Itasca™ Software End User License Agreement
Last Updated: October 1, 2023
These terms and conditions of use are entered into by and between Itasca Consulting Group, Inc. (“Itasca” or “We”) and the licensee (“You”) (collectively the “Parties”). The following terms and conditions (the “EULA”), govern Your use of Itasca’s software either in an on-premises or cloud/hosted deployment (the “Software”).
1. Acceptance of EULA
By using the Software, You signify that (a) You have read this EULA (b) You accept and agree to be bound and abide by this EULA, and (c) this EULA has the same force and effect as a signed agreement. If You do not agree to this EULA, You must not access or use the Software.
As described below, using the Software also operates as Your consent to the transmission of certain computer information for license acquisition and some optional utility functions within the Software. If You are accepting this EULA on behalf of Your employer or a corporate entity, You affirm that You have the authority to accept this EULA on such party or entity's behalf. You affirm that You are more than 18 years of age and are fully able and competent to enter into the terms, conditions, obligations, representations, warranties, and indemnification set forth in this EULA, and to abide by and comply with this EULA.
This Software is provided by Itasca or one of its authorized resellers. Title to the media on which the Software is recorded and to the printed documentation in support thereof, if any, is transferred to You, but title to the Software is retained by Itasca. You assume responsibility for the selection of the Software to achieve Your intended results, for the installation of the Software, and for the use of and the results obtained from the Software.
We reserve the right to modify or discontinue the Software (or any portion of the Software), temporarily or permanently, with or without notice to You, and are not obligated to support or update the Software, except as described in this EULA. YOU AGREE THAT ITASCA SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY IN THE EVENT THAT WE EXERCISE OUR RIGHT TO MODIFY OR DISCONTINUE THE SOFTWARE (OR ANY PORTION OF THE SOFTWARE).
Unless explicitly stated otherwise, any new features that augment or enhance the current Software shall be subject to this EULA.
BY USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THIS VERSION OF THE EULA.
This EULA includes a disclaimer of warranties, a disclaimer of liability, a class action waiver, as well as a release and indemnification by You in Sections 1, 5, 9-12, 16, 20, 23, and 25. Please review those sections (and all other terms) carefully.
2. Scope of the End User License
Itasca hereby grants to the Licensee a non-assignable and non-exclusive right to use the Software in accordance with the terms and conditions set out in this EULA solely for the Licensee’s own internal business operations. The license is effective upon installation by the Licensee and remains in force until termination by either party.
The Software can be licensed as (i) a perpetual license or (ii) a subscription license valid for a specified period of time.
- A perpetual license gives the Licensee a right to use the licensed version of the Software perpetually. However, except as described in Section 9 (Warranties), Itasca makes no warranty that the licensed version will work on future computer operating systems or if the software version is licensed with a hardware key, that the hardware key will continue to work in perpetuity.
- A subscription license is a Web License only and gives the Licensee a right to use the Software (the current or at any time the latest version) from the date of purchase for as long as the subscription is valid.
- Subscriptions are purchased and managed through the Itasca Software Website and the FastSpring Buyer Portal. Once a subscription is purchased there is no cancellation.
- A subscription license is automatically renewed unless the payment type does not allow auto-renewal. Licensee will be notified of auto-renewal thirty (15-45) days prior to their subscription end date. Licensee will have the option to cancel the automatic renewal during that thirty (15-45) day period in their FastSpring Buyer Portal (see sales receipt for link to FastSpring Buyer Portal).
3. License Types
All Itasca software is secured unless operated in Demonstration Mode or provided as freeware, as follows:
- A Standard Single License is secured via a hardware lock and allows up to two instances of the software to cycle or modify models on a single computer.
- A Network License is secured via a hardware lock, attached to a server, and allows one instance of the software, per seat, to be used on any computer connected to the network. The number of seats available is controlled by the hardware lock.
