EyeDetect End User License Agreement | Converus

EyeDetect End User License Agreement | Converus

USE OF THE CONVERUS® EYEDETECT® PRODUCTS AND SOFTWARE (DEFINED BELOW) PROVIDED BY CONVERUS, INC. (“CONVERUS”) IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS (THE “EULA”). PLEASE READ THE EULA CAREFULLY BEFORE ACCESSING OR USING THE PRODUCTS OR SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THE EULA, DO NOT USE THE PRODUCTS OR SOFTWARE.

1. Products and Software.

1.1 Software License. Converus hereby grants you a nonexclusive, worldwide, non-transferable (except as permitted pursuant to Section 9.1), non-sublicensable, royalty-free license, during the Term (as defined in Section 8.1), to use the then-current version of the Software in connection with your use of the Converus hardware and other products you purchase from Converus or a Converus reseller (the “Products”) for your internal, non-commercial business purposes. As between you and Converus, Converus retains all right, title, and interest in and to the Software, including all IP Rights (as defined in Section 3.1). All rights not expressly granted to you are, as between the parties, reserved to Converus. The foregoing license includes Converus’ standard maintenance for the Software for 12 months from the date of your most recent purchase of a license key for the Software. Converus’ standard software maintenance consists solely of software fixes to correct material errors with the Software, plus such additional bug fixes, updates, enhancements, and other releases as Converus chooses to make generally available to its customers as a part of standard software maintenance. The term “Software” means the software and applications licensed to you by Converus under this EULA, regardless of whether provided for use on a standalone basis, embedded in or included with Products, or for integration and/or use with other equipment, hardware, software, or products, and including all Documentation (as defined in Section 1.6), bug fixes, updates, enhancements or other releases of any of the foregoing. For purposes of clarity, “Software” also includes any items owned or licensed by a party other than Converus, but that are sold, licensed, or provided by or through Converus under this EULA.

1.2 Technical Support. To report an error with the Products or the Software or to receive technical support regarding the Products and/or the Software, you shall first contact the applicable reseller of the Products and Software. In the event such reseller is unable to resolve your technical support issue, Converus shall provide technical support to you as set forth herein. Technical support is limited to Converus using good faith efforts to answer questions about the Software and/or Products during Converus’ normal business hours and is not a substitute for product training or project support.

1.3 Use and Restrictions. You covenant to only use the Products, Software, Converus Data (as defined in Section 1.6), and Customer Data (as defined in Section 1.6) in full compliance with this EULA and all applicable existing and future international, national, state, local, or other industry or governmental authority statutes, laws, rules, regulations, orders, codes, permits, authorizations, ordinances, and standards (“Applicable Law”). You may only use the Software (a) in accordance with the number of license keys you have purchased from Converus, (b) in conjunction with the Products, and (c) at a workstation that has a Product installed (except for the use of the “Administrative Console” features of the Software, which may be used on computers that do not have a Product installed). You may not use the Software to operate a service bureau, act as an application service provider or otherwise to benefit any third party. If you use the Software to conduct evaluations on any prospective, current or former employees or contractors, you agree to notify such individuals that such an evaluation is being conducted. You shall not: (i) reverse engineer, decompile, disassemble, modify, create derivative works of, or publicly display the Software for any purpose; (ii) attempt to derive the source code from the object code for the Software; (iii) attempt to defeat any license key used to activate the Software; (iv) remove or alter any proprietary notice on the Software; or (v) use any files included with the Software in any other application, unless you have first obtained the necessary developer licenses from Converus. Your use of the Software is subject to audit by Converus to ensure compliance with this EULA.

1.4 Third-Party Hardware and Software. You acknowledge that Converus purchases certain equipment and licenses certain software from third parties (including SensoMotoric Instruments GmbH (“SMI”)) in connection with Converus’ provision of the Products and licensing of the Software to you. As a condition to the delivery of Products and the licensing of Software hereunder, you agree to comply with SMI’s terms and conditions set forth on Exhibit A in all respects in connection with its use of the Products and the Software. In the event of a conflict between the terms of this EULA and the terms of Exhibit A, the terms of Exhibit A will control, but solely to the extent of such conflict and solely with respect to the portions of the Products and Software purchased and/or licensed by Converus from SMI.

