Software License Agreement

ENVI-MET GENERAL LICENSE TERMS, 6. MAY 2024

This License Agreement applies to the rights of use of the Licensee (“Licensee”) with regard to the software “ENVI-met” (here: “Software”) of ENVI-met GmbH, Essen (here: “ENVI-met”). The License Agreement does not govern additional services, such as customization, implementation, computation, hosting, maintenance, etc.

This License Agreement also does not apply to accompanying programs supplied with the Software; these are subject to the provisions of the license terms in the Appendix.

Any and all general terms and conditions of the Licensee are excluded.

Definitions

Named User – a single natural person who is authorized to use the Software. The Licensee can reappoint the Named User once a year, or if they depart from the organization.

Device – a single physical computer (desktop or laptop computer) used by one Named User, excluding any virtual devices, computation servers or clusters.

1. License – General Provisions

1.1 Unless otherwise provided in this License Agreement, ENVI-met grants the Licensee a non-exclusive, non-transferable and non-sublicensable right to use the Software for its own operational purposes within the restrictions specified in this License Agreement and/or as otherwise agreed (e.g. with regard to number of Named Users and Devices), limited in time to the duration of the agreed subscription. Rights of use which are not expressly granted to the Licensee in this License Agreement shall remain with ENVI-met. The Software can only be used by the Named Users for whom the Software has been licensed, and only on the Devices for which the Software has been licensed.

1.2 Generally, the Software can only be used by entering a registration key issued by ENVI-met, which is issued as an ongoing subscription that renews annually, or for a fixed license term. The Licensee may only use the registration key themselves, must adequately protect it against unauthorized access and may not pass it on to third parties.

1.3 If the Licensee has been granted a license which contains a maximum number of Named Users or Devices, the Licensee may only keep the Software installed on computers up to this defined number of Devices, and may only keep the Software accessible to the defined Named Users. If the licence granted to the Licensee contains a restriction to a specific data processing unit, installation and use shall only be permitted on this unit.

1.4 Licensee may not duplicate the Software unless this is necessary to install or execute the Software. In particular, it is prohibited to copy the Software as part of an Application Service Providing (ASP), Software as a Service (SaaS) or a Cloud Computing solution.

1.5 Licensee may not transfer the Software to third parties. In particular, the Licensee is prohibited from renting, lending, selling, publicly reproducing or making publicly accessible the Software.

1.6 Licensee may not modify, decompile, disassemble, reverse engineer or otherwise modify the Software. The Licensee is prohibited from removing copyright notices, trademarks or other notices of existing copyrights or rights of use from the Software.

1.7 The Licensee is entitled to make a backup copy if and to the extent that he is entitled to use the Software in accordance with this License Agreement and the backup copy is required for securing future uses. This License Agreement also apply to backup copies.

1.8 All rights of use granted to Licensee are subject to full payment of the licence fees owed to ENVI-met for the corresponding Software for the respective period. Until full payment ENVI-met shall be free to revoke the rights of use – granted only provisionally until full payment – at any time without notice. ENVI-met also reserves the right to enforce compliance with the licensed rights of use (the existing restrictions) by means of technical security measures programmed into the Software (e.g. mandatory authentication, copy protection, necessary registration with a user account on an ENVI-met server via an Internet connection). In the event of a violation of this License Agreement by Licensee, ENVI-met shall be entitled to terminate the licenses without notice. Upon termination or revocation of a license, the license holder’s right to use the Software expires. Clause 8.2 shall apply accordingly.

1.9 All rights to the Software (e.g. patent rights, trademarks, copyrights and other intellectual property rights) and to all work results created by ENVI-met shall remain with ENVI-met and shall not be transferred to the Licensee. The Licensee has no claim to the release of the source code and/or the development documentation.

