NPSS Academic Site License Agreement
Numerical Propulsion System Simulation
(NPSS^®) Consortium

Export Control

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I AM NOT a citizen, national, or resident of, and am not under the control of, the government of any country to which the United States has prohibited export of technical information, such as (as of 09/15/2020): Iran, North Korea, Sudan, or Syria.

I WILL NOT download or otherwise export or re-export the software, directly or indirectly, to the above-prohibited countries nor to citizens, national, or residents of those countries.

I AM NOT LISTED on the United States Department of Treasury list of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotics Traffickers, nor am I listed on the United States Department of Commerce Table of Denial Orders.

I WILL NOT use the software for, and will not allow the software to be used for, any purposes prohibited by United States law, including, without limitation, for the development, design, manufacture, or production of nuclear, chemical, or biological weapons of mass destruction.

I confirm the accuracy of the statements above*.

Terms and Conditions

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NPSS CONSORTIUM

ACADEMIC ANNUAL SITE END USER LICENSE AGREEMENT – NPSS v3.3

This is an Academic Site End User License Agreement (“Agreement” or “EULA”) between End User (a university or institution in whose name the Licensed Product has been ordered) and Southwest Research Institute® (“SwRI®”) as Administrator for and on behalf of the NPSS® Consortium that sets forth End User’s rights and obligations with respect to the Licensed Product (as defined below). By installing or using the Licensed Product, End User is agreeing to be bound by the terms of this Agreement, which includes the license and the disclaimer of warranty and limitation of liability. Do not install or use the software until you have read and accepted all of the license terms. Permission to use the software is conditional upon your agreeing to the license terms. Installation and/or use of the software by you will be deemed to be acceptance of the license terms. Acceptance will bind you to the license terms in a legally enforceable contract with SwRI. If End User does not agree to the terms of this Agreement, End User must return the all media on which the Licensed Product is contained and any copies of the Documentation to SwRI (and destroy any other copies of the Licensed Product) and contact SwRI for a full refund of any fees paid for the Licensed Product.

1. Definitions.

1.1. “End User” (“you” or “your”) shall mean any a university or institution engaged in teaching (including without limitation such university’s or institution’s current faculty, staff, and students) that properly receives a license to the Licensed Product solely for its own internal application, use, or purpose in accordance with this Agreement.

1.2. “Documentation” shall mean the end user manual providing instructions for using the Licensed Product and resolving end user difficulties, along with any other support documentation for the Licensed Product.

1.3. “Licensed Product” or “Intellectual Property (hereinafter referred to as “Licensed Product” or “IP”) shall mean, collectively, the Software, the media embodying the Software, the Engineering Components, and the Documentation.

Software” shall mean the current version of the computer software, in executable and/or binary form, entitled “Numerical Propulsion System Simulation (NPSS)” licensed by SwRI on behalf of the NPSS Licensors, to wit: NPSS v3, EMI v15, and IDE v2 to End Users.

1.5. “Engineering Components” shall mean the library of engineering component classes provided as part of the Licensed Product, in executable, binary, object, and source code form, but specifically excluding the Software which utilizes the Engineering Components. For the avoidance of doubt, in no event shall the Engineering Components be considered a component of the Software.

1.6. “Educational Use” shall mean the use of the Licensed Product by faculty, students, staff, or consultants of the End User solely for purposes of teaching, instruction, or engineering simulations, including without limitation, purposes of course related projects or for conducting projects by a student as may be required in pursuit of a degree to be granted the End User. In no event, however, shall the term Educational Use mean the use of the Licensed Product for any sponsored research of for any other purpose(s) in which the End User receives revenue of any sort (monetary or otherwise). Any and all revenue producing and/or related usage purposes, educational or otherwise, shall require the End User to obtain a commercial license to the Licensed Product.

1.7. “NPSS Licensors” shall mean NASA, SwRI, and the NPSS Consortium.

1.8. “Updates” means improvements, bug fixes, or patches, if any, to the Software that are generally made available by NPSS Licensors.