1.5 Passwords; Security. You agree to carefully safeguard all of your passwords. You are solely responsible for all activities that occur under your account. You agree to immediately notify Converus of any unauthorized use of your account or any other breach of security.

1.6 Functionality. You acknowledge that you have had an opportunity to review the technical and user manuals and guides used in conjunction with the Products and Software (the “Documentation”), and you understand the functionality of the Products and Software and their uses in connection with your business. You assume full responsibility for the selection of the Software to support your business and achieve your intended results, as well as for the accuracy and completeness of (a) all Customer Data, and (b) all decisions made or actions taken based on the Customer Data or any content, data, measurements, results, or other information that arise out of, result from or are otherwise generated by your use of the Products or Software (excluding any Customer Data, the “Converus Data”). As used in this EULA, the term “Customer Data” means all content, data, measurements, results, and other information that arise out of, result from, or are otherwise generated by your use of the Products or Software that: (a) can be used to identify, contact, or locate a natural person, including name, gender, birth date, address, telephone number, email address, social security number (or non-U.S. equivalent), or driver’s license number; (b) contains profiles, identifiers, or demographic, biometric, or behavioral data that has the capacity to be linked to a specific person; or (c) is substantially equivalent to any of the foregoing.

1.7 Translations. Converus provides the Products and the Software to you in the language specified in the Documentation. You may not translate the Products or the Software. You may request a translation of the Products and/or the Software into a language other than the language specified in the Documentation, which Converus may provide in its sole discretion. If Converus provides such a translation of any of the Products or the Software, you shall only use the translated version provided by Converus and shall have no right to further translate or otherwise modify such Products or Software.

1.8 Confidentiality. You acknowledge that the Products, Software, Documentation, Audit Reports (as defined in Section 5.2) and all other information, data, documents, materials, works, and other content that are provided or used by Converus in connection with the Products or Software or otherwise comprise or relate to the Products or Software (excluding Customer Data) are the confidential information of Converus and are made available to you in strict confidence. Neither you nor any other person or entity connected with you shall directly or indirectly, without the express written consent of Converus, disclose the such confidential information to any third party.

2. Warranty. Converus warrants that for six months from the delivery of any Products and for 90 days from the delivery of any license keys for any Software (as applicable, the “Warranty Period”), such Products and Software will conform to their respective Documentation in all material respects. If you deliver notice to Converus during the Warranty Period that the Products or Software do not conform to the foregoing warranty, Converus shall, at its expense and option, repair, modify, or replace the Products or Software with Products or Software that comply with the foregoing warranty or, shall refund you the amounts you paid for the applicable Products or Software.

3. Data.

3.1 Ownership and License of Customer Data. You own all right, title, and interest in and to the Customer Data, including all IP Rights therein. As used in this EULA, the term “IP Rights” means intellectual property rights and protections throughout the world, whether currently or hereafter recognized, including all: (a) patents, patent applications, and statutory invention registrations (including any reissuances, reexaminations, divisions, continuations or continuations-in-part); (b) trade secret rights under Applicable Law, know-how, proprietary information, concepts, and techniques; (c) copyrights, software (including all source and object code, documentation, technical data, specifications, and designs and any changes, improvements, or modifications thereto or derivatives thereof), designs, and mask works; (d) rights in databases; (e) proprietary indicia, trademarks, service marks, trade names, trade dress, logos, and Internet domain names, together with all goodwill associated therewith; (f) moral rights, rights of privacy, rights of publicity, and similar rights; and (g) any other proprietary rights and protections, including, in each case, all applications and registrations related thereto. You hereby grant to Converus a nonexclusive, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual, royalty-free, fully paid-up license, during the Term and at all times thereafter, to use the Customer Data for Converus’ business purposes, including the development and exploitation of additional products and services.