- A Web License is secured via a web-based license management system and requires an internet connection. Web Licenses for FLAC2D 9, MassFlow 9, 3DEC 7, FLAC3D 7, and PFC 7 (or newer) allow up to two instances of the software to cycle or modify models, per seat, on a single computer. Web licenses for FLAC 8.1 and Griddle 2 only permit one instance of the software to cycle or modify models, per seat, on a single computer. Multiple seats may be purchased and added to a Web License and used by registered end-users on a first-come basis.
4. Restrictions on Use of Software
In Your use of the Software, You will not:
- Use the Software for any purpose other than for using the features we intentionally make available to You.
- Copy or download any part of the Software, other than for Your personal use, without the prior written authorization of Itasca.
- Re-sell or re-distribute any part of the Software in any form or medium without the prior written authorization of Itasca.
- Alter, modify or make derivative works from any part of the Software without the prior written authorization of Itasca.
- Create another account without our permission, if we have disabled Your account.
- Let anyone else access Your account (excluding internal authorized sharing of credentials for a business account), or do anything else that might jeopardize the security of Your account.
- Sell, sublicense, rent, lease, assign, or transfer Your account or login information to anyone.
- Use the Software in any manner that could damage, disable, overburden, or impair the Software or interfere with any other party’s use of the Software.
- Obtain or attempt to obtain any content through any means not intentionally made available or provided for through the Software.
- Impersonate or misrepresent any person or entity or Your affiliation with someone else.
- Post or transmit any worms, viruses, Trojans, or other harmful, disruptive, or destructive files, code, or programs to or through the Software.
5. Intellectual Property
Everything You see, hear, or otherwise experience on the Software, including but not limited to any graphics, videos, audio recordings, text, software, photographs, scripts, software screens, design elements, artwork, templates, layout designs, interactive features and the like, the concepts and ideas underlying the Software, (collectively, “Content”) and the trademarks, Software marks and logos contained therein (“Marks”), are owned by or licensed to Itasca, subject to copyright and other intellectual property rights under United States and international laws and conventions. Itasca owns the copyright in the selection, coordination, arrangement and enhancement of the Content. Any unauthorized use of any materials on the Software or use of the Marks may violate copyright, trademark, and other laws. Itasca and the Itasca logos are trademarks of Itasca.
The Software may not be copied, downloaded, modified, reproduced, distributed, published, performed, streamed, transmitted, broadcasted, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Itasca reserves all rights not expressly granted in and to the Software, the Content, and the Marks. You agree not to use, copy, download, or distribute any of the Content other than as expressly permitted herein. You may not incorporate the Content into, or stream or transmit the Content via any hardware or software application or make it available via frames or in-line links unless expressly permitted by Itasca in writing. You may not create, recreate, advertise or distribute an index of a significant portion of the Content unless authorized in writing by us. You may not build a business using the Content, whether or not for profit. If You copy or print pages of the Content for personal use, You must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security-related features of the Software or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Software or the Content therein, nor may You scrape or use any extraction methods to obtain any Content or data from the Software.
You shall not, and shall not permit others to, license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party, all or any part of the rights granted to You under this EULA, the Software, or any content or materials accessible through the Software, in whole or part.
6. User Submissions
The Software may permit the submission of comments, feedback, notes, messages, ideas, concepts, know-how, techniques, or other communications submitted by You and other users (“User Submissions”) through the Software. By submitting any such materials through the Software, You represent and warrant that You will not submit or post material that is copyrighted, protected by trade secret or otherwise subject to third-party proprietary rights, including privacy and publicity rights, unless You are the owner of such rights or have permission from their rightful owner to submit or post the material. In addition, You agree to pay for all royalties, fees, and other payments owed to any party by reason of Your posting or submitting User Submissions. ITASCA EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH USER SUBMISSIONS.
