End-User License Agreement

THIS IS A CONTRACT. BY INDICATING YOUR ACCEPTANCE BELOW, YOU ACCEPT ITS TERMS AND CONDITIONS INCLUDING, IN PARTICULAR, LIMITATIONS ON THE USE OF THE LICENSED PRODUCTS AND THE LIABILITY.

This End-User License Agreement ("Agreement") is a legal agreement between

Eleven Dynamics GmbH (“Company”)
Hauptbahnhofstrasse 7,
4500 Solothurn,
Schwitzerland - CH

and you, either an individual or a single entity ("Licensee") for the Licensed Products (as defined below). By installing, copying, or otherwise using the Licensed Products, you agree to be bound by the terms of this Agreement. You agree that this Agreement is enforceable like any written negotiated agreement signed by you. If you do not agree to all the terms of this Agreement, do not install, or use the Licensed Products, and contact Company.

WHEREAS

Company is a producer and supplier of computer software for automating metrology processes, commercialized under the tradename Nexos 4.0;

WHEREAS

Company is the lawful owner of and/or has the right to license the proprietary computer programs, as described in this Agreement.

WHEREAS

Licensee wishes to license use of the compiled code of the Licensed Products, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, THE COMPANY AND THE LICENSEE (“PARTIES”) HEREBY REPRESENT, WARRANT, AND AGREE AS FOLLOWS:

1 Preamble

The preamble is part of the present Agreement.

2 Definitions

2.1 Licensed Software

shall mean Software products composed of Company’s computer programs in machine-readable compiled code, intermediate code or interpreted form, and associated program updates and upgrades, and related items such as software keys.

2.2 Licensed Materials

shall mean "online" or electronic user manuals and specifications, and any other media, printed materials, and "online" or electronic documentation, provided by Company to the Licensee for use with Licensed Software.

2.3 Licensed Products

shall mean the Licensed Software and the Licensed Materials commercialized under the tradenames Nexos 4.0.

2.4 Error

shall mean any reproducible functional defect in the Licensed Software resulting in the Licensed Software not conforming with the Licensed Materials.

2.5 Internal Use

shall mean the use of Licensed Software on the Licensee's computing devices.

2.6 Users

shall mean the directors, officers, and employees of the Licensee or any other person using the Licensed Products.

2.7 Open-Source Library

shall mean object code that is statically or dynamically linked to the Licensed Software and that contains, or is derived from, any computer source code licensed pursuant to a license that is identified as an open-source license by the Open-Source Initiative (opensource.org) or other similar licensing or distribution models for computer code offered free of charge.

2.8 Third Party Library

shall mean object code that is statically or dynamically linked to the Licensed Software, proprietary to Company or licensed by it from Third Party vendors.

3 Scope, general information

3.1 End-User License Agreement

  1. This End-License User Agreement (“EULA”) shall apply to all contracts between Company GmbH (“Company”) and the user (“Licensee”) to the extent that those contracts concern the supply of software (trial versions and commercial versions) including user documentation and other accompanying materials (hereinafter referred to as “Software”).
  2. The EULA also applies to the supply of new versions of the Software (e.g., patches, bug fixes, updates, upgrades, etc.) and user documentation supplied with such new versions or provided for download from the Licensor’s website.
  3. The EULA also applies to the exclusion of any other terms and conditions. Differing, conflicting or supplementary general terms and conditions of business of the User shall be deemed to be included in the contract only if and insofar as the Licensor expressly accepts them in writing. Such acceptance shall be required in all cases, even if the Licensor is aware of the general terms and conditions of the user and commences provision of services to it without protest.
  4. Individually negotiated agreements between Company and Licensee (including side agreements, additions, and amendments) shall prevail over these Terms of Use in all cases. The content of such agreements shall be set out in a written contract or confirmed in writing by Company.
  5. All declarations and notices of legal relevance issued to Elven Dynamics by the Licensee after conclusion of the contract (e.g. notices setting deadlines, reporting defects or giving notice of withdrawal from the contract or a reduction in the purchase price) must be sent to info(at)11dynamics.com.

