EM Photonics, Inc.
Software License Agreement
CULA™ DENSE FREE EDITION or CULA DENSE or CULA SPARSE
IMPORTANT - READ BEFORE COPYING, INSTALLING, USING OR DISTRIBUTING
This is a legal agreement ("Agreement") between either a Subscriber or a Licensee, the party licensing either CULA Dense Free Edition or CULA Dense or CULA Sparse, and EM PHOTONICS Inc., a Delaware corporation with its principal place of business at 51 East Main Street, Newark, Delaware, 19711 ("Licensor").  BY CLICKING ON THE "AGREE" BUTTON BELOW AND PRESSING THE ENTER KEY, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY THEM.  If you do not agree with the terms of this Agreement, you may not download, install, use or distribute either CULA Dense Free Edition or CULA Dense or CULA Sparse, as applicable.
1	SCOPE; DEFINITIONS.  This Agreement governs your rights and obligations surrounding the permitted download, installation, use and, if applicable, distribution of either CULA Dense Free Edition or CULA Dense or CULA Sparse.  Unless otherwise defined in this Section 1, the capitalized terms used in this Agreement shall be defined in the context in which they are used.  The following terms shall have the following meanings:
1.1	"Commercial Purpose" means the use, reproduction or distribution, directly or indirectly, of the Software, or any portion of the foregoing, that is intended to result in a direct or indirect pecuniary gain or any other consideration or economic benefit to any person or entity involved in such use, reproduction or distribution.  Examples of a Commercial Purpose, include without limitation, (v) integrating the Software with other software or hardware for sale, (w) licensing the Software for a fee, (x) using the Software to provide a service to a third party, (y) selling the Software, or (z) distributing the Software for use with other products or other services.
1.2	"CULA Dense Free Edition" means Licensor’s limited, pre-complied implementation of linear algebra routines for certain third party graphics processing units. 
1.3	"CULA Dense" means Licensor’s more expanded, pre-compiled implementation of linear algebra routines for certain third party graphic processing units.
1.4	"CULA Sparse" means Licensor's pre-compiled implementation of sparse linear algebra routines for certain third party graphic processing units.
1.5	"Licensee" shall mean an individual or entity who has registered as a Licensee on www.culatools.com/register to use CULA Dense and who has paid the applicable license fees for such use.
1.6	"Intellectual Property Rights" shall mean all proprietary rights, including all patents, trademarks, copyrights, know-how, trade secrets, mask works, including all applications and registrations thereto, and any other similar protected rights in any country.
1.7	"Software" means collectively the CULA Dense Free Edition and the CULA Dense.
1.8	"Subscriber" shall mean an individual or entity who has registered as a subscriber on www.culatools.com/register to use CULA Dense Free Edition.
2	GRANT OF LICENSE. 
2.1	CULA Dense Free Edition License Grant.  Only a Subscriber may exercise the rights under this Section 2.1.  Subject to the terms and conditions of this Agreement, Licensor hereby grants to such Subscriber a world-wide, non-transferable, non sub-licensable, non-exclusive, perpetual license to do any of the following with respect to CULA Dense Free Edition in each case, in accordance with the Documentation and the system minimum user requirements:
(a)	download, install and use CULA Dense Free Edition for any purpose;
(b)	distribute certain unmodified CULA Dense Free Edition files identified on Exhibit A (the "Distributable Files") on a limited stand alone basis to any third party; 
(c)	download and use the Documentation and
(d)	reproduce CULA Dense Free Edition and/or the Documentation as strictly necessary in exercising its rights under this Section 2.1.
2.2	CULA Dense License Grant.  Subject to the terms and conditions of this Agreement, Licensor hereby grants each Licensee a world-wide, non-transferable, non sub-licensable, non-exclusive, perpetual license to do any of the following with respect to CULA Dense:
(a)	download, install and use CULA Dense only for internal use;
(b)	reproduce CULA Dense and/or the Documentation as strictly necessary in exercising its rights under this Section 2.2.
(c) 	You as an individual may install and use the CULA Dense on an unlimited number of computers provided that only one copy of the CULA Dense is in use at any one time. A separate license is required for each additional use in all other cases. If you are an entity, you may designate one individual within your organization to have the sole right to use the CULA Dense in the manner provided above.
2.3	CULA Sparse License Grant.  Subject to the terms and conditions of this Agreement, Licensor hereby grants each Licensee a world-wide, non-transferable, non sub-licensable, non-exclusive, perpetual license to do any of the following with respect to CULA Sparse
(a)	download, install and use CULA Sparse only for internal use;