3.2 Processing of Customer Data. If you provide or otherwise make Customer Data accessible to Converus, you authorize and request that Converus access, use, store, transfer, and otherwise process, such Customer Data. Converus shall not use Customer Data for purposes other than those set forth in this EULA or as instructed by you. Converus will comply with the Converus Global Privacy Policy, which is available at https://converus.com/privacy-policy/. You acknowledge and agree that the control of Customer Data shall at all times remain with you. You are responsible for compliance with your obligations as the controller of Customer Data under Applicable Law with respect to the processing of Customer Data and all other applicable data protection laws. You represent and warrant that, at all times during the Term, you will instruct Converus to access, use, store, and otherwise process Customer Data only on your behalf and only in accordance with this EULA and Applicable Law.

3.3 Sensitive Personal Data. You may not provide or otherwise make accessible to Converus any payment card information, data concerning an individual’s race or ethnic origin, nationality, political or religious beliefs, trade union membership, health or sexual life, or any other information or data that imposes specific security and/or other obligations on Converus under Applicable Law in connection with the processing of such data without Converus’ prior consent.

3.4 Authority and Consent. With respect to Customer Data that you provide or otherwise make accessible to Converus, you represent and warrant that: (a) you have obtained all necessary authority to do so; and (b) you have obtained from the individuals concerned all necessary consents under Applicable Law to both the provision and transfer of such Customer Data to Converus and the processing of such data by Converus for the purposes of performance of this EULA, Converus’ business purposes, and as otherwise set forth in this EULA.

3.5 Ownership and License of Converus Data. As between you and Converus, Converus owns all right, title, and interest in and to the Converus Data, including all IP Rights therein. If you are deemed to have any ownership interest in any Converus Data, then you shall assign, and hereby do assign, irrevocably and on a royalty-free basis, all of such ownership interest or other rights exclusively to Converus. You shall, at Converus’ reasonable request and expense, execute and deliver all documents necessary to effect or perfect such assignments. Converus hereby grants you a nonexclusive, worldwide, non-transferable (except as permitted pursuant to Section 9.1), non-sublicensable, royalty-free, fully paid-up license, during the life of the Products, to use the Converus Data for your internal, non-commercial business purposes.

4. Export Matters. The Software and underlying information or technology are subject to U.S. export control laws, including the International Economic Emergency Powers Act, the Export Administration Act, regulations issued pursuant to these laws, and certain regulations promulgated by the United States Department of Treasury Office of Foreign of Assets Controls, all as amended (the “Export Control Laws”). You shall not download, export, re-export or otherwise transfer, directly or indirectly, the Software in violation of the Export Control Laws. By using the Software, you acknowledge that (a) you are responsible for obtaining any necessary U.S. government authorization to ensure compliance with U.S. Export Control Laws, and (b) you can contact the U.S. Departments of Commerce and Treasury for guidance as to applicable licensing requirements and other restrictions.

5. Security.

5.1 Security Measures. Converus has implemented and will maintain reasonable administrative, physical, and technical safeguards intended to protect Customer Data against accidental loss, destruction, or alteration or unauthorized disclosure or access. Such measures include: (a) physical access controls and access controls on information systems, including secure user authentication protocols, secure access control methods, firewall protection, and malware protection; (b) encryption of electronic information to the extent required by Applicable Law; (c) employee background checks for individuals with responsibilities for or access to Customer Data; (d) measures to protect against destruction, loss, or damage to Customer Data due to potential environmental hazards, such as fire and water damage, or technological failures; and (e) training to implement such information security measures.