If You submit any User Submissions, excluding Technical Support queries, to Itasca, You hereby grant a non-exclusive, royalty-free, perpetual right and license to Itasca and its affiliates to use, reproduce, distribute, display, transmit, publish, modify, edit and/or create derivative works from the User Submissions in any format, including without limitation coding or watermarking such User Submissions, on the Software and in related promotional materials provided in any medium, forum or format, for any purpose of Itasca or its affiliates in their sole discretion.
YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST THE ITASCA PARTIES WITH RESPECT TO USER SUBMISSIONS, AND AGREE TO INDEMNIFY AND HOLD THE ITASCA PARTIES HARMLESS TO THE FULLEST EXTENT ALLOWED BY LAW REGARDING ALL MATTERS RELATED TO YOUR USER SUBMISSIONS AND YOUR USE OF THE SOFTWARE.
7. Users Who Violate EULA
Itasca may, at its sole discretion, disable or terminate the accounts of any users who violate this EULA or whose accounts have been inactive, including, but not limited to, the accounts of (1) users who fail to pay applicable fees for use of the Software, (2) users who provide false or inaccurate information; (3) users who breach this EULA including any warranties; and (4) users who misuse or challenge Itasca’s rights in the Content. Itasca also reserves the right to cancel any pending orders for users who violate this EULA.
8. Updates and Upgrades
Itasca will use its best endeavors to ensure ongoing development of the Software, including corrections of errors.
- Subscription license: When purchasing a subscription license to the Software, Licensee will have access to all updates at no additional cost, for as long as the Licensee’s subscription is valid.
- Perpetual license: When purchasing a perpetual license to the Software, the Licensee will receive access to all bug fixes only for 12 months from the date of purchase. Access to new features may not be available or may require an additional purchase.
If you own a license to previous versions of the Software, you may continue to use those versions provided that (a) it is necessary to use the previous version to read or otherwise use outputs from that version of the program, (b) You do not transfer the previous version to another party, and (c) You acknowledge that any obligation that Itasca has to support the previous version of the program ends 12 months after release of the current version.
A Perpetual license is effective as indicated under the purchasing terms or until terminated.
Perpetual licenses may be terminated at any time by notifying Itasca, destroying any software or documentation downloaded from or installed in connection with the Software together with any back-up copies, and returning any hardware locks. The Licensee shall not be entitled to any refund of the license fee.
For subscription customers, the services provided will automatically renew unless either party gives notice of its election to not renew the term at least thirty (30) days prior to the expiration of the then-current term. Customer cancellation must be done through the FastSpring Buyer Portal (see sales receipt for link to FastSpring Buyer Portal).
Itasca has the right to terminate the license pursuant to this EULA and/or if You fail to comply with any of this EULA.
Itasca will correct any errors in the Software at no charge for a minimum of twelve (12) months after the license purchase date for the Software. Notification of a suspected error must be made in writing, with a complete listing of the input and output files and description of the error. If, in the judgment of Itasca, the Software contains an error, Itasca will (at its option) correct or replace the copy at no cost to the user or refund the initial purchase price of the Software.
You warrant and represent to Itasca as set out below:
- The information provided to Itasca in any registration or application screen, profile, email, posting, telephone call, or through other means, including all personal details, contact details, and all other data provided to Itasca is true in all respects, up-to-date and not misleading in any way.
- You will keep the information referred to in paragraph (a) up to date.
- You will not access the Software under false identity or pretext and will not use it to falsify your or any other person's identity (however, this will not prevent you from using a nickname by which you are known provided the name is used lawfully and in good faith).
- You will use the Software lawfully and in good faith.
- You will keep your log-in details and password secure and will not share such information with third parties.