4 License

Company hereby grants Licensee a nonexclusive, non-transferable license to use the Licensed Products solely for its own internal use only and for no other purpose.

Licensee is responsible to clearly advise all Users, as described in section 2.6, of all obligations contained in this Agreement.

4.1 Perpetual (“Single”) Licenses

4.1.1 License Period

For purchased perpetual Licenses only—excluding subscription licenses as well as evaluation licenses—the license is granted for an indefinite period.

4.1.2 Maintenance

Maintenance, support, and access to software updates for perpetual Licenses are excluded, unless Licensee enters an additional support agreement with Company.

4.2 Subscription Licenses

4.2.1 Subscription Period

The Subscription Period for the Software will begin on the day Licensee orders the Software and ends one month thereafter. Licensees are not allowed the concurrent use of more than one computing device.

Licensee agrees to pay the Subscription Fee for the Subscription Period. Licensee’s subscription to the software will automatically renew for a new Subscription Period upon your payment of the new subscription fee.

Company reserves the right to change the Subscription Fee for any renewal Subscription Periods. Each new Subscription Period will be subject to the same terms and conditions set forth in this Agreement, which may be updated by Company from time to time.

4.2.2 End of Subscription Period

Licensee agrees that Company may disable the Software, either by operation of the software or by a remote command from Company, at the end of the Subscription Period if you have not paid the Subscription Fee to renew your subscription to the Software.

4.2.3 Maintenance

Maintenance and support are included with the Subscription Fee. Company will make reasonable efforts to notify Licensee when updates to the software are available. It is Licensee’s responsibility to download the updates. Support will be provided according to the terms of Company current Software Maintenance and Services Agreement which may be modified by Company from time to time.

4.3 Evaluation Licenses

4.3.1 Evaluation Period

The Evaluation Period for the Software will begin on the day Licensee starts the Evaluation of the Software and ends according to the defined evaluation period. Such period will be defined by Company on a case-by-case base. Licensees are not allowed the concurrent use of more than one computing device.

5 Protection of Proprietary Rights

5.1 Right to use Licensed Products

Licensee acknowledges that no right, title, or interest, other than the right to use the Licensed Products, is transferred or granted by this Agreement. Licensee is prohibited from selling, renting, leasing, making available to third parties, and sublicensing the Licensed Products.

5.2 Open-Source Libraries

The use and operation of the Licensed Software may require the concurrent use of the Open-Source Libraries. Licensee acknowledges that Company shall be entitled to update the Open-Source Libraries, as the use of Open-Source Libraries varies upon each new release. Company represents and warrants that it has the right to authorize the use of such Open-Source Libraries by Licensee in conjunction with the Licensed Software, in full compliance with the licensing terms of such Open-Source Libraries. Where and to the extent required pursuant to the licensing terms of such Open-Source Libraries, Company will provide or make available a copy of the source code of such Open-Source Libraries to Licensee. Licensee's use of such Open-Source Libraries is governed by the terms of this Agreement, not the usual licensing terms of such Open-Source Libraries. Company represents and warrants that it is authorized to license the use of such Open-Source Libraries as per the terms of this Agreement. Licensee releases all third-party owners or licensors of such Open-Source Libraries of any and all liability flowing from representations, conditions, warranties and covenants made or provided pursuant to this Agreement that go above and beyond those representations, conditions, warranties and covenants made or provided under the usual licensing terms of such Open-Source Libraries, as applicable between Company and such third-party owners or licensors.

5.3 Third Party Libraries

Company Software include as components certain third-party software programs, which may be periodically updated and substituted. Company has all rights necessary for it to market and distribute the Third Party as Company Software components, as well as the right and authority to conclude this Agreement and to grant rights hereunder regarding the Third Party. Title to the Third Party remains with Gateway and/or their licensors.