(b)	reproduce CULA Sparse and/or the Documentation as strictly necessary in exercising its rights under this Section 2.3.
(c) You as an individual may install and use the CULA Sparse on an unlimited number of computers provided that only one copy of the CULA Sparse is in use at any one time. A separate license is required for each additional use in all other cases. If you are an entity, you may designate one individual within your organization to have the sole right to use the CULA Sparse in the manner provided above.
2.4	Limitations on License; Restricted Activities.  Each of the Subscribers and/or Licensees recognize and agree that the Software is the property of Licensor, contain valuable assets and proprietary information and property of Licensor, and are provided to such Subscriber or Licensee, as the case may be, under the terms and conditions of this Agreement.  Notwithstanding anything to the contrary in this Agreement, each Subscriber and/or Licensee agrees that he, she or it shall not do any of the following without Licensor’s prior written consent:
(a)	Download, use, install, deploy, perform, modify, license, display, reproduce, distribute or disclose the Software other than as allowed under this Agreement;
(b)	sell, license, transfer, rent, loan, perform, modify, reproduce, distribute or disclose the Software (in whole or in part and whether done independently or as part of a compilation) for a Commercial Purpose;
(c)	post or make generally available the Software (in whole or in part) to individuals or a group of individuals who have not agreed to the terms and conditions of this Agreement;
(d)	share any license key or authentication information provided to a Licensee by Licensor with any third party to allow such party to access the Software; and
(e)	alter or remove any copyright notice or proprietary legend contained in or on the Software.
Paragraphs (a) though (e) of this Section 2.4 are collectively referred to as the "Restricted Activities").
2.5	Reproduction Obligations.  Each Subscriber and Licensee agrees that any copy or distribution of the Software permitted under this Agreement shall contain the notices set forth in Exhibit A.  In addition, to the extent a Licensee makes any copies of the Software or Documentation under this Agreement, each Subscriber and/or Licensee agrees to ensure that any and all such copies shall contain:
(a)	a copy of an appropriate copyright notice and all other applicable proprietary legends;
(b)	a disclaimer of any warranty consistent with this Agreement; and
(c)	any and all notices referencing this Agreement and absence of warranties.
2.6	Distribution Obligations.  The Distributable Files may be distributed pursuant to Section 2.1(b), and any use of such Distributable Files by a recipient must be governed by the terms and conditions of this Agreement.  Each Subscriber must include a copy of this Agreement with every copy of the Distributable Files it distributes.  Under no circumstance may a Subscriber or Licensee distribute CULA Dense or any files comprising CULA Dense Free Edition not identified on Exhibit A. Each Subscriber must duplicate the notice in Exhibit A with the Distributable Files in a location (such as a relevant directory) where a user would be likely to look for such a notice.  
3	Ownership of Software and Intellectual Property Rights. All right, title and interest to the Software and the Documentation, and all copies thereof, are and shall remain the exclusive property of Licensor and/or its licensors or suppliers. The Software is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions.  Licensor may make changes to the Software, or to items referenced therein, at any time and without notice, and Licensor is not obligated to support and/or update the Software or the Documentation unless otherwise agreed to herein.  Except as otherwise expressly provided, Licensor grants no express or implied right or license (whether by implication, inducement, estoppel or otherwise) under any Licensor patents, copyrights, trademarks, or other intellectual property rights.
3.1	Feedback.  While neither Party is required to provide the other party any suggestions, comments or other feedback regarding the Software, the Documentation or a Subscriber’s and/or Licensee’s use or implementation of the Software and/or Documentation ("Feedback"), to the extent a Subscriber or a Licensee provides Feedback to the Licensor, Licensor may use and include any Feedback so provided to improve the Software or other Licensor technologies and any new features, functionality, or performance based upon the Feedback that Licensor subsequently incorporates into its products shall be the sole and exclusive property of Licensor.  Accordingly, if a Subscriber and/or Licensee provide Feedback, such Subscriber and/or Licensee hereby agrees that Licensor may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Software or other related technologies without the payment of any royalties or fees.
3.2	No Reverse Engineering and other Restrictions.  In addition to agreeing to restrictions in Section 2.4 above, each Subscriber and/or Licensee shall not directly or indirectly: (i) sell, lease, redistribute or transfer any of the Software or Documentation; (ii) modify, translate, reverse engineer (except to the limited extent permitted by law), decompile, disassemble, create derivative works based on, sublicense, or distribute any of the Software; (iii) rent or lease any rights in any of the Software or Documentation in any form to any person; (iv) use any Software for the benefit of any third parties (e.g., in an ASP, outsourcing or service bureau relationship) or in any way other than in its intended manner; (v) remove, alter or obscure any proprietary or copyright notice, labels, or marks on the hardware components of the Software or Documentation; or (vi) disable or circumvent any access control or related security measure, process or procedure established with respect to the Software or any other part thereof.  Each Subscriber and/or Licensee is responsible for all use of the Software and the Documentation and any downloading, installing and using the Software and for compliance with this Agreement; any breach by any user shall be deemed to have been made by the applicable Subscriber and/or Licensee.