5.2 Audits. Converus will, at least once each calendar year and at no cost to you, obtain a SOC 2 Type 2 audit, report, attestation, and opinion (or equivalent audit, report, attestation, and opinion) from an independent public accounting firm that evaluates the design and operating effectiveness of the computers and computing environment that Converus uses in the processing of Customer Data and the facilities in which Converus processes Customer Data (an “Audit”). Converus will provide you the reports from such Audits (each, an “Audit Report”) upon written request. Converus will use commercially reasonable efforts to remediate (a) any errors identified in an Audit Report that could reasonably be expected to have an adverse impact on your use of the Products or Software, and (b) material control deficiencies identified in the Audit Report.

5.3 Security Incidents. If Converus becomes aware of any unlawful access to any Customer Data stored on Converus equipment or in Converus’ facilities, or unauthorized access to such equipment or facilities resulting in loss or unauthorized disclosure or alteration of Customer Data (each, a “Security Incident”), Converus will promptly, subject to any reasonable restrictions placed on Converus by any law enforcement agency in the process of conducting an investigation relating thereto: (a) notify you of the Security Incident; (b) investigate the Security Incident and provide you with detailed information about the Security Incident; and (c) take commercially reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident. You agree that: (i) an Unsuccessful Security Incident will not be subject to this Section; and (ii) Converus’ obligation to report or respond to a Security Incident under this Section is not and will not be construed as an acknowledgement by Converus of any fault or liability with respect to the Security Incident. The term “Unsuccessful Security Incident” means a Security Incident that does not result in unauthorized access to Customer Data or to any of Converus’ equipment or facilities storing Customer Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers) or similar incidents.

6. Indemnification. You shall defend, indemnify, and hold harmless Converus, its Affiliates (as defined in Section 9.1), and their respective directors, officers, employees, agents, consultants, successors, and assigns against all liabilities, damages, awards, settlements, losses, claims, and expenses, including reasonable legal fees and costs of investigation (collectively, “Losses”) arising out of third-party claims, suits, actions, or proceedings (each, a “Claim”) resulting from or arising out of: (a) your use of the Products, Software, Converus Data, or Customer Data or other acts or omissions in violation of this EULA or Applicable Law, including your failure to comply with the requirements of Section 3.4; (b) an allegation that any Customer Data or Converus Data is inaccurate, misleading, or deceptive or was misused or relied on incorrectly by you; or (c) any allegations, demands, or claims from any of your prospective, current, or former employees or contractors that use the Products or Software as required or requested by you or under your direction. In the event of a Claim by a third party with respect to which Converus is entitled to indemnification under this EULA, Converus shall promptly notify you of such Claim; provided, however, that any failure to make such prompt notification shall not relieve you of your obligations hereunder unless your ability to defend such Claim is materially prejudiced thereby. You shall have sole control over the defense of the Claim and any negotiation for its settlement or compromise, except that you shall not settle any such Claim without first obtaining Converus’ prior consent where the settlement of such Claim results in any admission of guilt or liability on the part of Converus, imposes any obligation or liability on Converus, or has a judicially binding effect on Converus (other than monetary liability for which Converus is indemnified by you). Converus may participate in any Claim using its own counsel at its own expense.

7. Limitation of Liability.

7.1 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, CONVERUS DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND ANY WARRANTY THAT THE PRODUCTS OR SOFTWARE WILL PROVIDE UNINTERRUPTED OR ERROR-FREE OPERATION, MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR OPERATE SATISFACTORILY IN CONJUNCTION WITH OTHER MANUFACTURERS’ HARDWARE OR SOFTWARE.

7.2 No Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS EULA, REGARDLESS OF THE FORM OF ACTION AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. For the avoidance of doubt, you agree that any Losses awarded against Converus, or agreed to in settlement in connection with a Claim indemnified hereunder, are direct damages.

7.3 Limitation. EXCEPT FOR YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER, OR (b) LOSSES DUE TO A BREACH OF SECTION 1.8, THE AGGREGATE LIABILITY OF EITHER PARTY UNDER THIS EULA SHALL NOT EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID BY YOU FOR THE PRODUCTS AND SOFTWARE AT THE TIME SUCH CLAIM AROSE.