5.4 Confidential Information

Licensee acknowledges that the Licensed Products constitute trade secrets, are furnished by Company to Licensee in confidence, and contain proprietary and confidential information. The placement, or non-placement of a copyright notice on any portion of the Licensed Products will neither be construed to mean that such portion has been published, nor derogate from any claim that such portion is a trade secret or contains proprietary and confidential information.

5.5 Nondisclosure

Licensee agrees that it will not, under any circumstances, except as expressly authorized hereby, distribute, or disseminate any information contained in or disclosed by the Licensed Products, including but not limited to any technical information, design concepts, processes, procedures, formulae or algorithms, to any person except to those of its employees and/or other users whose access is necessary for Licensee's use as set forth above.

Licensee will take appropriate action, by agreement or otherwise, with such employees and/or other users, to inform them of the trade secret, proprietary, and confidential nature of the Licensed Products so as to obtain their compliance with the terms of this section. In the event that Licensee, or any of its present or former employees and/or other users breach the confidentiality obligations of this Agreement, Licensee shall be jointly and severally liable to Company for any loss incurred by Company resulting directly or indirectly from such breach.

5.6 Restrictions on Copying

Licensee will hold the Licensed Products in strict confidence. Company hereby grants the Licensee the right to make copies of the Licensed Products for backup purposes only.

5.7 Reverse Engineering

Licensee is prohibited from reverse engineering, decompiling, disassembling, or creating any derivative work of the Licensed Products. Licensee shall not allow anyone to modify, disassemble, or decompile the Licensed Products, or create any derivative work in any possible way.

5.8 Relief

Licensee acknowledges and agrees that the Licensed Products, as well as all other information in whatever medium disclosed to Licensee hereunder, are unique and commercially valuable and that any breach by Licensee of the terms of this Agreement with respect to protection against disclosure or distribution of the Licensed Products or such information would result in an irreparable and continuing injury to Company for which money damages would be inadequate. In the event of such a breach or anticipated breach by Licensee, Company shall be entitled to immediate injunctive relief or any other recourse and to specifically enforce the terms of this Agreement, in addition to any other remedy to which Company may be entitled at law or in equity.

5.9 Non-Reproduction

Licensee agrees that it shall not use the Licensed Products to assist in the development or design of a computer software program or other technology that is intended to provide substantially similar or similar functionalities, or graphical user interfaces (GUI), substantially similar or similar to the Licensed Products.

5.10 Development of Utility

The Licensed Software shall not be used to develop, nor shall Licensee market, any conversion utility or aid specific to the Licensed Software enabling or facilitating users to convert from the Licensed Software to alternative software not marketed by Company.

6 Ownership and Copyright Protection

Company, its affiliates and suppliers retain all right, title, and interest in and to the Licensed Products. The Licensed Products are intellectual property of Company, its affiliates, and its suppliers. The Licensed Products are protected by law, including without limitation the copyright laws of Switzerland, the European Union, and other countries, and by international treaty provisions. Nexos is a trademark of Company. All other trademarks are the property of their respective owners. Licensee may not alter any trademarks, trade names, product names, logos, copyrights or other proprietary notices, legends, symbols, or labels in the Licensed Products. Licensee acknowledges that no right, title, or interest, other than the right to use the Licensed Products as described herein is transferred by the present Agreement.

7 Warranty

7.1 Ownership of Copyrights

Company warrants that it has the right to grant this license to use the Licensed Products as contemplated hereunder.

7.2 Infringement

Company will indemnify and hold harmless Licensee from and against any action brought against Licensee alleging that the Licensed Products infringe third-party intellectual property rights, to the extent that:

  1. Company is notified immediately in writing by Licensee of the claim;
  2. Company has sole control of the defence of the claim and all negotiations of any settlement or compromise, provided that any such settlement or compromise provide for the general release of all claims against Company;
  3. the claim is not based on the use of a Licensed Software's version other than the most recent and nonmodified version by Licensee;
  4. the Licensee has not prejudiced Company position's in any way by, without limiting the generality of the foregoing, its admissions and/or declarations.

