Silexica End-User License Agreement (Version 170616)

This End-User License Agreement (“EULA”) represents the agreement on the licensing and use of the software by Silexica GmbH (“Licensor”) which includes the SLX Tools Suite and all versions, features, applications and modules thereto (“Licensed Products”) by you (“Licensee”). This EULA also covers the rights to use and handling of any associated media, printed materials and electronic documentation that Licensor makes available to Licensee.

This EULA contains general terms in Part A and specific terms for the different license and Support Service options in Part B. Support Services may be offered together with a perpetual or subscription based license or on a stand-alone basis. In case of contradictions, the terms of Part B shall prevail those of Part A.

BY CLICKING “I ACCEPT” OR DOWNLOADING OR OTHERWISE USING OUR SOFTWARE, YOU AGREE TO ALL TERMS AND CONDITIONS OF THIS EULA.

Part A – General Terms

1 Scope of the EULA

1.1 Subject to the terms and conditions of this EULA, Licensor agrees with Licensee to license the Licensed Products and/or to receive product support and training (“Support Services”) from Licensor. The Licensed Products and agreed Support Services are set forth in your individual agreement (“Agreement”) which is usually concluded on the basis of an order form and in any case on the basis of this EULA.

1.2 Licensee shall only be allowed to have as many users simultaneously accessing or running any of the Licensed Products at any given time (“Seats”) as specified in your Agreement. The Licensed Products shall be provided in the software version currently available on the Effective Date and shall comply with the product specifications (“Product Specifications”) set forth in your Agreement.

2 Grant of Rights

2.1 Licensor hereby grants Licensee the non-exclusive, non-transferable and non-sublicenseable right to use the Licensed Products in its ordinary course of business and to install the Licensed Products on any workstation controlled by Licensee; provided, however, that in no event the number of users who are accessing or running any of the Licensed Products at the same time (i.e., concurrent users) shall exceed the number of Seats as agreed in your Agreement. Depending on your individual Agreement, the right to use the Licensed Products is restricted to (a) the agreed local geographic locations or physical sites (“Sites”) or (b) to the wide area network (“WAN”) as defined in the Agreement. Unless stated otherwise within the Agreement, a WAN license only covers the respective region it was agreed for. The Licensed Product may be used by users in your WAN, who are located at one of your facilities within the respectively agreed region.

2.2 The aforementioned usage right will either be granted on a perpetual basis (see Section 16), on a temporary basis in case of a subscription (see Section 14) or for the evaluation (see Section 13) of the Licensed Products.

2.3 Licensee shall, however, be allowed to transfer licenses to any entity which (i) is owned directly or indirectly by either Licensee by at least fifty percent (50%) of the voting stock or other equity interest thereof; (ii) owns, directly or indirectly at least fifty percent (50%) of the voting stock of Licensee; or (iii) is owned directly or indirectly by a person, firm, corporation or other entity that owns, directly or indirectly, at least fifty percent (50%) of the voting stock or other equity interest of Licensee. Licensee shall inform Licensor immediately of any such transfer of its licensed rights.

2.4 For the avoidance of doubt, Licensee shall not be allowed to, sell, lease, lend, license or sublicense, copy, make publicly available, edit or reverse engineer the Licensed Products or to use the Licensed Products with more users simultaneously at any given time than the number of Seats agreed upon in your Agreement. This includes, but is not limited to the provided executable file containing the Licensed Products.

2.5 Licensee acknowledges that all intellectual property rights in and to the Licensed Products are the sole property of Licensor and that Licensee shall have no right or title in or to the Licensed Products other than those explicitly granted under this EULA

3 Delivery and Installation of the Licensed Product

3.1 The Licensed Products as well as the accompanying software documentation shall be made available to Licensee via internet download or, at Licensors discretion, in hard copy form within two weeks after the Effective Date and subject to Licensee following Licensor’s instructions regarding the copy protection system, if any. In case of a delivery via internet download, Licensor shall provide a download link to the Licensee leading to a downloadable and machine-readable form of the Licensed Products and a download link to the software documentation (electronic document). The download link shall be provided via E-Mail to the E-Mail Account stated in your Agreement.

3.2 Installation of the Licensed Products shall be the sole responsibility of Licensee. Licensor shall have no obligation to install or configure the Licensed Products on Licensee’s workstations. Licensee shall be solely responsible for providing a system environment in accordance with the system requirements set forth in the Product Specifications.

3.3 The Licensed Products are protected by a copy protection system, such as a license server, a license dongle or a license file, and the execution of the Licensed Products is only possible by adhering to Licensor’s instructions. Licensor shall provide respective instructions to Licensee within two weeks after the Effective Date. Licensee may especially be instructed to install and maintain a license server as defined by Licensor prior to any delivery and/or installation of Licensed Products. It is at the sole discretion of Licensor to define the copy protection system and also to change the copy protection system at any time during the term of this agreement. In case the Licensed Products are restricted to be used on a specific workstation and Licensee wishes to change the workstation on which the Licensed Products are installed, Licensee shall inform Licensor of such intention and follow Licensor’s instructions with regard to the de-installation and new installation of the Licensed Products. Upon installment of the Licensed Products on the new workstation, the use of the Licensed Products on the old workstation shall be excluded.

3.4 In case Licensor provides hard copies of the Licensed Products, all such copies of the Licensed Product shall remain the sole property of Licensor. Upon breach or termination of contract by Licensee, in particular on default of payment, Licensor shall be entitled to require that, at Licensee’s expense, all copies of the Licensed Products are returned to Licensor or, if applicable, to demand the assignment of Licensee’s right of return such copies against any third party. In such case and upon Licensor’s request Licensee shall confirm in writing that none of the copies of the Licensed Product provided by Licensor or copies thereof have been retained and that all installations of the Licensed Product have been irrevocably deleted from Licensee’s or a third party’s systems.