1.10 This License Agreement applies to all copies of the Software made by or on behalf of the Licensee, as well as to Software updates such as updates (which ensure the continuous usability of the existing functionality without including new functionality for the Software), upgrades (which provide – exclusively or additionally – new functionality for the Software), Patches (small software packages for the pure and partial only provisional elimination of errors in the Software) or releases (new consolidated Software versions in which the previous updates have been incorporated) which are supplied to Licensee by ENVI-met or, with ENVI-met’s consent, by a third party (irrespective of whether ENVI-met was obliged to such supply).

1.11 It is not permitted to offer pure calculation services using the Software. Pure calculation services are in particular simulation orders from customers of Licensee, which serve for the exclusive calculation and/or visualization.

1.12 Without the written and signed authorisation of ENVI-met (e-mail is not sufficient), it is not permitted to integrate the Software into another technical analysis method or software and/or to use it in this context.

1.13 ENVI-met has the right to appoint resellers to execute part or all of its duties and rights under this agreement on its behalf.

2. Special Conditions for Scientific Institutions (“Science” License)

2.1 By way of derogation from point 1, the following rules shall apply to Science licences:

2.1.1 If the Licensee has acquired a “Science” license, the Licensee may use the Software exclusively for purposes of scientific research and teaching. The use of the Software for projects financed by companies or otherwise commercially, which are carried out directly or indirectly with the intention of making a profit or generating income, is not permitted. All projects whose financing would be potentially available to other market participants are commercial.

2.1.2 Unless otherwise agreed, the license permits the Licensee to install the Software on up to 50 Devices, but only within one department or research unit of the Licensee. The use in more than one department or research unit requires the acquisition of an additional “Science” license.

2.1.3 The “Science” license permits installation on Devices accessible in public spaces as well as on Devices of faculty members or students. Section 2.1.2, however, remains unaffected.

3. Special Conditions for Students (“Student” License)

3.1 By way of derogation from clause 1 following rules shall apply to ‘student’ licences:

3.1.1 If the Licensee has acquired a “Student” license, the Licensee, who must be also the Named User, may use the Software exclusively for his own student and scientific purposes. The use of the Software for other purposes, in particular for those which are carried out directly or indirectly with the intention of making a profit or generating income, is not permitted.

3.1.2 The license permits the Licensee to install the Software on a single Device.

3.1.3 The use of the Software under the licence “Student” presupposes that Licensee proves to ENVI-met its capacity as a student of a recognised teaching or study institution in a suitable manner. The Licensee is obliged to do this no later than two weeks after acquiring the licence by sending a copy of an academic letter of confirmation or student ID to license@envi-met.com.

3.1.4 The duration of the “Student” license is one year and the license cannot be renewed.

3.1.5 The right to use the “Student” license expires at the latest with the acquisition of a PhD, MSc, MA or a comparable degree.

4. Special Conditions for Trial Version (“Trial” license)

4.1 By way of derogation from point 1 following shall apply to “Trial” licences:

4.1.1 ENVI-met may make the Software available free of charge in the “Trial”.

4.1.2 The “Trial” Software may only be used for testing and evaluation purposes. Any commercial use is prohibited.

4.1.3 The use of the Software in the “Trial” version is – in this respect deviating from clause 6 – under exclusion of any warranty. ENVI-met shall not have any liability for “Trial” Software, no matter the cause or circumstances.

5. Confidentiality

Any information provided by either party to the other party in connection with the Software or the services to be provided under other agreements and expressly marked in writing as confidential or trade secret under the circumstances (hereinafter referred to as “Information”) shall be used solely for the purposes of this License Agreement and shall be protected by the recipient against unauthorized access in the same manner as the recipient treats its own confidential information in cases of equal or similar importance. In any case, however, information must be treated with due care. This information includes, but is not limited to, data, software, license keys, customer information, product and marketing information, product plans, designs, beta versions of the Software, and documentation. However, the obligation to maintain confidentiality or limited use of the Information does not apply to information (i) that is publicly available, (ii) to which such party has had access prior to disclosure, or (iii) that such party has obtained from third parties without any obligation to maintain confidentiality, or (iv) that such party has developed independently of such information. The Licensee acknowledges that the Software is the economically valuable property of ENVI-met, for whose design and development ENVI-met has incurred considerable investments and costs. Software and documentation shall also be regarded as information if they are not expressly marked as confidential in writing.