YOUR USE OF THE SOFTWARE AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS AT YOUR OWN RISK. THE SOFTWARE IS PROVIDED BY ITASCA ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS DESCRIBED IN SECTION 10 (WARRANTY), THE ITASCA PARTIES DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW AND YOU WAIVE ANY REPRESENTATION OR WARRANTY ON THE PART OF THE ITASCA PARTIES RELATING TO THE SOFTWARE OR THE CONTENT, EXPRESS, IMPLIED, STATUTORY, AND OTHERWISE IN CONNECTION WITH THE SOFTWARE, ANY SOFTWARE LICENSED OR PROVIDED TO YOU BY THE ITASCA PARTIES AND ANY AGREEMENT WITH A THIRD PARTY, THAT MAY BE IMPLIED BY THIS EULA, BY CUSTOM, OR BY LAW OR OTHERWISE AND WHICH IS NOT EXPRESSLY SET OUT HEREIN, INCLUDING ANY IMPLIED WARRANTIES OF AVAILABILITY OF THE SOFTWARE, NON-DISRUPTION, SECURITY, ACCURACY, THE USE OF REASONABLE CARE AND SKILL, QUALITY, MERCHANTABILITY, TITLE OR ENTITLEMENT, FITNESS FOR A PARTICULAR PURPOSE, ABILITY TO ACHIEVE A PARTICULAR RESULT OR FUNCTIONALITY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AS WELL AS WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, AND COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, THE ITASCA PARTIES DO NOT REPRESENT OR WARRANT THAT THE INFORMATION ON THE SOFTWARE OR ON ANY LINKED WEBSITES IS ACCURATE, COMPLETE OR CURRENT; THAT THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR ERROR; THAT THE QUALITY, SAFETY OR LEGALITY OF ANY CONTENT, PRODUCTS, SERVICES, SOFTWARE, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOFTWARE OR AGREEMENTS YOU ENTER WITH THIRD PARTIES OR ADVERTISERS WILL MEET YOUR EXPECTATIONS; THAT THE SOFTWARE WILL OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY ITASCA; THAT SOFTWARE ERRORS WILL BE CORRECTED OR THAT SOFTWARE CONTENT WILL BE UPDATED; OR THAT THE SOFTWARE IS PCI COMPLIANT. THE ITASCA PARTIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DATA LOSS OR CORRUPTION), RESULTING FROM YOUR ACCESS TO AND USE OF THE SOFTWARE, (3) UNAUTHORIZED ACCESS TO OR USE OF THE ITASCA SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR INFORMATION STORED THEREIN, (4) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SOFTWARE, (5) BUGS, VIRUSES, TROJAN HORSES, DESTRUCTIVE COMPUTER CODES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SOFTWARE BY ANY THIRD PARTY, AND/OR (6) LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SOFTWARE.
YOU ACKNOWLEDGE THAT THE ITASCA PARTIES HAVE NO CONTROL OVER AND DO NOT GUARANTEE THE QUALITY, SAFETY, OR LEGALITY OF GOODS OR SERVICES PROVIDED BY THIRD PARTIES OR ADVERTISERS, THE TRUTH OR ACCURACY OF ANY THIRD PARTIES’ OR ADVERTISERS’ CONTENT OR LISTINGS, OR THE ABILITY OF A THIRD PARTY OR ADVERTISER TO PERFORM, OR ACTUALLY COMPLETE A TRANSACTION OR SERVICE. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE ITASCA PARTIES FROM AND AGAINST ANY CLAIM, LOSS, OBLIGATION, DEMAND, DAMAGE, JUDGMENT, AWARD, COST, LIABILITY, EXPENSE, AND FEE (INCLUDING ATTORNEY’S FEES) ARISING TO ANY OF THE ITASCA PARTIES AS A RESULT OF ANY CLAIM, DEMAND OR PROCEEDINGS BROUGHT OR THREATENED AGAINST THE ITASCA PARTIES IN CONNECTION WITH (1) YOUR USE OF, ACCESS TO, OR MISUSE OF THE SOFTWARE; (2) YOUR BREACH OF ANY OF THIS EULA; (3) YOUR VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY COPYRIGHT, PROPERTY, OR PRIVACY RIGHT; (4) ANY CLAIM THAT ANY OF YOUR USER SUBMISSIONS CAUSED DAMAGE TO AN INDEMNIFIED PARTY OR A THIRD PARTY; (5) ANY TRANSACTION YOU CONDUCT AS A RESULT OF THE CONTACT FACILITATED BY THE SOFTWARE; OR (5) THE USE OF YOUR TELEPHONE NUMBER, EMAIL ADDRESS, AND/OR PASSWORD BY YOU OR ANY OTHER PERSON ACCESSING THE SOFTWARE USING YOUR ACCOUNT, TELEPHONE NUMBER, EMAIL ADDRESS AND/OR PASSWORD.
