S T A N D A R D S O F T W A R E
L I C E N S E A G R E E M E N T
for Software by
FRIENDSHIP SYSTEMS AG
Potsdam, Germany
Standard Software License Agreement for
CAESES
Date: 10 March 2015
This Software License Agreement (also called “agreement” hereafter) is made by and between
FRIENDSHIP SYSTEMS AG,
a corporation organized and existing under the laws of the Federal Republic of Germany (also called the “licensor” and/or “provider” hereafter) on one part, and
the person and/or company
that installs the software on one or several personal computers, workstations and/or any other hardware (also called the “licensee” and/or “customer” hereafter) on the other part.
Article 1 – License grant
1.1 License
Subject to the terms and conditions of this agreement, the licensor grants the customer a non-transferable, non-exclusive license to use the software along with its documentation as listed in annex 1.
1.2 Key for usage
In connection with the license granted herein, the licensor shall license to the customer a user authorization (also called “key” hereafter) for the individual user, personal computers or workstations that shall be used to run the software. The customer may use the software along with its documentation on as many personal computers or workstations as listed in annex 2. The customer agrees that the number of simultaneous users of the software shall not exceed the number of sites licensed to the customer.
Title to each key will remain with the licensor and the licensor may reclaim every key in the event of an uncured breach of this agreement. Additional keys for additional users, personal computers and workstations will be provided to the customer at the licensor’s then current charges.
1.3 Term of agreement
This agreement comes into effect upon installation of the software unless specified differently in annex 3.
1.4 Restrictions
The customer shall not
a. Use the software to provide services under any name other than that of the licensee;
b. Modify or change the software;
c. De-compile, disassemble or otherwise reverse engineer the software.
d. Sublease the software or make the software accessible to third parties in an automated way through network connections as Application Service Provider;
e. Give or otherwise provide the software or any portion or derivative thereof to any other person, firm, organization, or government agency.
Article 2 – Deliverables
2.1 Software
The licensor shall provide the customer one executable copy of the software along with its documentation. The customer shall only copy the software along with its documentation to the personal computers and workstations for which a key will be granted. Except for one archival copy for back-up purposes only, the customer shall not make additional copies.
2.2 Hardware
The customer shall arrange for the purchase or lease, installation, testing and maintenance of adequate hardware. The customer shall be solely responsible for hardware maintenance, including periodic inspections, adjustments, and repair.
Article 3 – Installation, service and training
3.1 Installation
The licensee shall install the software.
3.2 Service
The licensor shall provide its service package (also called “MSS” or “MSP” hereafter) as stated in annex 4. Updates can be downloaded from FSYS website for free as long as licensee’s maintenance and support contract has not expired. The use of updates by licensee is not subject to this contract and does no reset any warranty or liability period.
3.3 Training
The licensor shall provide training within its professional training courses as stated in annex 5.
Article 4 – Fees and payment
4.1 Fees
The total amount for the license and service is given in annex 7.
4.2 Payment
The customer shall pay the licensor the software license fees, in the amounts and under the terms set forth by the licensor. All fees shall be payable upon presentation of invoices. The customer shall remit to the bank account specified by the provider in EURO by telegraphic transfer. Amounts are exclusive of all bank charges, taxes and other costs.
4.3 Taxes
Taxes levied on fees in this agreement by the country of the licensee shall be borne by the customer.
Article 5 – Confidentiality and protection
5.1 Confidentiality
The customer agrees that neither the customer, its agents nor its employees shall in any manner use, disclose or otherwise communicate any information with respect to the software and its documentation which might enable copying of all or any portion of the software.
5.2 Protection
The customer agrees to take all necessary protective action. In any event it shall utilize its best efforts to prevent disclosure of such information and maintain the confidential nature of such information to the same extent that it protects its own confidential information. The obligation of this section shall survive any termination of this agreement.
Article 6 – Title, ownership and copyright
6.1 Title and ownership
It is mutually agreed that this agreement involves license for use of the software and that nothing contained herein shall be deemed to convey any title or ownership interest in the software to the licensee.
