ANSYS Elastic Units
(Current Version, Effective August 22, 2019)
With respect to the Program(s) identified on the Quotation or License Key as ANSYS Elastic Unit Licenses, Licensee has not procured fixed licenses of Program(s) but rather has procured the right to access licenses of the Program(s) listed in the applicable consumption rate table posted at http://www.ansys.com/aeuconsumption ("Elastic Use Program(s)") on an incremental basis ("Elastic Use"). The consumption rate table applicable to Licensee shall be the most recent version posted at the time of purchase, which may be updated as set forth below. The number of licenses for the Elastic Unit Licenses represents the amount of Elastic Use that Licensee has pre-paid for ("Elastic Use Amount"). Each month the Elastic Use will be decremented against the Elastic Use Amount, based on the applicable consumption rate table. Licensor may, at its discretion, update the consumption rate table to (i) add or remove Program(s) from the list of Elastic Use Program(s), (ii) decrease the consumption rate for any Elastic Use Program(s), (iii) add or remove any hardware Program(s) or (iv) modify the consumption rate for any hardware Program(s). If removing Program(s), Licensor will provide a 30-day notice to Licensee. Such updates will be designated by the same number to the left of the decimal point and a higher number to the right of the decimal point (e.g., version 1.4 is an update to version 1.2).
The manner by which Licensor provides access to the Elastic Use Program(s) shall be at Licensor’s discretion, may change over time and, in any case, shall require Licensee to be connected to the internet. In the event that Licensor is providing access to the Elastic Use Program(s) via the internet on a server owned and/or operated by Licensor (“Cloud License Server”) then, subject to the exceptions listed below, Licensor will use commercially reasonable efforts to make the Cloud License Server available 90% of the time during each calendar month during the License Term (referred to herein as the “Availability Commitment”). The availability of the Cloud License Server for a given month will be calculated according to the following formula (referred to herein as the “Availability”):
Where Total hours in the month = THM
Total hours in the month the Services are unavailable = THU
And: ((THM-THU) X 100)/THM.
For purposes of this calculation, the Cloud License Server will be deemed to be unavailable (referred to herein as “Unavailable”) only if the Cloud License Server does not respond to HTTP requests issued by ANSYS' monitoring software. Further, the Cloud License Server will not be deemed Unavailable for any downtime or outages that result from the following exceptions:
The Cloud License Server will not be considered as Unavailable (and hours will not accrue as THU) for any downtime or outages that result from any maintenance performed by Licensor or Licensor’s cloud hosting provider, which shall be communicated to Licensee from time to time (collectively referred to herein as “Scheduled Maintenance”). In the event during the License Term that ANSYS does not meet the Availability Commitment, as Licensee’s sole and exclusive remedy for such failure, Licensee shall be entitled to be compensated with a pro-rated credit equal to one (1) hour for each hour that the Cloud License Server is Unavailable beyond the Availability Commitment (including any fractional amounts, e.g. if the Cloud License Server is Unavailable for 1.2 hours beyond the 90% Availability Commitment, then Licensee is entitled a pro-rated credit for 2 hours).
Licensee may also include in its purchase order fees ("Overage Fees") to be applied toward use in excess of the Elastic Use Amount ("Overage Use"). Licensor will only invoice against the Overage Fees in the event of Overage Use. In the event that Licensee's Elastic Use exceeds the unused portion of the Elastic Use Amount and Licensee has not provided Overage Fees and/or the Overage Fees cannot fully cover the Overage Use, Licensee shall issue a purchase order to Licensor within ten (10) business days for additional Elastic Unit Licenses that will be for no fewer than the number of Elastic Unit Licenses to cover the Elastic Use that was in excess of the unused portion of the Elastic Use Amount (or, in the case of the payment of Overage Fees, to cover the Elastic Use in excess of what was covered by the Overage Fees) ("Minimum Elastic License Amount").
Use of the Elastic Use Program(s) will be tracked via a monitoring and reporting tool provided by Licensor ("Reporting Tool"). The Reporting Tool will automatically generate a usage report. The usage report may be transmitted to Licensor automatically. In the event that the usage report is not automatically transmitted to Licensor, Licensee will provide the usage report within five (5) business days of Licensor's request for the same. Licensor will generate a monthly summary report that is transmitted to the Licensee that will provide the Programs accessed with the corresponding Elastic Use, as well as the balance remaining of the Elastic Use Amount and/or the excess Elastic Use Amount.
Licensee is aware that it is solely responsible for tracking its Elastic Use and that Licensor nor any third party hosting site (to the extent applicable) has any obligation to notify Licensee when it has utilized all of the Elastic Use for which it has paid. Any portion of the Elastic Use Amount remaining at the end of the License Term will be forfeited without refund.
Licensee will not be entitled to any credits for any errors in a monthly usage report that Licensee does not dispute within ten (10) business days after the transmission of such monthly usage report. In the event of any actual errors in the monthly usage report for which Licensee provides notice to Licensor of within ten (10) business days of the transmission of a monthly usage report, Licensor will make any necessary adjustment to the Elastic Use Amount or the Minimum Elastic License Amount. Licensee shall not be entitled to any refund of any kind for any errors or discrepancies with respect to monthly reports or Elastic Unit Licenses.
Licensor, upon reasonable notice to Licensee, at Licensor’s own cost and no more than one (1) time per year, may have a third party independent auditing firm review and examine license usage under this Agreement and for that purpose such third party firm shall be entitled to have access to Licensee’s premises at a mutually agreeable time and have access to all relevant data, files and information. Such third party firm shall not have physical access to Licensee’s computing devices in connection with any such audit, without Licensee’s prior consent, which shall not be unreasonably withheld. Licensee will reasonably cooperate with such third-party auditor’s activities under this Agreement.