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EMode License Agreement

Last Updated:  November 26, 2021

Alpha Testing Software License Agreement

This Alpha Testing Software License Agreement (this “Agreement“) is entered into and made by and between EMode Photonix LLC, a Colorado limited liability company with offices located at 315 S. 38TH St., Boulder, CO  80305 (“Licensor“) and you (“Licensee“). Licensor and Licensee may be referred to herein collectively as the “Parties” or individually as a “Party.”  

BY (A) CLICKING AN “ACCEPT” OR SIMILAR BUTTON, (B) CHECKING A BOX CAPTIONED WITH ACCEPTANCE LANGUAGE, OR (C) USING OR ACCESSING THE SOFTWARE, LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT, EFFECTIVE AS OF SUCH DATE (“EFFECTIVE DATE”). IF LICENSEE IS USING OR ACCESSING THE SOFTWARE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE TERM “LICENSEE” SHALL REFER TO SUCH ENTITY IN ADDITION TO THE INDIVIDUAL USER, AND THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF SUCH ENTITY REPRESENTS THAT HE OR SHE HAS AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT.

WHEREAS, Licensor desires to license the Software described in Exhibit A attached hereto and incorporated herein to Licensee; and

WHEREAS, Licensee desires to obtain a license to use the Software for its internal business purposes, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  1. Definitions.
    1. “Affiliate” means, with respect to a given entity, another entity that controls, is controlled by, or is under common control with the first entity.  For purposes of this Agreement, “control” means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies or operations of an entity, whether through ownership of voting securities, by contract or otherwise. 
    2. “Documentation” means Licensor’s software guides, examples and interface details relating to the Software provided in writing by Licensor to Licensee.
    3. “Software” means the product(s) described in Exhibit A in object code format, including any Updates provided to Licensee pursuant to this Agreement.  The Software may contain software, components, or other intellectual property licensed by third parties.
    4. “Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Licensor generally makes available free of charge to all licensees of the Software. 
  2. License. 
    1. License Grant.  Licensor hereby grants Licensee a non-exclusive, non-sublicensable, non-transferable, revocable license, during the license term set forth in Exhibit A, to: (i) use the Software solely for Licensee’s internal business purposes; and (ii) use and make a reasonable number of copies of the Documentation solely for Licensee’s internal business purposes in connection with Licensee’s use of the Software. Notwithstanding the foregoing, Licensee may sublicense the Software and Documentation solely to the extent that Licensee is acting as a distributor or reseller of Licensor’s Software licenses.  Licensee may make copies of the Software solely for back-up, disaster recovery, and testing purposes; provided that any such copies of the Software: (x) remain Licensor’s exclusive property; (y) are subject to the terms and conditions of this Agreement; and (z) must include all copyright or other proprietary rights notices contained in the original.
    2. Use Restrictions.  The licensed Software is a tool that Licensee will be able to use for research and development, product design and related purposes. Licensee shall not use the Software or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing, Licensee shall not at any time, directly or indirectly:  (a) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; or (b) remove any proprietary notices from the Software or the Documentation. Further, except as otherwise expressly set forth in this Agreement, Licensee shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Software or the Documentation, in whole or in part; or (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation.
    3. Delivery.  Licensor shall make the Software available electronically, or by other means, as mutually agreed upon by the Parties in writing, to Licensee within eight (8) days following the Effective Date. 
  3. Support; Updates. 
    1. Support.  Licensor shall provide Licensee with the support services described in Exhibit A during the license term.  In the event that Licensor releases a new version of the Software or any component thereof, Licensor may, in its sole discretion, determine whether and how long prior versions will continue to be eligible to receive support services.
    2. Updates.  During the Support Term, Licensor shall provide Licensee, at no additional charge, all Updates, each of which constitutes Software and is subject to the terms and conditions of this Agreement.
  4. Fees and Payment. 
    1. Fees.  Licensee shall pay Licensor the fees (“Fees“) set forth in Exhibit A. Licensor shall invoice Licensee for all Fees in accordance with the invoicing schedule and requirements set forth in Exhibit A. Licensee shall pay all invoices within thirty (30) days after the invoice date. Licensee shall make all payments hereunder in US dollars. Invoices submitted by Licensor to Licensee are deemed accepted and approved unless disputed by Licensee in accordance with the terms and conditions contained herein. If Licensee has a bona fide dispute in relation to any portion of the charges invoiced, Licensee must pay all invoiced charges and shall provide notice to Licensor in writing within thirty (30) days from the date of the invoice.  Such notice shall set forth the details surrounding the dispute.  The Parties shall discuss the disputed charges and negotiate in good faith to resolve the dispute.  
    2. Payment.  Fees may be paid by Licensee (i) by check, (ii) by deduction through automated clearing house (“ACH”) transfers from Licensee’s designated payment account, (iii) by credit or debit card, (iv) via PayPal, or (v) by such other method as is mutually agreed upon by the Parties.  If payment is by ACH, credit or debit card, Licensee authorizes Licensor to automatically charge the ACH and/or credit or debit card account for the charges (plus applicable sales tax) in advance or as otherwise agreed to by the Parties in writing without any further authorization from Licensee. Licensee acknowledges that the authorization will remain in effect until Licensee cancels such authorization by providing written notice to Licensor.  If Licensee’s account on file is closed or the account information is changed, or if, for any reason, a charge is rejected, Licensee shall immediately update Licensee’s account or supply a new payment account, as appropriate.  Licensee acknowledges that it may be assessed a convenience fee of 2.9% for each credit card payment transaction initiated by Licensee.  Licensee hereby agrees to undertake any and all required actions, execute any required documents, instruments or agreements, or to otherwise do any other thing required or requested by Licensor in order to effectuate the requirements of this Section 4(b). In addition, Licensee permanently and irrevocably waives any and all rights to enact a ‘chargeback’ (that is, a disputed, reversed or contested charge with the applicable credit card or bank) against such payments for any reason whatsoever against Licensor.