6.2 Copyright
The customer agrees that the licensor owns all copyright, trade secret, patent, trademark and other proprietary rights in and to the software, including all modifications thereto.
Article 7 – Warranties and liability
7.1 Warranties
The licensor warrants that it has clear title to the software. The licensor further warrants that the software, if used by the customer in accordance with the software’s documentation, will substantially perform the functions set forth in annex 1.
THE LICENSOR MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.2 Liability
The licensor shall not be liable for special, indirect, incidental or consequential damages, whether arising from contract or negligence. In no event shall the licensor’s liability exceed the fees paid by the customer according to annex 7.
No action or claim relating to this agreement or the software may be instituted more than one year after the event giving rise to such action or claim.
Article 8 – General provisions
8.1 Assignability
This agreement and all rights and obligations hereunder shall not be assignable by the customer except with the prior written consent of the licensor. A change in control shall be deemed an assignment subject to this subsection. This agreement shall be binding upon each party’s permitted successors and assigns.
8.2 Indemnification
The licensor shall indemnify and hold the customer harmless from and against any claim of infringement of any patent or copyright based upon the software, provided the customer gives the licensor prompt notice of and the opportunity to defend any such claim. The licensor shall have the right to settle such claim or, at the licensor’s option, (i) provide the customer a paid-up license; (ii) substitute functionally equivalent software; or (iii) give a refund of a pro rata portion of the license fee paid for the software based on a deemed license term of five years.
8.3 Entire agreement and amendment
This agreement with its exhibits is the complete and exclusive agreement of the parties and supersedes all other communications, oral or written, between the parties relating to the agreement’s subject matter. Any change to this agreement shall not be valid unless it is in writing and signed by both parties.
8.4 Choice of law
This agreement shall be governed by the laws of the Federal Republic of Germany.
All disputes arising from and connected with this agreement shall be settled by negotiations between the licensor and the licensee and if these parties are unable to resolve them amicably, such disputes shall be finally settled under the Rules of the International Chamber of Commerce, by three arbitrators appointed in accordance with the said Rules, and such arbitration shall take place in Berlin, Germany.
8.5 Default and termination
In the event of any default or breach in the performance of any obligations under this agreement by either party, written notice must be given to the other party without delay, specifying the nature of such default or breach. The violating party is obliged to clear off or commence to clear of the default or breach within 15 days upon notice given, otherwise the other party may terminate this agreement by giving written notice of such termination on a date specified therein, which shall not be less than 15 days from the date when said notice is given.
If this agreement is terminated, all outstanding fees will immediately become due and payable and the customer shall return all copies of the software to the licensor and erase any copies residing in any machine.
8.6 Force majeure
Neither the licensor nor the licensee shall be held responsible or liable to the other for any delay in carrying out their respective obligations hereunder in so far as such delay arises directly or indirectly at any time hereafter on account of force majeure whatever not within the control of either party.
8.6 Waiver
Neither the failure nor any delay to exercise a right, remedy or privilege under this agreement shall operate as a waiver thereof, nor shall any single or partial exercise of a right, remedy or privilege preclude any further exercise of the same.
8.7 Language and communication
English is the official language of this agreement and of all further communication between the licensor and the licensee.
All notices, notifications and other communications required under this agreement shall be in writing and shall be deemed to have been received when personally delivered or when deposited in the mail, sent registered mail, postage prepaid, addressed as set forth in annex 6 of this agreement. The parties undertake to inform each other of any change of address.
8.8 General Terms and Conditions
Further to this agreement the General Terms and Conditions of the licensor are applicable as distributed with the software, see annex 9.
8.9 Severability clause
A determination on that any provision of this agreement is invalid, illegal or unenforceable shall not affect the enforceability of any other provision. A provision similar or close to the original meaning to that which is found to be invalid, illegal or unenforceable shall be utilized as a replacement.