IF THE ITASCA PARTIES DO TAKE ANY LEGAL ACTION AGAINST YOU AS A RESULT OF YOUR VIOLATION OF THIS EULA, THE ITASCA PARTIES WILL BE ENTITLED TO RECOVER FROM YOU, AND YOU AGREE TO PAY, ALL REASONABLE ATTORNEYS’ FEES AND COSTS OF SUCH ACTION, IN ADDITION TO ANY OTHER RELIEF GRANTED TO THE ITASCA PARTIES.
13. Limitation of Liability
IN NO EVENT SHALL THE ITASCA PARTIES BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM THE SOFTWARE OR THIRD-PARTY PRODUCTS OR SERVICES, UNDER THIS EULA OR IN CONNECTION WITH THEIR PERFORMANCE OR BREACH, OR IN CONNECTION WITH ANY WARRANTIES HEREUNDER, OR IN CONNECTION WITH THE SOFTWARE, INCLUDING FOR THEIR NEGLIGENCE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING ANY LOSS OF PROFITS OR SAVINGS OR ANTICIPATED PROFITS OR SAVINGS, DATA, OPPORTUNITY, REPUTATION, GOODWILL OR BUSINESS, EVEN IF THE ITASCA PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
THE ITASCA PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, LIABILITY OR LOSS THAT YOU MAY INCUR, OR FOR ANY OTHER UNDESIRABLE CONSEQUENCES, RESULTING FROM: (1) ANY SUSPENSION OR DISRUPTION OF THE SOFTWARE, INCLUDING WHERE SUCH SUSPENSION OR DISRUPTION RESULTS FROM ITASCA’S NEGLIGENCE; (2) ANY ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (3) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SOFTWARE; (4) UNAUTHORIZED ACCESS TO OR USE OF THE ITASCA PARTIES’ SERVERS AND/OR ANY AND ALL INFORMATION STORED THEREIN; (5) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SOFTWARE; (6) INADEQUATE OR FAULTY HARDWARE OPERATING THE SOFTWARE; (7) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SOFTWARE BY ANY THIRD-PARTY; (8) USER CONTENT OR THIRD-PARTY WEBSITES OR APPS; (9) ERRORS OR OMISSIONS IN ANY CONTENT; OR (10) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT WHEREIN SUCH CONTENT OR ADVERTISEMENT IS POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SOFTWARE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE ITASCA PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
THE ITASCA PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, LIABILITY OR LOSS THAT YOU OR ANY OTHER PERSON MAY INCUR, OR FOR ANY OTHER UNDESIRABLE CONSEQUENCES, RESULTING FROM YOUR BREACH OF YOUR WARRANTIES OR OTHER OBLIGATIONS UNDER THIS EULA INCLUDING, WITHOUT LIMITATION, THE OBLIGATION TO AVOID SHARING YOUR EMAIL ADDRESS OR ACCOUNT INFORMATION WITH ANY OTHER PERSON.
THE ITASCA PARTIES’ MAXIMUM AGGREGATE LIABILITY FOR ANY SINGLE EVENT (OR A SERIES OF RELATED EVENTS) GIVING RISE TO A CLAIM IN CONNECTION WITH THIS EULA OR IN RELATION TO THE SOFTWARE, INCLUDING FOR BREACH OF CONTRACT, BREACH OF WARRANTY, MISREPRESENTATION OR NEGLIGENCE WILL BE LIMITED TO A REFUND OF YOUR PURCHASE PRICE.