2. License.

2.1. Grant. Subject to the terms of this Agreement (including without limitation the restrictions in Section 2.2 below), End User is hereby granted a one (1) year , non-exclusive, non-transferable, non-assignable site license, to the Licensed Product delivered to End User solely to:

(a) install or use the Licensed Product at the primary campus of the university or institution specified in the Company field for use with the processing of data by End User for Educational Use;

(b) make one copy of the Licensed Product solely for backup or archival purposes; and

(c) End User may copy for its own use and at its own expense the Documentation but End User must reproduce and include the Licensed Product’s copyright notice on any copy.

2.2. Certain Restrictions on Use. Except to the extent expressly allowed in Section 2.1, End User shall not, and shall not permit any third party to:

(a) use the Licensed Product for any non-educational purpose, including without limitation any commercial or revenue producing purpose;

(b) modify, alter, reverse engineer, disassemble, decompile, or create any derivative work of any part of the Licensed Product, provided that such restriction shall not apply to the Engineering Components;

(c) permit any parent, subsidiaries, affiliated entities, or third parties to use the Licensed Product or any component thereof (other than current faculty, staff, or students of End User who use the Licensed Product for the purpose set forth in Section 2.1 above), absent a separate license from SwRI on behalf of the NPSS Licensors to such parent, subsidiary, affiliated entity or third party;

(d) rent, lease, or loan the Licensed Product;

(e) use the Licensed Product for third-party training, commercial time-sharing or service bureau use;

(f) use the Licensed Product to develop any competitive software to the Software;

(g) alter, remove, or obscure any copyright, trademark, or other proprietary notices on the Licensed Product;

(h) disassemble, decompile, or reverse engineer the Software or otherwise attempt to gain access to the source code of the Software;

(i) sell, license, sublicense, publish, display, distribute, assign, or otherwise transfer to a third party the Licensed Product, any copy thereof, or any rights thereto, in whole or in part, without SwRI’s prior written consent; or

(j) except as permitted in Section 2.1 herein, copy the Licensed Product except for installing and loading the Licensed Product into computer memory for the purpose of executing the Software program.

3. Support. For one (1) year after purchase, SwRI shall provide limited technical support via e-mail and/or telephone to respond to questions from End Users regarding the use of the Licensed Product. Support will cover general and reasonable questions regarding use of the Licensed Product, Software functionality, the Documentation, product capability, or performance limitations of the Licensed Product. SwRI shall have no obligation to provide End User any Updates but may do so from time to time at its sole and exclusive discretion. If this or any copy of the Software is an upgrade from an earlier version of the Software, it is provided to you on a license exchange basis. Upon your installation and use of this copy of the Software, you agree to voluntarily terminate any earlier EULA and you will not continue to use the earlier version of the Software or transfer it to another person or entity.

4. Intellectual Property; Confidential Information.

4.1. Proprietary Rights. NPSS Licensors own and retain all of their respective proprietary rights, including any and all patent, copyright, trade secret, trademark, and other intellectual property rights in and to the Licensed Product and any Updates or other modifications thereto whether made by End User, NPSS Licensors, or any third party. End User acknowledges that the license granted under this Agreement does not in any way provide it with any title to, or ownership of, the Licensed Product, but only a right of limited use under the terms and conditions of this Agreement. End User shall keep the Licensed Product free and clear of all claims, liens, and encumbrances. Except for the rights expressly granted herein, no other rights are granted to End User with respect to the Licensed Product, and all rights (other than those expressly granted herein), title, and interest in the Licensed Product shall at all times remain the property of NPSS Licensors regardless of the form or media in or which the original and other copies may exist. Except as otherwise permitted under this Agreement, End User shall have no rights to the source code for any part of the Licensed Product and agrees that only NPSS Licensors shall have the right to maintain, enhance, or otherwise modify the Licensed Product.