This agreement contains the following annexes:
Annex 1 – Software
Annex 2 – Sites/Users
Annex 3 – Term of agreement
Annex 4 – Service
Annex 5 – Training
Annex 6 – Registered addresses
Annex 7 – Payment
Annex 8 – Customization
Annex 9 – General Terms and Conditions
For and on behalf of the licensor
FRIENDSHIP SYSTEMS AG
Potsdam, 10th of March 2015
Dr.-Ing. Stefan Harries MSE
Managing Director
Annex 1 – Software
The licensee is granted a non-commercial trial license. The trial license is limited in time and may only be used to evaluate the software.
The sole aims of the evaluation shall be to support potential customers in their effort to identify if the software is applicable to their design tasks and if they want to purchase a suitable commercial and/or academic license at a later point in time.
CAESES is a Computer Aided Engineering system for the geometric modeling, numerical simulation, systematic variation and formal optimization of functional surfaces.
In particular, CAESES is an integration environment for the advanced hydrodynamic design of ships and other functional surfaces such as pumps, turbines etc. It facilitates the work flow at the early stage of shape development by closely coupling CAD capability to CFD analysis. The system supports the consistent generation and assessment of variants and offers integrated constraint management.
The software and all its documentation is and will be in English.
The computer platforms on which the software can be made available are
o Windows 7, Windows 8
o Various Linux distributions are supported.
Annex 2 – Sites
Each personal computer or workstation on which the software and its documentation are installed is considered a single site.
The licensee may use the software as listed in annex 1 on one site.
Annex 3 – Term of agreement
This agreement is in effect upon installation of the software by the licensee or upon being provided a key to run the software whichever comes first. The non-commercial trial license ends 14 days upon receiving a key unless prolonged by the licensor.
Annex 4 – Service
The licensor provides no service for a non-commercial trial license unless the licensee has participated in a training course.
Upon participation in a training course offered by the provider, see annex 5, the licensee is entitled a three months non-commercial trial period along with three months of support as specified in the standard service package (SSP).
Annex 5 – Training
The licensee may take part in training courses offered by the provider at the then current fees. Detailed information can be made available by the licensor. For contact data see annex 6.
Annex 6 – Registered addresses
The licensor (provider):
FRIENDSHIP SYSTEMS AG (FSYS)
Benzstrasse 2, 14482 Potsdam
Federal Republic of Germany
Tel 49-331-96 766 0
Fax 49-331-96 766 19
Email support@FRIENDSHIP-SYSTEMS.com
Web www.FRIENDSHIP-SYSTEMS.com
The licensee (customer):
––
Annex 7 – Payment
This non-commercial trial license is granted free of charge.
Annex 8 – Customizations
No customizations of the software are arranged between the licensor and the licensee under this agreement.
Annex 9 – General Terms and Conditions of FRIENDSHIP SYSTEMS AG
The General Terms and Conditions (GTC) given in this agreement are a verbatim replication of the GTC dated 1st of January 2015. The agreement supersedes the GTC in case of conflicting provisions.
1. Scope
The following General Terms and Conditions apply to software licensing and delivery by FRIENDSHIP SYSTEMS as well as to services rendered and work performed by FRIENDSHIP SYSTEMS. They apply correspondingly to other transactions if there are no special conditions. All services performed for customers by FRIENDSHIP SYSTEMS are rendered exclusively on the basis of these General Terms and Conditions. Diverging Terms and Conditions posed by the customer shall only apply if FRIENDSHIP SYSTEMS confirms the same in writing.
2. Offers, Conclusion and Contents of Contract
a) Offers made by FRIENDSHIP SYSTEMS are not binding. Contracts only become effective upon written confirmation of the customer’s order, by performance of services or by delivery by FRIENDSHIP SYSTEMS. Verbal commitments constitute no guarantee and are only binding if confirmed in writing by FRIENDSHIP SYSTEMS.
b) For optimization of forms and similar services the volume of performance is limited to computer-aided optimization of products. The accuracy of such simulations may be influenced by a multitude of partially unknown factors. Since computer-aided simulations may contain – owing to the method – simplifications and thus may diverge from the factual physics, FRIENDSHIP SYSTEMS is only obliged to verify its proposals with respect to plausibility. The customer shall screen the proposals with appropriate measures himself or by a third party. The same applies to all other performance by FRIENDSHIP SYSTEMS, if based on simulations.