8. Term and Termination.

8.1 Term. This EULA shall commence on the date you first accept it and shall continue in full force and effect until terminated pursuant to the provisions hereof (the “Term”).

8.2 Right to Terminate. This EULA may be terminated: (a) immediately upon notice to the other party if (i) the other party materially breaches this EULA and, where such breach is remediable, fails to remedy such breach within 30 days of receipt of notice from the terminating party specifying such material breach, or (ii) the other party has a receiver appointed, makes an assignment for the benefit of creditors, is unable to pay its debts as they become due, or undergoes any other insolvency event; and (b) by you upon 60 days’ notice to Converus for any reason or no reason.

8.3 Effect of Termination. Immediately upon termination of this EULA, you shall cease using the Software and shall delete or destroy all copies of the Software (including any Documentation or other information related to the Software provided by Converus) and, upon request, shall deliver to Converus a certification in writing that you have deleted or destroyed all copies of the Software and Documentation, and ceased all use of the Software, Converus Data, and Customer Data. Termination of this EULA will not prejudice or affect any right of action or remedy that has accrued or will accrue to either party due to the other party’s acts or omissions prior to the effective date of the termination. The provisions of this EULA which by their nature are intended to survive the termination of this EULA (including the provisions of Section 1 (except for the license granted to you therein), Section 3 (except for the license granted to you in Section 3.5), Section 4, Section 6, Section 7, Section 8.3, and Section 9) shall survive the termination of this EULA.

9. General Terms.

9.1 Assignment. Neither party shall delegate or assign any duties, rights or claims under this EULA without the other party’s prior consent, except that either party may, upon notice to the other party, assign this EULA in its entirety to (a) an Affiliate, or (b) any successor entity in the event of such party’s transfer of all or substantially all of its assets or stock, merger, spin-off, consolidation, reorganization, or other business combination; provided, however, that in any of the foregoing events, to the extent the assignor has incurred obligations prior to the date of such assignment, the assignor shall not be relieved of any of such obligations hereunder except to the extent performed or satisfied by the assignee. Any delegation or assignment in violation of this Section 9.1 shall be void. This EULA shall be binding upon and shall inure to the benefit of the parties hereto, their respective successors and permitted assigns. The term “Affiliate” means with respect to a party on any date of determination, any other entity directly or indirectly controlling, controlled by or under common control with such party as of such date, and the term “control” (including any correlative usages) means (a) the legal, beneficial or equitable ownership, directly or indirectly, of at least 50% of the equity interests, or (b) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies or the election of at least 50% of the board of directors or comparable governing body, whether through the ownership of voting securities, by contract or otherwise.

9.2 Publicity. Converus may use your name on its publicly available list of customers. Other than as expressly set forth in this Section, neither party will issue any press release or public announcement or make any public disclosure (including promotional or marketing materials or customer lists, and regardless whether in the form of news releases, advertising or solicitation materials, or blog or social media postings) regarding the existence or terms of this EULA or the Products or Software without the prior consent of the other party; provided, however, that the foregoing will not prohibit informational releases intended solely for a party’s internal distribution.

9.3 Force Majeure. Neither party will be responsible for its failure to perform under this EULA due to causes beyond its reasonable control, including acts of God, fire, theft, war, riot, embargoes, or acts of civil or military authorities (“Force Majeure Event”). Upon the occurrence of any Force Majeure Event that will affect a party’s performance under this EULA, the affected party shall promptly give notice to the other party.

9.4 Equitable Remedies. You acknowledge that if you breach this EULA, Converus may have no adequate remedy at law and will suffer irreparable harm as a result of such a breach and will therefore be entitled to equitable remedies, including injunctive relief, without the obligation of posting a bond.