Notwithstanding the foregoing, ENVI-met has the right to share the confidential information with its subcontractors and affiliates for performance of it’s obligations under this contract.

Excluded from this are those parts of the documentation that are made available under the Creative Commons license. These are subject to the respective License Agreement with which these components are identified.

6. Warranty/Maintenance

6.1 ENVI-met does not provide any guarantee for the Software. A strict liability for defects existing at the conclusion of this License Agreement according to § 536a Abs. 1 BGB (German Civil Code – “Bürgerliches Gesetzbuch”) is excluded.

6.2 The Licensee is aware that it is technically impossible to create 100% error-free software.

6.3 Core features and limitations of the Software result from the service descriptions and documentation provided at https://www.envi-met.com, which ENVI-met has the right to update at any time without notice. The use of the Software requires a functioning Internet connection for which the Licensee is responsible.

6.4 The Licensee acknowledges that the operability of the Software may depend on the configuration of the Software by the Licensee and on the type of content developed or used. The Licensee further acknowledges that the use of the Software may require additional software (e.g. operating system, external database etc.; here: “Additional Software”). The Licensee is aware that ENVI-met may not make further software available. It is the exclusive responsibility of the Licensee to acquire suitable software licenses for the use of Additional Software.

6.5 The Licensee is solely responsible for determining whether the Software is suitable for the purposes pursued by the Licensee. ENVI-met does not warrant that the Software will satisfy any purposes of the Licensee.

6.6 The Licensee must examine the Software immediately upon receipt or download and test it for the essential basic functionalities. The Licensee shall notify ENVI-met immediately in writing of any faults or errors found (e-mail shall suffice in this respect).

6.7 Under no circumstances shall ENVI-met be liable for errors caused by non-observance of operating instructions, modification or extension of the Software or any other influence on functionality by the Licensee.

7. Obligation to Back Up Data

The Licensee is obliged to back up his data used with the Software at regular intervals, but at least once per day of use, in sufficient form and thus to ensure that this data can be restored with justifiable effort. ENVI-met does not back up the data for the Licensee.

8. Limitations of Liability

8.1 Claims for damages are excluded regardless of the type of breach of duty, including unlawful acts, unless intentional or negligent action is present.

8.2 In cases of simple negligence, ENVI-met shall only be liable in the event of a breach of such obligations which are intended to make the performance of this contract possible in the first place and on the observance of which the Licensee may regularly rely (here: “Cardinal Obligations”). In cases of simply negligent breach of Cardinal Obligations, ENVI-met’s liability shall be always limited to one half of the annual value of the License.

8.3 ENVI-met has no liability for loss of data, howsoever caused. Completing backups is an obligation of the Licensee in accordance with Clause 7.

8.4 The limitations of liability and exclusions in this clause 8 do not apply to liability for reasons for which liability can not be excluded due to law.

8.5 ENVI-met’s liability under this contract shall in all cases not exceed half a years license payments paid by the Client. Insofar as ENVI-met’s liability is excluded or limited, this shall also apply to employees, workers, representatives and agents of ENVI-met.

8.6 Unless expressly agreed otherwise or unless a mandatory statutory special rule for the limitation of warranty rights applies, claims for damages shall become statute-barred within one year of the event giving rise to liability.

9. Third-Party Rights

9.1 If a third party asserts claims with regard to the Software against the Licensee, the Licensee shall immediately inform ENVI-met thereof in writing. The Licensee authorizes ENVI-met to defend against the assertion of these claims and/or to conclude a settlement at the discretion of ENVI-met. The Licensee shall provide ENVI-met with all information and support services necessary for the defence against the assertion of these claims and shall not enter into its own settlements with respect to the claims without the prior written consent of ENVI-met.