3. Prices, Maturity and Terms of Payment
a) If prices are not stipulated individually, FRIENDSHIP SYSTEMS’ list prices as valid at the time of confirmation of the order shall
apply plus postage, freight, insurance and delivery fee.
b) In addition to the prices the value added tax shall be payable at the applicable rate.
c) According to the volume of the order, FRIENDSHIP SYSTEMS may invoice the customer up to 50% of the value of the order in
advance either at the placement of the order or at partial delivery.
d) Any banking charges and currency exchange costs shall be at the customer’s expense.
e) Invoices are payable upon receipt.
4. Delivery period, Delivery duties, Communication
a) The delivery period and performance starts at the date of the confirmation of the order. If the customer is obliged to perform in
advance, the period of delivery and performance starts upon receipt of such performance. FRIENDSHIP SYSTEMS has the right to partially deliver and perform.
b)
If
FRIENDSHIP
SYSTEMS
wrongfully fails to deliver or perform by the agreed date, the
customer may rescind the agreement after a reasonable grace period
communicated by him in writing has elapsed. This shall be the
customer’s sole remedy save in cases of malice, willful misconduct
or gross negligence or breach of an essential contractual obligation.
This does not apply to cases of death or personal injury or product
liability.
In
cases of force majeure or lack of cooperation by the customer
FRIENDSHIP
SYSTEMS
may deliver and perform after the obstacle has ceased to exist, if
such obstacle occurred when FRIENDSHIP
SYSTEMS
was still permitted to deliver and perform.
c) Unless otherwise expressly agreed in writing, periods of delivery contained in the confirmation of the order are only approximate since they are based on estimates of the amount of work involved.
d) FRIENDSHIP SYSTEMS may execute correspondence and delivery via unencrypted email without restriction unless otherwise agreed in writing on conclusion of the contract.
5. Delivery of software
a) For third party software and for software by FRIENDSHIP SYSTEMS the customer receives a non-exclusive, non transferable right to use the software and documentation for a contracted period of time. Further details are governed by the standard license agreement or individual agreement if the latter has been agreed upon. The standard license agreement will be shipped with the software.
b) The customer himself has to check the delivered software for usability, expediency and utilizability upon receipt.
c) FRIENDSHIP SYSTEMS allows the customer to use software in its object code and in the user documentation only on one physical electronic data processing system at a time and only to fulfill the tasks the software is designed to fulfill. If not explicitly permitted by law, the customer may not decompile the software or reverse engineer it. The customer may copy the software as far as necessary for the permitted use, in particular for safe guarding. Upon delivery of software – also of updates and upgrades – the customer shall make a copy for safe guarding. Utilization of the software on a virtual electronic data processing system requires the express prior consent by FRIENDSHIP SYSTEMS.
d) FRIENDSHIP SYSTEMS may terminate the right of use if the customer – despite a warning – after a period of 30 days continues to violate the conditions of use. Upon termination of his right of use the customer shall either return the original and all copies or partial copies of the software to FRIENDSHIP SYSTEMS or erase them within 30 days. FRIENDSHIP SYSTEMS has to be notified of an erasure in a plausible manner without delay. Upon written approval the customer may keep a file copy for archiving purposes.
6. Performance of Service and Work
a) When performing services, FRIENDSHIP SYSTEMS shall advice and support the customer in reaching the contracted performance goal. As far as necessary and beneficial, the customer shall provide FRIENDSHIP SYSTEMS with auxiliary means and sources of information.
b) If the customer fails to contractually cooperate, and consequently, delays or additional expenses occur, FRIENDSHIP SYSTEMS
may – without prejudice to further rights – demand compensation of the additional expenses.
c) If the delivery of a work performance is obliged, FRIENDSHIP SYSTEMS shall produce the work. After completion of the work or at another agreed date FRIENDSHIP SYSTEMS will prove to the customer the execution in accordance with contractual specifications by set terms of acceptance or by test data supplied by the customer. If that succeeds, the customer shall accept the performance. Minor divergence from agreed features or terms of acceptance do not give the customer the right to refuse acceptance.