9.5 Use by the U.S. Government; Restricted Rights. The Products and Software provided under this EULA are commercial items, as defined in FAR 2.101, developed exclusively at private expense, used for nongovernmental purposes, and licensed to the public. Any use by the U.S. Government of the Products or Software shall be in accordance with this EULA, as stated in FAR 12.212. If the U.S. government is deemed to have use rights under FAR 52.227 or DFARS 227, all use, duplication, and disclosure by civilian agencies of the U.S. Government shall be in accordance with FAR 52.227-19, and all use, duplication and disclosure by Department of Defense agencies is subject solely to the terms of this EULA, as stated in DFARS 227.7202.

9.6 Governing Law. This EULA shall be governed in all respects by the laws of the State of New York (except that any conflicts-of-law principles of such state that would result in the application of the law of another jurisdiction shall be disregarded). The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

9.7 Construction. The headings and captions used in this EULA are used for convenience only and are not to be considered in construing or interpreting this EULA. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms. All references to this EULA and the words “herein,” “hereof,” “hereto,” and “hereunder” and other words of similar import refer to this EULA as a whole and not to any particular Exhibit, Section, or other subdivision. Both parties hereby waive any canon of construction that would require any portion of this EULA to be construed against the drafter thereof. The governing language of this EULA shall be English. If this EULA is translated into a language other than English, then the English version shall prevail.

9.8 Miscellaneous. This EULA constitutes the entire agreement between you and Converus with respect to the subject matter herein and supersedes any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written. No amendment, modification or waiver of any of the provisions of this EULA shall be binding unless made in writing and signed by an authorized representative of each party. No implied licenses are granted pursuant to the terms of this EULA. No license rights shall be created by implication or estoppel. Converus’ failure to exercise or enforce any right or provision of this EULA will not constitute a waiver of such right or provision. No remedy referred to in this EULA is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available at law or in equity. If any provision of this EULA is held to be invalid or unenforceable, the remainder of this EULA shall remain in full force and effect.

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EXHIBIT A – ADDITIONAL LICENSE TERMS

LICENSE AGREEMENT

IMPORTANT – PLEASE READ CAREFULLY: This license agreement (“Agreement”) is an agreement between you (either an individual or a company, “Licensee”) and SensoMotoric Instruments GmbH (“SMI”). The “Licensed Materials” provided to Licensee subject to this Agreement include the software programs, which were installed on the equipment Licensee purchased from SMI (the “Designated Equipment”) at the time of delivery of the Designated Equipment and/or other software programs SMI has granted Licensee access to (the “Software”) as well as any “on-line” or electronic documentation associated with the Software, or any portion thereof (the “Documentation”), as well as any updates or upgrades to the Software and Documentation, if any, or any portion thereof, provided to Licensee at SMI’s sole discretion. By installing, downloading, copying or otherwise using the Licensed Materials, you agree to abide by the following provisions. This Agreement is displayed for you to read prior to using the Licensed Materials.

If you do not agree with these provisions, do not download, install or use the Licensed Materials. If you have already paid for the Licensed Materials, you may return them for a full refund to: SensoMotoric Instruments, Warthestraße 21, 14513 Teltow, Germany. If the Licensed Materials were installed on Designated Equipment, you may also return such Designated Equipment for a full refund.

1. License. Subject to the terms of this Agreement, SMI hereby grants and Licensee accepts a nontransferable, non-exclusive, non-assignable license without the right to sublicense to use the Licensed Materials only (i) for Licensee’s business operations, (ii) on the Designated Equipment, if any, or on a back-up equipment while the Designated Equipment is inoperable, and (iii) in accordance with the Documentation. Licensee may make one copy of the Software in machine readable form for backup purposes only; every notice on the original will be replicated on the copy. Installation of the Software, if any, is Licensee’s sole responsibility. License is subject to Licensee providing to SMI from time to time certain data that is collected by the Licensed Materials (“Performance Data”) for purposes of quality control and improvement.