4   	Third Party Licenses. This Software includes third-party software, listed in Exhibit B, that is governed by a separate license agreement. By using the CULA software and accepting this Agreement, you additionally agree to adhere to the license agreements for each of the software products. Where required by a third-party license, source code for these products are made available within this Software package.
5	Support.  
(a) 	A Licensee may subscribe to Licensor's CULA Dense maintenance and support program by paying Licensor the then-applicable annual maintenance and support fee (the "Support Fee").  Upon payment of the Support Fee, Licensor shall provide Licensee with the applicable level of maintenance and support services set forth in the support program.  Any CULA Dense updates provided to Licensee pursuant to the support program shall be deemed part of the CULA Dense and shall be licensed under the terms and conditions of the CULA Dense.
(b) 	A Licensee may subscribe to Licensor's CULA Sparse maintenance and support program by paying Licensor the then-applicable annual maintenance and support fee (the "Support Fee").  Upon payment of the Support Fee, Licensor shall provide Licensee with the applicable level of maintenance and support services set forth in the support program.  Any CULA Sparse updates provided to Licensee pursuant to the support program shall be deemed part of the CULA Sparse and shall be licensed under the terms and conditions of the CULA Sparse.
6	Payments.  Licensee agrees to pay amounts invoiced by Licensor for any CULA Dense made available pursuant to this Agreement.  If any authority imposes a duty, tax or similar levy (other than taxes based on Licensor’s income), Licensee agrees to pay, or to promptly reimburse Licensor for, all such amounts.  Unless otherwise indicated in an invoice, all Licensor invoices are payable thirty (30) days from the date of the invoice.  Licensor reserves the right to charge a late payment in the event Licensee fails to remit payments when due.  
7	Confidentiality.  "Confidential Information" means any non-public technical or business information of a party, including without limitation any information relating to a party’s techniques, algorithms, software, know-how, current and future products and services, research, engineering, vulnerabilities, designs, financial information, procurement requirements, manufacturing, customer lists, business forecasts, marketing plans and information.  Each Party shall maintain in confidence all Confidential Information of the disclosing Party that is delivered to the receiving Party and will not use such Confidential Information except as expressly permitted herein.  Each Party will take all reasonable measures to maintain the confidentiality of such Confidential Information, but in no event less than the measures it uses to protect its own Confidential Information.  
7.1	Each Subscriber and/or Licensee hereby agrees that the Licensor shall be free to use any general knowledge, skills and experience, (including, but not limited to, ideas, concepts, know-how, or techniques) ("Residuals"), contained in any (i)_ Subscriber and/or Licensee Confidential Information, (ii) Feedback provided by a Subscriber and/or Licensee; (iii) Subscriber’s and/or Licensee’s products shared or disclosed to Licensor in connection with the Feedback, in each case, which are retained in the memories of Licensor’s employees, agents, or contractors who have had access to such materials.  Licensor shall have no obligation to limit or restrict the assignment of its employees, agents or contractors or to pay royalties for any work resulting from the use of Residuals.
8	Limited Warranty and Disclaimer.
8.1	NO WARRANTIES. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Licensor does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Software. Licensor does not represent that errors or other defects will be identified or corrected.
8.2	LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO THE MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY OR DISCLOSURE OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION IN BREACH OF THIS AGREEMENT, IN NO EVENT SHALL LICENSOR, SUBSIDIARIES, LICENSORS, OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION,  INDIRECT, LOST PROFITS, CONSEQUENTIAL, BUSINESS INTERRUPTION OR LOST INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS PROHIBIT EXCLUSION OR LIMITATION OF LIABILITY FOR IMPLIED WARRANTIES OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO SCRIBER AND/OR LICENSEE. SUBSCRIBER AND/OR LICENSEE MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.  NOTWITHSTANDING THE FOREGOING, LICENSOR’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED UNITED STATES DOLLARS (USD$100).
9	Term; Termination.  
9.1	Term.  The term of this Agreement shall commence on the Effective Date and shall expire on the first (1st) anniversary of the Effective Date (the "Initial Term").  This Agreement shall automatically renew for successive one (1) year periods (the "Renewal Term," and together with the Initial Term, the "Term") unless Licensee provides Licensor with notice of non-renewal at least thirty (30) calendar days prior to its expiration.  
9.2	Termination.  
(a)	Breach.  Either Party may terminate this Agreement upon thirty (30) days’ prior written notice if the other Party materially breaches this Agreement and does not cure such breach within thirty (30) days following receipt of notice specifying the breach.