    3. Taxes.  All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor’s income.
    4. Late Payments.  In the event payment of charges is not made on or before the date such payment is due, Licensor may, in its sole discretion, suspend the license until payment is made in full, without incurring any liability.  If Licensee does not make payment on or before thirty (30) days from the date on which such payment is due to be paid, Licensor reserves the right, in its sole and absolute discretion, to apply interest calculated at a rate of ten percent (10%) per year (with interest accruing on a monthly basis) or the highest rate permitted by law, whichever is less.  Such interest shall accrue from the date upon which payment of such sum became due until payment thereof is made in full together with such interest.  
  5. Confidential Information.  From time to time, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. 
  6. Intellectual Property Ownership. Licensee acknowledges that, as between Licensee and Licensor, Licensor owns all right, title, and interest, including all intellectual property rights, in and to the Software and Documentation. Licensee recognizes that Licensor regards the Software and Documentation as its proprietary information and as confidential trade secrets of great value. Licensee agrees not to provide or to otherwise make available in any form the Software or Documentation, or any portion thereof, to any person other than employees of Licensee without the prior written consent of Licensor. Licensee further agrees to treat the Software and Documentation 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 Software and Documentation.
  7. Warranty Disclaimer.  THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. 
  8. Indemnification.  Licensee, at its expense and to the maximum extent permitted by law, shall indemnify, defend and hold harmless Licensor, its employees, agents, consultants, clients, officers, directors, and other representatives (each, an “Indemnified Party”) from and against all actions, claims, judgments, suits, proceedings, losses, demands, damages, expenses, obligations or liabilities including court costs and reasonable attorneys’ fees, raised by any third parties (including, without limitation, Licensee’s Affiliates, customers, consultants, agents, contractors and/or other representatives) arising out of or relating to (i) this Agreement, and/or (ii) Licensee’s use of the Software and/or Documentation. Licensee will have the right to conduct the defense of any such claim and all negotiations for its settlement and/or compromise except that each Indemnified Party may in its sole discretion participate in the defense of any such claim at the Indemnified Party’s expense.
  9. Limitations of Liability.  IN NO EVENT WILL LICENSOR BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF LICENSOR ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  10. Term and Termination. 
    1. Term.  Subject to Licensee’s compliance with the terms of this Agreement and payment of all applicable Fees, the license to the Software and Documentation shall be in effect for the license term set forth in Exhibit A.  The license term will automatically renew for successive one-year terms unless either Party gives the other Party written notice of non-renewal at least thirty (30) days’ prior to the expiration of the then-current license term.
    2. Termination.  Licensor may terminate this Agreement if Licensee is in default of any of the terms and conditions of this Agreement and fails to correct such default within thirty (30) days after written notice thereof from Licensor. 
    3. Effect of Termination.  Upon termination of this Agreement, the license granted hereunder will also terminate, and, without limiting Licensee’s obligations under Section 5, Licensee shall immediately cease using and delete, destroy, or return all copies of the Software and Documentation. 
    4. Survival.  This Section 10(d) and Sections 1, 5, 6, 8, 9, and 11, and any other provision of this Agreement which, by its nature, is intended to survive termination of this Agreement, will survive any such termination of this Agreement.
  11. Miscellaneous. 
    1. Entire Agreement.  The recitals are hereby incorporated into the body of this Agreement for all intents and purposes as if fully set forth herein. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
    2. Notices.  Except as otherwise provided herein, notices pursuant to this Agreement must be in writing and will be deemed effectively delivered to Licensee when delivered by email to Licensee’s account or by posting on this website.  All notices to Licensor will be deemed effectively delivered to Licensor when delivered by email to emodesolver@gmail.com or upon receipt if delivered by a nationally recognized overnight courier to such address as may be designed by Licensor from time to time.
    3. Amendment and Modification.  Licensor reserves the right to change and/or modify this Agreement at any time and in its sole discretion.  If Licensor makes any modifications to this Agreement, Licensor will inform Licensee by posting a notice on this website and changing the ‘Last Updated’ date.  Any modifications will be effective immediately upon posting the revisions.  Licensee’s continued use of the Software will confirm Licensee’s acceptance of such modifications; therefore, Licensee should frequently review this Agreement to understand the terms and conditions that apply to its use of the Software. If Licensee does not agree to the amended terms, Licensee must stop using the Software. 
    4. Waiver.  Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    5. Force Majeure.  In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; and/or (vi) national or regional emergency.
    6. Severability.  If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    7. Governing Law; Submission to Jurisdiction.  This Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado in each case located in the city of Denver, Colorado, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. 
    8. Assignment.  Licensee may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other Party. Any purported assignment, transfer, or delegation in violation of this Section will be null and void. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.  
    9. Export Regulation.  The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US. subject matter. 
    10. Equitable Relief.  Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