2. Rights in Licensed Materials. Title to and ownership in the Licensed Materials and all proprietary rights with respect to the Licensed Materials and all copies and portions thereof, remain exclusively with SMI. The Agreement does not constitute a sale of the Licensed Materials or any portion or copy of it. Title to and ownership in Licensee’s application software that makes calls to but does not contain all or any portion of the Software remains with Licensee, but such application software may not be licensed or otherwise transferred to third parties without SMI’s prior written consent.

3. Confidentiality. Licensed Materials and Performance Data are proprietary to SMI and constitute SMI trade secrets. Licensee shall maintain Licensed Materials and Performance Data in confidence and prevent their disclosure using at least the same degree of care it uses for its own trade secrets, but in no event less than a reasonable degree of care. Licensee shall not disclose Licensed Materials and Performance Data or any part thereof to anyone for any purpose, other than to its employees and sub-contractors for the purpose of exercising the rights expressly granted under this Agreement, provided they have in writing agreed to confidentiality obligations at least equivalent to the obligations stated herein.

4. No Reverse Engineering. License shall not, and shall not allow any third party to, decompile, disassemble or otherwise reverse engineer or by any means whatsoever attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Software or of any files contained or generated using the Software. The obligations under this Section shall survive any termination of the Agreement. Licensee may apply to SMI at the address above for further information on the interface between the Software and other applications; SMI will on reasonable terms and conditions provide such information as the Licensee may reasonably require to enable the Software to interoperate with its applications.

5. Warranty.

a) If Licensed Materials show a defect during the limitation period specified in Sec. 5 d), which already existed at the time of transfer of risk, SMI will provide Licensee with a corrected version of such defective Licensed Material (“Repeat Performance”).

b) Licensed Materials are defective, if they do not conform to the written agreement between SMI and Licensee, if any, or to SMI’s specification.

c) Licensee’s claims for defects are excluded:
• for insignificant divergences from the agreement or specification;
• for damages caused after the transfer of risk by external influences such as fire, water, currency surge, etc.; improper installation, operation, use or maintenance; use in fields of application and environmental conditions other than those expressly specified by SMI; and use in combination with other products not approved by SMI for this purpose, excessive stress or normal wear and tear;
• for defects of the Software, which cannot be reproduced;
• for Licensee’s or a third party’s modifications of Licensed Materials and results therefrom;
• in as far as Licensee has not notified SMI of apparent defects within 5 business days of delivery and of hidden defects within 5 business days of discovery.
• If Licensee does not provide Performance Data as per Section 1 to SMI.

d) The limitation period for warranty claims is 12 months. This does not apply in cases of fraud, intent, gross negligence and personal injury. Repeat performance does not restart the limitation period.

e) Licensee has to always first provide SMI the opportunity for Repeat Performance within a reasonable period of time. Repeat Performance does not constitute acceptance of a legal obligation.

f) If the Repeat Performance fails even within an additional period of time of reasonable length to be granted by Licensee, Licensee shall, notwithstanding its claims under Section 6, if any, be entitled to rescind the contract or to claim a price reduction.

g) If the analysis of an alleged defect shows that it is not covered by the above warranty, SMI may charge for the failure analysis and correction of the defect, if any, at SMI’s then applicable rates.

6. Liability Limitations.

a) SMI is only liable for damages caused by slight negligence if such are due to a material breach of duty, which endangers the achievement of the objective of the Agreement, or the failure to comply with duties, the very discharge of which is an essential prerequisite for the proper performance of the Agreement.

b) In cases of Section 6 a), the liability is limited to the damage, which is typical for contracts like this Agreement and which could have been foreseen.

c) SMI’s liability is also limited to the damage, which is typical for contracts like this Agreement and which could have been foreseen for damages caused by the gross negligence of an agent or an employee of SMI, who is not an officer or executive of SMI.

d) In cases of Sections 6 a) and c), SMI’s liability is limited to a maximum amount of EURO 500.000, respectively EURO 100.000 for financial losses.