4.2. Confidential Information. End User agrees that the Licensed Product contains confidential information, including trade secrets, know-how, and other information that comprise the exclusive property of the NPSS licensors. During the period this Agreement is in effect and at all times after its termination, End User shall maintain the confidentiality of this information and shall not sell, license, sublicense, publish, display, distribute, disclose, or otherwise make available this information to any third party nor use such information except as authorized by this Agreement. End User shall not disclose any such information concerning the Licensed Product to persons who are not current faculty, staff, or students of End User without SwRI’s prior written consent. End User agrees that it will take appropriate action by instruction, agreement, or otherwise with its faculty, staff, and students to satisfy its obligations under this Agreement with respect to use, protection, and security of the NPSS Licensors’ confidential information. End User agrees to immediately notify SwRI of the unauthorized disclosure or use of the Licensed Product and to assist SwRI in remedying such unauthorized use or disclosure. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of End User’s obligations under this Section 4.2 by End User. In the event of any such breach, SwRI shall be entitled to seek equitable relief, in addition to any other rights or remedies provided by law or under this Agreement.

5. Warranty; Disclaimer of Warranties.

5.1. Limited Warranty. SwRI warrants that the media on which any copies of the Licensed Product are delivered will be free of defects in material and workmanship under normal use and service for a period of thirty (30) days from delivery.

5.2. Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1, THE LICENSED PRODUCT IS LICENSED ON AN “AS IS” BASIS AND THE NPSS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED PRODUCT, OR OTHER ACCOMPANYING MATERIAL OR SERVICE, IF ANY, INCLUDING ANY ACCOMPANYING DOCUMENTATION (INCLUDING INSTRUCTIONS FOR USE) AND SwRI SPECIFICALLY DISCLAIMS (AND END USER WAIVES) ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, REGARDLESS OF WHETHER IT IS MADE BY SwRI ON THE PRODUCT UNDER USE OR WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE. SwRI DOES NOT WARRANT THAT THE OPERATION OR OTHER USE OF THE LICENSED PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE OR WILL NOT CAUSE DAMAGE OR DISRUPTION TO END USER’S DATA, COMPUTERS, OR NETWORKS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SwRI, ITS DEALERS, DISTRIBUTORS, AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. SwRI MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SUPPORT FOR THE LICENSED PRODUCT AND THE PARTIES AGREE THAT THE NPSS LICENSORS NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THIS PRODUCT SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE SUCH PRODUCT EVEN IF THE NPSS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SwRI AND THE NPSS LICENSORS SHALL NOT BE HELD LIABLE OR RESPONSIBLE IN ANY WAY FOR SwRI’S ACTIONS OR OMISSIONS IN PROVIDING SUCH SUPPORT. THESE DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT.

6. Infringement; Compliance with Law.

6.1. Infringement Remedies. Should the Licensed Product become, or in the NPSS Licensors’ opinion be likely to become, the subject of a claim or an injunction preventing its use as contemplated herein, SwRI on behalf of the NPSS Licensors may, at its option, (1) procure for End User the right to continue using, as applicable, such Licensed Product, (2) replace or modify the Licensed Product so that it becomes non-infringing, or, if the NPSS Licensors determine, in their sole discretion, that (1) and (2) above are not commercially practical for SwRI, then (3) End User shall return the Licensed Product for a refund depreciated on a two (2) year straight line basis and any related licenses granted under Section 2 shall terminate without further liability to the NPSS Licensors. The NPSS Licensors shall have no liability or obligation to End User hereunder with respect to any infringement or claim thereof based upon alterations or enhancements of the Licensed Product not created by or for the NPSS License. This Section 6.1 states the entire liability of SwRI and the NPSS Licensors with respect to infringement of patents, copyrights, trade secrets, or other intellectual property rights by the Licensed Product or any part thereof or by its operation.

6.2. Compliance with Law. End User shall be responsible for the negligent acts or omissions of its officers, agents, directors, faculty, staff, students, and representatives with respect to its obligations under the Agreement and for compliance with any applicable law relating to its use of the Licensed Product.

7. Limitation of Liability. End User agrees that the NPSS Licensors’ liability hereunder for damages arising from performance or nonperformance of the Licensed Product and/or support thereof, and any other products or services provided hereunder, including but not limited to liability for patent and copyright infringement, shall be as set forth above in Sections 5 and 6. SwRI and the NPSS Licensors will not be liable for any lost profits, loss of data, or costs of procurement of substitute goods or services or for any claim or demand against End User by any other party. In no event will the NPSS Licensors be liable for consequential, special, indirect, or exemplary damages arising out of this Agreement, however caused and under any theory of liability (including negligence), even if advised of the possibility of such damages. End User acknowledges that the amounts payable hereunder are based in part on these limitations, and End User further agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.