Exhibit a

Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement. 

1. DESCRIPTION OF SOFTWARE:  

EMode is a software package for solving electromagnetic waveguide eigenmodes. Using the finite difference method (FDM), EMode supports subpixel averaging, bend modes, (a)symmetries, perfectly matched layer (PML) boundaries, anisotropic materials, magnetic materials, and mesh expansion. EMode is developed solely as a script-based tool, so users must run Python, Matlab, or Octave to communicate with EMode. A valid license is necessary to run EMode, which is checked out while running the Software via an internet connection to a license server hosted by EMode Photonix. As soon as EMode has finished running and the program is closed, the license is checked in and will be available for use by another user with the same login. This is intended to allow sharing of one or multiple licenses within a particular research group.

The Software contains the following third-party components:

The Software contains the following indirect third-party components:

2. LICENSE TERM:

One (1) year, commencing on the Effective Date, subject to automatic renewal in accordance with Section 10(a) of the Agreement.

3. FEES: 

License Fee:  $0.00, invoiced in advance on the Effective Date and annually thereafter for any renewal term.

4. SUPPORT: 

Licensor will provide to Licensee the following support with respect to the Software: 

(a) If Licensee notifies Licensor of a material program error respecting the Software via Licensor’s ticket submission system, Licensor shall make a commercially reasonable attempt to correct such error. 

(b) In the case that Licensee has technical questions in the use of the Software, Licensee may submit those questions to Licensor via Licensor’s ticket submission system, and Licensor shall exercise commercially reasonable efforts to answer such questions. 

Licensee is responsible for obtaining and maintaining internet access, computer hardware suitable for running the Software, and access to third-party scripting software to run the Software. Support is limited to connections to certain versions of:

(i) Python; 

(ii) Matlab;

(iii) Octave.