e) Licensee’s claims for damages caused by slight negligence or caused by the gross negligence of an agent or an employee of SMI, who is not an officer or executive of SMI, which are not based on defects and thus not subject to time-barring in accordance with Sec. 5 d) are time barred at the latest 2 years from the point in time Licensee became aware of the damage and regardless of Licensee’s awareness at the latest 3 years after the damaging event.

f) With the exception of liability under the Product Liability Law, for defects after having given a guarantee, for fraudulently concealed defects and for personal injury, the above limitations of liability shall apply to all claims, irrespective of their legal basis, in particular to all claims based on breach of contract or tort.

g) The above limitations of liability also apply in case of Licensee’s claims for damages against SMI’s employees or agents.

7. SMI Indemnity. SMI will defend or settle any action brought against Licensee to the extent based on a claim that Licensed Materials, used within the scope of the license granted in this Agreement, infringe any copyright valid in the European Union or the European Economic Area and will pay the cost of any final settlement or judgment attributable to such claim, provided (i) Licensee has given prompt notice to SMI of such claim, (ii) Licensee has not recognized an infringement of the third party’s copyright, and (iii) the entire defense and the settlement negotiations are reserved for SMI with Licensee’s full cooperation and support. If Licensee discontinues the use of Licensed Materials for damage reduction or other important reasons, Licensee is obligated to point out to the third party that the discontinuation of use does not constitute an acknowledgement of a copyright infringement. If SMI believes Licensed Materials are likely to be the subject of an infringement claim, it may elect to replace or modify such Software or Documentation to make it non-infringing or terminate the Agreement on written notice to Licensee. SMI shall have no obligation to defend (or any other liability) to the extent any claim involves a Software release other than the current, unaltered release, if such would have avoided infringement, or use of the Software in combination with non-SMI programs or data, unless the infringement would also incur without such combination. The foregoing states the entire obligation and liability of SMI with respect to any infringement by Licensed Materials of any intellectual property rights or other proprietary rights of Licensee or a third party without prejudice to any claims for damages in accordance with Section 6.

8. Licensee Indemnity. Licensee will defend and indemnify SMI, and hold it harmless from all costs, including attorney’s fees, arising from any claim that may be made against SMI by any third party as a result of Licensee’s use of Licensed Materials, excluding claims for which SMI is obligated to defend or indemnify Licensee under Section 7.

9. Export Restriction. Licensee will not remove or export from Germany or from the country Licensed Materials were originally shipped to by SMI or re-export from anywhere any part of the Licensed Materials or any direct product of the Software except in compliance with all applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce.

10. Non-Waiver; Severability; Non-Assignment. The delay or failure of either party to exercise any right provided in this Agreement shall not be deemed a waiver. If any provision of this Agreement is held invalid, all others shall remain in force. Licensee may not, in whole or in part, assign or otherwise transfer this Agreement or any of its rights or obligations hereunder.

11. Termination. This Agreement may be terminated without any fee reduction (i) by Licensee without cause on 30 days’ notice; (ii) by SMI, in addition to other remedies, if Licensee fails to cure any breach of its obligations hereunder within 30 days of notice thereof; (iii) on notice by either party if the other party ceases to do business in the normal course, becomes insolvent, or becomes subject to any bankruptcy, insolvency, or equivalent proceedings. Upon termination by either party for any reason, Licensee shall at SMI’s instructions immediately destroy or return the Licensed Materials and all copies thereof to SMI and delete the Software and all copies thereof from the Designated Equipment.

12. Entire Agreement; Written Form Requirement. There are no separate oral agreements; any supplementary agreements or modifications hereto must be made in writing. This also applies to any waiver of this requirement of written form.

13. Notices. All notices under the Agreement must be in writing and shall be delivered by hand or by overnight courier to the addresses of the parties set forth above.

14. Applicable Law and Jurisdiction. German law applies with the exception of its conflict of laws rules. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded The courts of Berlin, Germany, shall have exclusive jurisdiction for any action brought under or in connection with this Agreement.