8. Termination. Either party to this Agreement shall have the right to terminate this Agreement and the licenses granted herein in the event: (i) the other party fails to comply with any of the terms and conditions of this Agreement and such default has not been cured within thirty (30) days after receiving written notice of such default from the other party; or (ii) the other party terminates or suspends its business, or has wound up or liquidated, voluntarily or otherwise. The rights and obligations of the NPSS Licensors and End User in Sections 4, 5, 6, 7, 8, and 9 shall survive termination of this Agreement. Within five (5) days after termination of this Agreement, End User shall return to SwRI or destroy, at End User’s expense, the Licensed Product, including all copies thereof, and deliver to SwRI a certification, in writing signed by an officer of End User, that the Licensed Product and all copies thereof have been returned or destroyed, as requested by SwRI and their use discontinued. Nothing contained herein shall limit any other remedies that SwRI or the NPSS Licensors may have for the default of End User under this Agreement nor relieve End User of any of its obligations incurred prior to such termination.

9. Miscellaneous.

9.1. Assignment. Neither party shall assign this Agreement and its rights and obligations hereunder, in whole or in part, by operation of law or otherwise, without the written consent of the other party, except that SwRI may assign this Agreement to a (a) majority owned subsidiary or an affiliate under the same common control as SwRI, (b) a successor pursuant to a merger or a sale of all or substantially all of its assets, or (c) its successor as Administrator of the NPSS Consortium. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the parties hereto.

9.2. Entire Agreement; Severability; Waiver. This Agreement, together with all exhibits and other attachments hereto, constitutes and represents the entire agreement between the Licensor and End User, and supersedes all prior agreements and understandings, with respect to the matters covered by this Agreement. All exhibits and attachments to this Agreement are incorporated herein by reference as if set forth in full. To the extent this Agreement conflicts with the terms of any exhibit, attachment, purchase order, or invoice, the terms of this Agreement shall govern. End User agrees that it has not entered into this Agreement based on any representations other than those contained herein. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless agreed to in writing by both parties. If any of the provisions of this Agreement is held by a court of competent jurisdiction to be invalid under any applicable statute or rule of law, such provision shall, to that extent, be deemed omitted, and the remaining portions of this Agreement shall remain in full force and effect. The waiver of a breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. The headings are for convenience and shall not be used to construe this Agreement.

9.3. Governing Law. This Agreement shall in all respects be governed by the laws of the State of Texas without reference to its principles of conflicts of laws. Both parties acknowledge and agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to the license of the Licensed Product hereunder.

9.4. Notices. Unless expressly stated otherwise herein, any notice, demand, request or delivery required or permitted to be given by either party pursuant to the terms of this Agreement shall be in writing and shall be deemed given (a) when delivered personally, (b) on the next business day after timely delivery to an overnight courier, (c) on the third business day after deposit in the U.S. mail (certified or registered mail return receipt requested, postage prepaid), and (d) upon confirmation of receipt by facsimile transmission, addressed to the party at such party’s address as set forth on the first page of this Agreement or as subsequently modified by written notice.

9.5. U.S. Government Restricted Rights. This provision applies to all acquisitions of the Licensed Product by or for the federal government. By accepting delivery of the Software, the government hereby agrees that the Software qualifies as “commercial” computer software within the meaning of FAR Part 12.212 (as amended November 2007), DFARS Part 227.7202-1 and 227.7202-3 (December 2011), and DFARS 252.227-7014(a) (Feb 2012). The terms and conditions of this Agreement shall pertain to the government’s use and disclosure of the Licensed Product and shall supersede any conflicting contractual terms or conditions in any other agreement. If the license granted under this Agreement fails to meet the government’s minimum needs or is inconsistent in any respect with federal procurement law, the government agrees to return the Licensed Product, unused, to SwRI.

9.6. License Restriction. This Agreement is subject to the terms and conditions of the Non-exclusive Copyright License Agreement between the National Aeronautics and Space Administration and Ohio Aerospace Institute for Technology known as “Numerical Propulsion System Simulation (NPSS)” assigned to SwRI on May 1, 2013.