BY ACCESSING THE SOFTWARE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
Any claims relating to use of the Software must be brought within one (1) year from the date the cause of action arose. Claims brought after such period are VOID.
14. Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT ITASCA HAS OFFERED THE SOFTWARE, SET ITS PRICES, AND ENTERED INTO THIS EULA IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND THE ITASCA PARTIES, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND ITASCA. ITASCA WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
15. Equitable Relief
If You violate this EULA, we may seek injunctive relief or other equitable relief.
16. Subpoena Fees
If Itasca has to provide information in response to a subpoena related to Your use of the Software, then we may charge You for our costs. These costs may include attorney and employee time spent retrieving records, preparing documents, and participating in a deposition.
This EULA, and any rights and licenses granted hereunder, may be transferred or assigned by You only with Itasca’s prior written consent, but may be assigned by Itasca without restriction and without notice to You.
18. Class Action Waiver
ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION. YOUR ACCESS AND CONTINUED USE OF THE SOFTWARE SIGNIFIES YOUR EXPLICIT CONSENT TO THIS WAIVER.
You may not ship, transfer, or export into any country the Software or its updates in any manner prohibited by the United States Export Administration Act or any other export laws or restrictions. In addition, You represent and warrant that You are not a citizen of, or located within, an embargoed nation and that You are not otherwise prohibited under United States Export Laws to receive the Software. Rights to use the Software are forfeited for failure to comply with this EULA.
20. Hardware Locks
Title to any hardware locks associated with a license belongs to Itasca. You are wholly responsible for maintaining and safeguarding any hardware locks. Itasca reserves the right to determine the cost of replacing a lost or stolen hardware lock, up to and including the cost of a new license.
21. Demonstration Mode
If and only if the Software is used in demonstration mode or provided as freeware, this EULA applies in all respects with the following exceptions. THE SOFTWARE IS PROVIDED “AS-IS” AND ITASCA BEARS NO RESPONSIBILITY TO PROVIDE SUPPORT FOR THE SOFTWARE. THE SOFTWARE SHALL BE OPERABLE WITHOUT A HARDWARE LOCK, AND MAY BE LIMITED IN ITS CAPABILITIES, OPERATIONS, OR FEATURES, AS DETERMINED BY ITASCA. YOU ACKNOWLEDGE THAT THE SOFTWARE MAY CONTAIN BUGS, ERRORS, OR OTHER PROBLEMS FOR WHICH ITASCA DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS.
22. Software Support
Technical support is provided directly by the Itasca office or authorized Reseller through which the license was obtained.
For Perpetual Licenses, technical support and bug fixes are provided for the current major release version (e.g., 9.0) as well as for the major version immediately preceding the current major version for 12 months after release of the current major version.
For Subscription Licenses, technical support and bug fixes are provided for the most recent subversion (e.g., 9.3), the most recent major release version (e.g., 9.0), as well as for the previous major release version for 12 months after the release of the current major version. Note that bug fixes will not be provided for subversions preceding the most recent.
Software support includes providing email and telephone support, at no charge, to assist You in the installation of the Software onto Your computer system. Additionally, general assistance may be provided to help You understand the capabilities of the various features of the Software. However, no-cost assistance is not provided for help in applying Itasca software to specific user-defined problems.
Technical support covering modeling questions, applications, definitions, interpretation of results, design guidelines, etc., can be purchased on an as-needed basis. For users who envisage the need for
substantial amounts of assistance, consulting support is available. In all instances, the user is encouraged to send the problem description to Itasca by electronic mail in order to minimize the amount of time spent trying to define the problem.
Itasca (or its authorized Reseller) reserves the right to determine what qualifies as no-cost assistance and what requires payment.
23. Information Transmission
BY USING THE SOFTWARE, YOU CONSENT TO THE TRANSMISSION OF THIS INFORMATION. Itasca does not use the information to contact You.