(b)	Insolvency.  Either Party may also have the right to terminate this Agreement in the event the other party (i) becomes insolvent, (ii) becomes subject to a petition in bankruptcy filed by or against it that is not dismissed within thirty days of the filing of such petition, (iii) is placed under the control of a receiver, liquidator or committee of creditors, or (iv) dissolves, ceases to function as a going concern or to conduct its business in the normal course. 
9.3	Effect of Termination. Upon the expiration or termination of this Agreement, Customer agrees to pay all amounts accrued or otherwise owing to Licensor on the date of termination, and each Party shall return, or certify the destruction of, the Confidential Information of the other Party.  In the event a support program is in place at the effective date of termination, Licensor agrees to continue providing maintenance and support under the terms of this Agreement and the applicable Support Plan through the expiration date of such Support Plan.  Termination in accordance with this Agreement shall be without prejudice to any other rights or remedies of the Parties.
10	Miscellaneous.
10.1	Legal Compliance; Restricted Rights.  Each Party agrees to comply with all applicable Laws.  Without limiting the foregoing, Customer agrees to comply with all U.S. export Laws and applicable export Laws of its locality (if Customer is not located in the United States), and Customer agrees not to export any Network Appliances, Software or other materials provided by Licensor without first obtaining all required authorizations or licenses.  The Network Appliances and Software provided to the United States government are provided with only "LIMITED RIGHTS" and "RESTRICTED RIGHTS" as defined in FAR 52.227-14 if the commercial terms are deemed not to apply.
10.2	Governing Law; Severability.  This Agreement shall be governed by the laws of the State of New Jersey, USA, without regard to choice-of-law provisions.  If any provision of this Agreement is held to be illegal or unenforceable for any reason, then such provision shall be deemed to be restated so as to be enforceable to the maximum extent permissible under law, and the remainder of this Agreement shall remain in full force and effect.  Each Subscriber and/Licensee and Licensor agree that this Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods.  Any and all proceedings relating to the subject matter of this Agreement shall be maintained in the courts of the State of Delaware or Federal District Courts sitting in the District of Delaware, which courts shall have exclusive jurisdiction for such purpose, and Subscriber and/or Licensee hereby consents to the personal jurisdiction of such courts.  
10.3	Notices.   Any notices under this Agreement will be personally delivered or sent by certified or registered mail, return receipt requested, or by nationally recognized overnight express courier, to the address specified herein or such other address as a Party may specify in writing.  Such notices will be effective upon receipt, which may be shown by confirmation of delivery. All notices to Licensor shall be sent to the attention of General Counsel (unless otherwise specified by Licensor). 
10.4	Assignment.  Neither Party may assign or otherwise transfer this Agreement without the other Party’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.  Notwithstanding the foregoing, either Party may assign this Agreement without the consent of the other Party if a majority of its outstanding voting capital stock is sold to a third party, or if it sells all or substantially all of its assets or if there is otherwise a change of control.  This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and permitted assigns.  
10.5	Force Majeure.  Neither Party shall be liable for any delay or failure due to a force majeure event and other causes beyond its reasonable control.  This provision shall not apply to any of Customer’s payment obligations.
10.6	Counterparts.  This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement may be executed by facsimile or scanned signatures.
10.7	General.  This Agreement, including its exhibits (all of which are incorporated herein), are collectively the Parties’ complete agreement regarding its subject matter, superseding any prior oral or written communications.  Amendments or changes to this Agreement must be in mutually executed writings to be effective.  The individual executing this Agreement on behalf of the Customer has the requisite power and authority to sign this Agreement on behalf of Customer.  The Parties agree that, to the extent any Customer purchase or sales order contains terms or conditions that conflict with, or supplement, this Agreement, such terms and conditions shall be void and have no effect, and the provisions of this Agreement shall control.  Unless otherwise expressly set forth in an exhibit that is executed by the Parties, this Agreement shall control in the event of any conflict with an exhibit.  Sections 2, 3, 5, 6, 7, 8, 9 and 10 and all warranty disclaimers, use restrictions and provisions relating to Licensor’s intellectual property ownership, shall survive the termination or expiration of this Agreement.  The Parties are independent contractors for all purposes under this Agreement.  
EXHIBIT A
CULA Dense Free Edition and CULA Dense and CULA Sparse Software License Agreement
The contents of this file are subject to the Software License Agreement (the "Agreement").  You may not use this file except in compliance with the Agreement.  
Software distributed under the Agreement is distributed on an "AS IS" basis, WITHOUT WARRANTY OF ANY KIND, either express or implied. See the Agreement for the specific language governing rights and limitations under the Agreement.
The developer of the CULA Dense Free Edition, CULA Dense, and CULA Sparse is EM Photonics, Inc., a Delaware corporation.
2009- 2012 © EM Photonics, Inc. All Rights Reserved.  
CULATOOLS™, CULA™, the EM Photonics logo, and certain other trademarks and logos are trademarks or registered trademarks of EM Photonics, Inc. in the United States and other countries.  
Note: A printer friendly version of this Agreement is available in RTF format. 