Company shall have the opportunity, where a third party claims an infringement of its intellectual property, at all times, either before, during or after any proceedings, to provide the Licensee with the right to use such element of intellectual property or replace same in order to cease such infringement.

7.3 Nonapplication of Warranty

Paragraph 7.2 of this section is not applicable if the claim is based upon:

  1. the use of other than a current unaltered release of Licensed Software if the infringement would have been avoided by the use of a current unaltered release of Licensed Software;
  2. the combination, operation, or use of any Licensed Products with any programs or software not provided by Company, if the infringement would have been avoided by the combination, operation or use of Licensed Products with other programs, software or data; or
  3. the use of Licensed Software in other than the operating environment specified for it by Company if the infringement would have been avoided by use in the operating environment specified by Company.

7.4 Limitation of Warranty

Except as expressly provided in this section, Company makes no warranty, express or implied, with respect to the Licensed Products. Without limiting the generality of the foregoing, Company makes no warranty or merchantability or fitness for a particular purpose or that the Licensed Products are error free or that Licensee's use of the Licensed Products will be uninterrupted. Company will correct all errors discovered within a period of ninety (90) days from delivery, upon notification by Licensee, if the following conditions are and were always respected since delivery date:

  1. the error was properly reported through Company support channels and could be reproduced by Company.
  2. the Licensed Software is and was properly used as set forth in the Licensed Materials;
  3. the Licensed Products were not changed nor modified by Licensee or a third party upon Licensee's request.
  4. the Licensed Products have not been subjected to abnormal physical or electrical stress, misuse, negligence, or accident.

7.5 Prerelease Software Product

If the Licensed Software the Licensee has received with this Agreement is a precommercial release or beta Software ("Prerelease Software"), Licensee acknowledges that the Prerelease Software version does not represent the final product from Company, and may contain bugs, errors, and other problems that could cause system or other failures and data loss. Consequently, the Prerelease Software is provided to the Licensee "AS-IS", and Company disclaims any warranty or liability obligations of any kind to the Licensee.

8 Technical support

The User shall not be entitled to receive technical support for the Software unless it has entered into a separate support agreement with Company. Although every effort will be made to provide technical assistance in a timely manner, no guarantee or warranty is given that technical assistance will be given or, if it is given, that it will be accurate.

8.1 Subscription Licenses

Licensees of the subscription-based licensing model automatically enter Company support agreement.

9 Terms for Software Purchases

  1. All payments are non-refundable.
  2. With the purchase of a license the Licensee only buys the right to use the software according to this agreement exclusive any integration work.
  3. Subscription fees are due payable at the start of each subscription period according to section 4.2.1.

10 Termination

10.1 Default

Either party may terminate this Agreement upon written notice to the other party without advance notice if the other party materially breaches the terms of this Agreement and such default continues uncorrected for a period of ten (10) days after notice in writing thereof to such other party.

10.2 Bankruptcy or Insolvency

The fact that one of the parties becomes insolvent or is adjudged bankrupt; makes a proposal for the benefit of its creditors; has a receiver appointed; files a petition of bankruptcy; initiates reorganization proceedings; causes or permits to occur any similar event under the laws of its domicile; or ceases to conduct its operations in the normal course of business; or is wound up will be interpreted as a default under the terms of the present Agreement.

10.3 Effect of Termination

10.3.1 License

Upon termination, all licenses granted pursuant to this Agreement and any Maintenance and Support Agreement executed by both parties will cease.