- Computer Information. The following features require Internet protocols. They transmit information, as noted in each item, in order to provide the Software named.
- Automatic Update Notifications. This optional utility queries the Itasca website at startup to determine if a program update is available and alert You if so. The query appears in a standard internet access log that identifies: the date and time of the query, the computer IP address, the name and full version of the program, and the referrer for the page request.
- Technical Support Dialog. You can use this optional utility to request technical support. The form requires the following data: user first and last name, email address, phone number, company name, computer operating system name and version, Itasca software name and version, program license number, the time and date of the request, and Your problem statement. This data is transmitted as an email to the Itasca office/reseller responsible for providing technical support.
- Web Licenses. Itasca software secured with a web license requires license validation comprised of a database query to the Itasca web licensing system. The query transmits the current computer name, current computer user name, the user account for the web license, the computer IP address, the time and date of the query, and the name and full version of the Itasca code.
24. Third Party Acknowledgements and Terms
The Software may contain links to or be accompanied by third-party websites, software, online services, data, libraries, or other materials (collectively "Third Party Services") that are not owned or controlled by Itasca and are subject to and provided in accordance with terms that are in addition to or different from this EULA. Such terms may be included or referenced in or with such Third Party Services. You agree to comply with such terms. In addition, You will take sole responsibility for obtaining and complying with any licenses that may be necessary to use Third Party Services, data, or other materials that You use or obtain for use in conjunction with the Software. You acknowledge and agree that ITASCA HAS NO RESPONSIBILITY FOR, AND MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING, SUCH THIRD PARTY SERVICES OR YOUR USE OF SUCH THIRD PARTY SERVICES. BY USING THE SOFTWARE, YOU EXPRESSLY RELEASE ITASCA, ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, RESELLERS, SHAREHOLDERS, LICENSORS, LICENSEES, AND SUPPLIERS (COLLECTIVELY “THE ITASCA PARTIES”) FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD PARTY SERVICES AND FROM ANY LOSS OR DAMAGE OF ANY SORT YOU MAY INCUR FROM DEALING WITH ANY THIRD PARTY. Accordingly, we encourage You to read the terms and conditions of use for each other Third Party Service that You visit.
You may not link to the Software from Your website.
This EULA constitutes the entire agreement between the parties and supersede all other agreements, statements, and other arrangements between the parties in relation to the subject matter hereof. If any provision of this EULA is held by a court or other tribunal of competent jurisdiction, to be invalid, void, or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of this EULA, so that this EULA shall remain in full force and effect. Each party acknowledges that it has not relied on or been induced to enter this EULA by a representation other than those expressly set out in this EULA. Itasca and You do not intend to confer, and this EULA will not be construed as conferring, any right, remedy, obligation or liability of any kind on any person other than Itasca, You, and each party’s successors and assigns. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this EULA. No modification, alteration or waiver of any of the provisions of this EULA will be effective unless in writing and signed on behalf of each of the parties. No waiver of any of this EULA shall be deemed a further or continuing waiver of such term or any other term, and Itasca’s failure to assert any right or provision under this EULA shall not constitute a waiver of such right or provision. You agree that the web-based Software shall be deemed solely based in Minnesota, United States of America and the web-based Software shall be deemed a passive service that does not give rise to personal jurisdiction over Itasca in jurisdictions other than Minnesota. This EULA is governed by United States and Minnesota law, without regard to conflict of law provisions, and the parties submit to the exclusive jurisdiction of the courts of Hennepin County, Minnesota in relation to any dispute between them arising out of the subject matter of this EULA. YOU FURTHER AGREE TO INDEMNIFY THE ITASCA PARTIES FOR ALL REASONABLE ATTORNEYS’ FEES IN RESPONDING TO AND DEFENDING ANY LEGAL ACTION BROUGHT BY YOU IN CONTRAVENTION OF THIS FORUM CLAUSE. In the case of a dispute, we strongly encourage You to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.