7. Warranty
a) In case of a defect, FRIENDSHIP SYSTEMS may elect to either remedy the defect either at FRIENDSHIP SYSTEMS’ or at the customer’s premises – or to redeliver a good free from defects. If the defect has not been remedied after the second attempt or FRIENDSHIP SYSTEMS fails to deliver goods free from defects within a reasonable time, the customer may reduce the purchase price or rescind from the contract. This shall be the customer’s sole remedy in cases of defective goods or services save in cases of malice, willful misconduct or gross negligence or breach of an essential contractual obligation. This does not apply to claims arising out of death or personal injury or product liability.
b) The customer has to inspect the delivery immediately and give written notice of defects to FRIENDSHIP SYSTEMS. Hidden defects and defects discovered only later (despite a first inspection) have to be communicated immediately in writing. If the customer fails to comply FRIENDSHIP SYSTEMS is relieved from any warranty-obligation for such defects.
c) The limitation period for warranty claims is one year from delivery and acceptance of the goods or services.
8. Liability
a) The liability of FRIENDSHIP SYSTEMS for cases of slight negligence shall be limited to the agreed remuneration or EUR 50,000, whichever is the lower, except in the event of breach of an essential contractual obligation. In such a case, the liability of
FRIENDSHIP SYSTEMS shall be limited to the typical foreseeable damage.
9. Ownership Rights and Rights of Utilization
a) FRIENDSHIP SYSTEMS retains all ownership title of documentation and data media, on which software is delivered, until the
purchase price for the product or performance has been fully paid. In case of contracts with merchants, FRIENDSHIP SYSTEMS
retains all ownership title of documentation and data media until all trade accounts receivable concerning current transactions have
been fully paid.
b) FRIENDSHIP SYSTEMS will hand over to the customer the results of work such as program material, documentation, drawings in written or machine-readable form owed by FRIENDSHIP SYSTEMS as a debtor after completion, acceptance and payment.
FRIENDSHIP SYSTEMS may retain copies of these data for documentation.
c) FRIENDSHIP SYSTEMS grants the customer the right to, unlimitedly in terms of time and territory, use, duplicate and process the work created in execution of an order for purpose of the customer’s enterprise, and to unite it with other works. The passing on of the work or of parts of it is not allowed.
d) Inventions made by employees of FRIENDSHIP SYSTEMS during the execution of an order may be filed by
FRIENDSHIP SYSTEMS in its name for an industrial property right.
10. Set off, Right of Retention, Right of Termination without notice
a) The customer may set off counter claims only if they are undisputed or finally awarded by a court. The customer has the right of
retention only if based on the contractual relationship. Every order is considered a separate contractual relationship.
b) FRIENDSHIP SYSTEMS has the right to terminate a contract or license agreement without giving due notice in the event that
the customer’s financial situation has deteriorated considerably or the enforcement of insolvency proceedings over the customer’s
property has been requested for.
11. Final Provisions
a) All contractual relationship between the parties shall be governed by the Laws of Germany, excluding the UN Convention (CISG) on the International Sale of Goods, dated April 11, 1980.
b) The agreed place of performance is Potsdam. The courts of Potsdam have jurisdiction over all claims of the parties.
FRIENDSHIP SYSTEMS may start legal action at the customer’s seat as well.
c) The invalidity of any provision of these General Terms and Conditions does not affect the validity of the other provisions. The parties commit themselves in this case to agree upon a new provision that comes close to the economic purpose of the deleted provision to the greatest extent possible and that they would have agreed upon had they known the invalidity. The equivalent is valid in case of the need to fill a gap.