitral bodies specified above in Section 19.1 based on Your Localization. In this respect and provided that such choice of jurisdiction is allowed by the applicable law, You agree that the disputes will be settled by the relevant court with the jurisdiction over the place where the seat of Optum Computational Engineering ApS is or will be located.
20.3. The Authorized Distributor shall not be entitled to modify any of the terms specified in this Article. Any modifications of the terms specified in this Article in a Quote and/or in a Delivery Agreement shall be subject to prior written approval from Optum Computational Engineering ApS.
21. EMBARGOS, SANCTIONS, AND RESTRICTIONS
21.1. The Software, the Documentation, or parts thereof may be subject to embargo, export control restrictions, or other similar restrictions. You shall comply with all applicable embargo and export control laws and regulations and in particular those of the United States and European Union, in force from time to time.
21.2. Without limiting the foregoing, by concluding this EULA: (i) You represent and warrant that You are not listed on any U.S. government/EU list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government/EU embargo or that has been designated by the U.S. government/EU as a “terrorist supporting” country, and (ii) You undertake not to (and shall not permit any of Your users to) access or use the Software in violation of any U.S./EU export embargo, prohibition or restriction.
22. CHANGES TO THIS EULA
22.1. Optum Computational Engineering ApS reserves the right to update and change its EULA terms and all changes of the Optum Computational Engineering ApS EULA terms are effective upon their publication or delivery. Any changes of the Optum Computational Engineering ApS EULA terms, except for those specified in Section 22.2 below, shall apply to this EULA upon their acceptance by You. By accepting this EULA, You hereby agree that the approval of the new EULA wording by clicking the “I ACCEPT” button or as appropriate during the installation of the Software or its updates, in particular the Main Releases, Minor Releases, and patches, shall also be considered as acceptance of the new EULA terms within the meaning of this Section. By accepting this EULA, You further acknowledge and expressly agree that the Software updates may not be provided to You without such approval of the new EULA terms.
22.2. Notwithstanding the above, Optum Computational Engineering ApS is entitled to amend the terms of this EULA or to add new provisions thereto if, according to the opinion of Optum Computational Engineering ApS, in its sole discretion, a need for such changes or amendments arises. For the avoidance of doubt, a need for changes or amendments shall arise, where it is necessary to add new rights and obligations or change or adjust the wording of certain rights and obligations of Parties in connection with: (i) a change in legislation, (ii) a change of available technologies, or (iii) a change of Optum Computational Engineering ApS’s business policy. The wording of changes and/or amendments, or the entirety of the amended EULA, shall in such case be sent to You at least two (2) months prior to the proposed effective date of such amendment. If You do not agree with the proposed amendment, You shall be entitled to terminate this EULA, effective as of the day immediately preceding the effective date of the proposed amendment, by a written notification delivered to Optum Computational Engineering ApS at the latest by the aforementioned effective date. If You do not notify Optum Computational Engineering ApS of Your termination of this EULA in accordance with the previous sentence, then the amended EULA becomes binding and effective towards Yourself as from the effective date stated in the given amendment to this EULA.
23. FINAL PROVISIONS
23.1. This EULA, the Quote and/or Your Delivery Agreement (if any), and all terms and conditions stated therein supersede all license terms included in any prior agreements between You and Optum Computational Engineering ApS pertaining to current or prior versions of the Software. Any terms or conditions in any such prior agreements, currently in force and effect, which are inconsistent with the terms or conditions of this EULA are hereby specifically agreed to be modified and conformed to this EULA.
23.2. If any provision of this EULA shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect any other provisions of this EULA and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt to substitute any invalid or unenforceable provision referred to above with a valid or enforceable provision that achieves the greatest extent possible the economic, legal, and commercial objectives of the invalid or unenforceable provision. If the Parties are unable to agree upon substitute provision(s) referred to above, and the invalid or unenforceable provision(s) deprive(s) either Party from a substantial benefit originally envisaged by it, the affected Party has the right to terminate this EULA in writing with immediate effect.
23.3. Unless expressly agreed otherwise in writing, all notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses set forth on the Delivery Agreement (or to such other address as may be designated by a Party from time to time in accordance with this Section 23.3).
23.4. You shall not assign or otherwise transfer any of Your rights, or delegate or otherwise transfer any of Your obligations or performance, under this EULA, in each case whether voluntarily, and You shall ensure that such transfer does not occur involuntarily, by operation of law, or otherwise, without Optum Computational Engineering ApS‘s prior written consent, which consent Optum Computational Engineering ApS may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving You (regardless of whether You are a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this EULA for which Optum Computational Engineering ApS‘s prior written consent is required. No delegation or other transfer will relieve You of any of Your obligations or performance under this EULA. Any purported assignment, delegation, or transfer in violation of this Section 23.4 is void. Optum Computational Engineering ApS and/or the Authorized Distributor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this EULA without Your consent. This EULA is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
23.5. Unless expressly stated or agreed otherwise, this EULA is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this EULA.
This version of End User License Agreement is valid since 4 November 2024