9.7. Export Law Assurances. End User understands that the Licensed Product is subject to export control restrictions, laws, and regulations. End User shall abide by, and ensure that its officers, agents, directors, faculty, staff, students, and representatives abide by all applicable foreign and United States federal, state, and local laws, ordinances, rules, and regulations including export laws and regulations. If End User wishes to ship or make available the Licensed Product outside of its country, End User shall obtain any required export licenses or other permission necessary from the United States and such other countries’ laws as applicable. End User shall be liable for any and all taxes associated with the export of the Licensed Product.

9.7. General. All payments by End User to SwRI shall be made in the United States of America currency, and all payments to SwRI shall be free and clear of all taxes and other governmental charges of any country except the United States of America.

10. Export/Import Compliance.

10.1 Without limiting the generality of the foregoing, End User specifically acknowledges and agrees that the IP is subject to U.S., foreign, and international export control, import, and economic sanctions laws and regulations and agrees to comply with all such applicable laws and regulations, including, but not limited to, the U.S. Export Administration Regulations (“EAR”) and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), in its use of and any other dealings involving the IP.

10.2 End User understands and agrees that the export, reexport, transfer (in-country), sale, lease, or supply, or any other access to or use of the IP to or in a third country or to, by, or for a different end-user or end-use may require a license or other authorization from the Government of the United States. End User warrants that it will not, directly or indirectly, export, reexport, transfer, sell, lease, supply, or allow access to or use of the IP to or by another end-user or third party, including a parent or affiliate company; or to, in, by, or for sanctioned, embargoed, or prohibited countries/regions, persons, or end-uses, without authorization from the U.S. government and such other countries’ laws as applicable. End User understands that countries/regions currently sanctioned or embargoed by the United States include, but are not limited to, Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine. End User further understands that persons subject to U.S. sanctions or other prohibitions include, but are not limited to, individuals or entities identified on or in the U.S. Department of Commerce’s Denied Persons List, Unverified List, or Entity List; the U.S. Department of State’s Nonproliferation Sanctions determinations; or OFAC’s Specially Designated Nationals List, Foreign Sanctions Evaders List, or Sectoral Sanctions Identifications List. In certain cases, entities directly or indirectly 50% or more owned, in the aggregate, by listed individuals/entities also are subject to U.S. sanctions or prohibitions. Finally, End User understands that prohibited end-uses currently can include, but are not limited to, end-uses related to proliferation of nuclear weapons, maritime nuclear propulsion, missiles, rocket systems, unmanned air vehicles, or chemical or biological weapons, as well as military end-uses/end-users in certain countries (currently, China, Russia, Venezuela, and, in certain instances, Iraq) and certain energy projects in Russia or involving Russian entities.

10.3 Notwithstanding any other provision in this Agreement, SwRI shall have the right to terminate this Agreement or stop performance immediately upon the determination by SwRI, at SwRI’s sole discretion, that End User has breached, intends to breach, or insists upon breaching any of the provisions in this Export/Import Compliance provision. End User further understands and agrees that SwRI may at any time halt performance under this Agreement if such performance is not authorized under the EAR or any other applicable law or regulation or if any change in applicable law or regulation creates an unacceptable risk to SwRI if it continues to perform under this Agreement, which SwRI will determine at its sole discretion. Under any circumstance described in this paragraph, SwRI shall be released from responsibility for fulfilling its obligations under this Agreement and shall not be subject to any penalties for lack of performance or breach of this Agreement; and, if instructed by SwRI, End User must cease use of and/or destroy or return all copies of the IP immediately.

10.4 End User covenants and agrees to indemnify and hold harmless SwRI from and against any and all damages, claims, allegations, losses, liabilities, penalties, fines, costs, and expenses, including attorney’s fees, which arise out of, relate to, or result from End User’s failure to comply with the provisions of this Export/Import Compliance provision or any applicable export control, import, or sanctions law or regulation.

THE END USER HAS READ AND UNDERSTANDS THIS ACADEMIC ANNUAL SITE END USER LICENSE AGREEMENT AND AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS ACADEMIC SITE END USER LICENSE AGREEMENT.

I agree to the Terms and Conditions as stated above*.