CULA Dense Free Edition Files Re-distributable Pursuant to Section 2.1 (b).

cula_core.dll
cula_lapack.dll
cula_lapack_fortran.dll
libcula_lapack_pgfortran.dll
cula_lapack_link.dll
libcula_core.so.*
libcula_lapack.so.*
libcula_lapack_fortran.so.*
libcula_lapack_pgfortran.so.*
libcula_lapack_link.so*
libcula_core.dylib
libcula_lapack.dylib
libcula_lapack_fortran.dylib
liblibcula_lapack_pgfortran.dylib
libcula_lapack_link.dylib

CULA Dense Files Re-distributable Pursuant to Section 2.2 (b).

    None. To Redistribute CULA Dense, please contact EM Photonics, Inc. at info@culatools.com.

CULA Sparse Files Re-distributable Pursuant to Section 2.3 (b).

    None, except for Third Party content as listed in Exhibit B. To Redistribute CULA Sparse, please contact EM Photonics, Inc. at info@culatools.com.

EXHIBIT B
Third Party Files Re-distributable Pursuant to Section 4.

UFconfig - LGPL

src/suitesparse/UFconfig.tar.gz

COLAMD - LGPL

src/suitesparse/COLAMD.tar.gz
colamd.dll
libcolamd.so
libcolamd.dylib