9.2 In no event shall ENVI-met be liable for such infringements of the rights of third parties resulting from (i) the Software being combined with products or software not supplied by ENVI-met or with the consent of ENVI-met and of which ENVI-met has not been expressly notified in writing, (ii) the Software being extended or modified by ENVI-met on the basis of instructions given by Licensee or other persons, (iii) the acts in question constitute infringements of this License Agreement or (iv) Licensee using an outdated version of the Software. However, liability shall not be excluded under this clause 9.2 if the Licensee can prove that the infringement is not due to one of the above measures.

10. Audit rights and license verification

10.1 ENVI-met shall be entitled to examine and monitor compliance with the licensed rights of use. The Licensee shall also provide ENVI-met with the necessary information.

10.2 For the purposes stated in clause 10.1, ENVI-met shall in particular be entitled at any time to require authentication of the Named Users, including two-factor authentication, and to check the validity of the license key provided to the Licensee by remote access to the Software. For this purpose, Licensee shall ensure that the Software is regularly connected to the Internet. ENVI-met reserves the right to make the use of the Software dependent on the positive Internet-based verification of proper licensing and to restrict the functionalities of the Software in the event of a missing Internet connection or detection of a license violation.

11. Payments

Licenses to the Software are purchased and prepaid as annual subscriptions, or for a fixed period. ENVI-met has no obligation to activate or support a license that is not prepaid or paid on time. If payment on invoice option is offered the payment terms are 14 days net. Late payment interest rate is 15 %, and overdue invoice reminder fee is 20 EUR per reminder.

ENVI-met has the right to increase its prices annually, to take effect at the next anniversary date of the License. However, price increases can not take effect during an already paid-up license term.

The Customer is solely responsible for all banking and currency exchange costs, taxes and duties, and other payment costs. The relevant Withholding Tax/Value Add Tax/Sales Tax will be added, if applicable.

12. Term and Termination

12.1 Unless the License Agreement is entered into for a fixed term or a minimum multi-year term, the agreement is valid for one year at a time and shall renew automatically on the anniversary date of the License Agreement, unless terminated in accordance with these terms. If the agreement has a minimum multi-year term, it can not be terminated prior to the end of that term.

12.2 Either Party may terminate this License Agreement with a three month advance notice to take effect at the next anniversary date of the License Agreement, unless notice is received after the three month deadline, in which case the notice shall take effect at the next anniversary date.

12.3 Licensee shall return or delete all embodiments of the Software, at ENVI-met’s option, at the latest upon expiry of the license term or upon termination for cause becoming effective. At ENVI-met’s request, Licensee shall confirm to ENVI-met in writing the complete return or deletion and/or provide evidence in an appropriate form.

13. Final Provisions

13.1 This License Agreement is subject to German substantive law with the exception of the provisions of the UN Convention on Contracts for the International Sale of Goods. All disputes arising out of or in connection with this contract or its validity shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The arbitral tribunal shall be comprised of a sole arbitrator. The seat of the arbitration is Essen, Germany. The language of the arbitration shall be English. The rules of law applicable to the merits shall be German. 13.2 If a provision of this License Agreement is invalid or unenforceable, this shall not affect the validity of the License Agreement. The invalid or unenforceable provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid or unenforceable provision. This shall also apply mutatis mutandis in the event of a contractual gap.

13.3 This License Agreement together with the subscription cover all agreements between the parties with regard to the subject matter of the contract. Amendments to this License Agreement must be made in writing in the form of a document signed by both parties; this also applies to the amendment or waiver of this written form requirement.

Appendix: License Terms for Accompanying Programs:

Permission is hereby granted, free of charge, to any person obtaining a copy of these accompanying programs and associated documentation files (the “Accompanying Programs”), to deal in the Accompanying Programs without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Accompanying Programs, and to permit persons to whom the Accompanying Programs are furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Accompanying Programs.

THE ACCOMPANYING PROGRAMS ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE ACCOMPANYING PROGRAMS OR THE USE OR OTHER DEALINGS IN THE ACCOMPANYING PROGRAMS.