10.3.2 Return and Destruction of Proprietary Information.

Licensee will immediately return to Company the Licensed Products and all whole or partial copies thereof, including all backup copies, modifications, and documentation thereof and purge all copies of the Licensed Products from all computer processors or storage media on which Licensee has installed or permitted others to install Licensed Products. Licensee will certify in writing to Company no later than thirty (30) days after termination that it has entirely complied with this requirement and that no Proprietary Information remains in its possession.

10.3.3 Compliance with Agreement Notwithstanding Termination.

Notwithstanding the termination of the present Agreement, Licensee agrees to comply with section 4 of said Agreement.

11 Limitation of Liability

IN NO EVENT WILL COMPANY, ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR (1) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR (2) ANY DAMAGES RESULTING FROM LOSS OF USE, OR LOSS OF DATA, OR LOSS OF PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE LICENSED PRODUCTS OR ANY INFORMATION PROVIDED HEREUNDER, WHETHER IN AN ACTION BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE. IN NO EVENT WILL COMPANY, ITS AFFILIATES OR SUPPLIERS TOTAL LIABILITY FOR ANY DAMAGES AWARDED IN ANY ACTION BASED ON CONTRACT OR TORT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT PAID FOR THE PRESENT LICENSE EVEN IF COMPANY, ITS AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY WILL NOT HAVE ANY LIABILITY FOR ANY DAMAGES ARISING FROM THE USE OF THE PRODUCTS IN ANY HIGH RISK ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT OR WEAPONS SYSTEMS.

12 Miscellaneous

12.1 Notice

Any notice, request, instruction, legal proceedings or other instrument to be given, served, or provided under this Agreement by either party shall be deemed given and received when in writing and delivered personally or five (5) days after being sent by certified or registered mail, postage prepaid, to Company or Licensee at the address of each as indicated below, provided that either party may change such address, only by written notice to the other party:

If to Company:

Current address of Company as mentioned on the invoice or as otherwise specified by Company.

If to Licensee:

Current address of Licensee as mentioned on the purchase order or as otherwise specified by Licensee.

12.2 Waiver

No delay or failure of either party in exercising any right and no partial single exercise of any right shall be deemed to constitute a waiver of that right or any other right under this Agreement. No action arising out of this Agreement, regardless of form, may be brought by either party more than one (1) year after the cause of action has accrued.

12.3 Severability

If any provision, or portion thereof, of this Agreement is declared invalid by a Court of law or is unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted.

12.4 No Assignment

The rights of Licensee under this Agreement may not be assigned, in whole or in part, and any attempted assignment of rights, duties or obligations hereunder without such consent shall be null and void.

12.5 Amendments and Modifications

This Agreement may not be amended, altered, or modified and no right hereunder may be waived except by a written agreement signed by authorized representatives of the parties.

12.6 Entire Understanding

This Agreement sets forth the entire understanding between the parties with respect to the matters set forth herein and supersedes all prior representations, understandings, or agreements, whether written or oral, express or implied, with respect thereto.

12.7 Governing Law

This Agreement is governed exclusively by the laws applicable in Switzerland. Notwithstanding any other agreement or provision to the contrary, the parties acknowledge that the license was acquired in the Canton of Solothurn, Switzerland. Any other treaty convention or contracts according to international laws or the United Nations Convention do not apply. The Licensee irrevocably agrees that the courts of the Canton of Solothurn, Switzerland shall have exclusive jurisdiction in relation to any claim, dispute, or difference concerning the present Agreement and any matter arising therefrom, and irrevocably waive any right that it may have to object to an action being brought in those courts, or to claim that the action has been brought in an inconvenient forum, or that those courts do not have jurisdiction. Nothing in this clause shall limit the right of Company to take proceedings against Licensee in any other court of competent jurisdiction.

12.8 Language

This Agreement is in English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall be for accommodation only and shall not be binding upon the Parties. All communications and notices to be made or given pursuant to this Agreement, and any dispute proceeding related to or arising hereunder, shall be in the English language. If there is a discrepancy between any translation of this Agreement and this Agreement, this Agreement shall prevail.

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