4 License and Support Service Fees

4.1 The fees owed by Licensee to Licensor for the grant of rights shall be calculated on the basis of the Licensed Products, the number of Seats, and the respective prices agreed upon in your Agreement.

4.2 The fees for the Support Services owed by Licensee to Licensor are subject to the specifications in your Agreement.

4.3 Unless explicitly stated otherwise in your Agreement, Licensor shall invoice agreed one-off fees at the conclusion of the Agreement which is the basis for such fees. In case of recurring fees, e.g. for a subscription based license or the provision of Support Services, Licensor shall invoice such fees in advance for each contractual month at its beginning.

4.4 All invoices shall be due for payment without deduction within 30 days from the date of the invoice. If Licensee is in default of payment and Licensee fails to pay after a respective warning and a reasonable period set by Licensor therein, Licensor shall be entitled to charge interest on the outstanding amount at the rate of nine percentage points over the then current base interest rate. Licensor’s right to claim further damages shall remain unaffected.

4.5 All prices are excluding any taxes, if applicable, unless explicitly stated otherwise. Where applicable, the current rate of statutory Value Added Tax shall be invoiced and paid in addition to all fees. Licensee will be solely responsible for paying all taxes (including sales, use, consumption, withholding, and value-added taxes and similar taxes), other than Licensor’s income taxes, that are imposed on or result from Licensee’s purchase, license, or use of Licensor’s products and services. If Licensor is required by law to collect and remit any such taxes, Licensor may invoice Licensee for such taxes and Licensee agree to pay the invoiced amount to Licensor. If Licensee is required by the respective jurisdiction where the Licensed Products are used, or where services are provided, to withhold taxes from payments to Licensor, Licensee may withhold from the total amount due to Licensor or the respective Licensor distributing entity the minimum amount required. Licensee may only withhold taxes related to a payment at the time of such payment. Licensee must then promptly pay that amount to the appropriate tax authority and provide Licensor with an official receipt for the payment within 60 days of Licensee’s payment.

5 Updates and Bugfixes

5.1 Licensor may from time to time provide bugfixes and updates to Licensed Products at its discretion (unless required as to Section 6) and free of charge. Such bugfixes or updates shall be installed by the Licensee.

5.2 In addition, Licensor may, at its discretion, develop and offer upgrades to the Licensed Products, which include major additions in functionality of the Licensed Products. Upgrades may be licensed from Licensor separately.

5.3 For the avoidance of doubt, Licensee shall only be entitled to Support Services (cf. Section 17) in case such have been agreed between the parties.

6 Defects

6.1 The Licensed Products provided by Licensor shall be in accordance with the Product Specifications. Rights in case of defects shall be excluded in case of minor or immaterial deviations from the agreed or assumed characteristics or in the case of just slight impairment of use. Product descriptions shall not be deemed guaranteed unless separately agreed in writing. With respect of updates, bugfixes, upgrades and new versions of the Licensed Products, Licensee’s rights in case of defects shall be limited to the new features of the update, upgrade, bugfix or new version compared to the previous version release. In case Licensee fails to implement an update, bugfix, upgrade or new version provided by Licensor in accordance with the Product Specifications, Licensee’s rights in case of a defect shall be excluded unless Licensee can demonstrate that the defect would have occurred irrespective of the implementation of an update, bugfix, upgrade or new version.

6.2 Licensee shall notify Licensor immediately of any defects of the Licensed Products discovered. Defects must be notified in text form with a comprehensible description of the error symptoms, as far as possible evidenced by written recordings, hard copies or other documents demonstrating the defects. The notification of the defect should enable the reproduction of the error. This shall not affect the statutory obligation of Licensee to inspect and notify defects.

6.3 In case of a defect, Licensor shall use reasonable efforts to remedy the defect in due time. The parties agree that Licensor may at its discretion resolve the defect through the provision/delivery or installation of a bugfix, update, new program version or a work-around.

6.4 Amendments or additions to the Licensed Products, as well as any use of the Licensed Products outside of the Product Specifications by Licensee or a third party results in a waiver of Licensee’s rights in case of defects, unless Licensee can demonstrate that the amendment or addition did not cause or foster the defect. Licensor shall also not be responsible for defects, which are caused by improper use or improper operation or the use of unsuitable means of operation by Licensee.

6.5 Licensor may refuse to remedy defects or deliver replacements, until Licensee has paid the agreed fees to Licensor, less an amount, which corresponds to the economic value of the defect.

7 Rights in Case of Defects in Title

7.1 The software delivered or provided by Licensor shall be free from third party rights, which prevent the use in accordance with this EULA.

7.2 In case a third party asserts claims against Licensee based on an alleged infringement of its rights by the Licensed Products, Licensee and Licensor shall work closely together and agree on a joint strategy to deal with the claim.

7.3 To the extent that there are defects in title, Licensor is entitled at its discretion to either (i) take legitimate measures to remove the third party rights, which impair the contractual use of the affected software, or (ii) remedy the enforcement of such claims, or (iii) change or replace the affected software in such a manner, that it no longer infringes the rights of third parties, provided and to the extent that this does not substantially impair the Product Specifications of the Licensed Products.

7.4 Section 6.5 shall apply accordingly.

8 Third Party Software

The Licensed Products contain third party software including open source software (“Third Party Software“). Parts of such Third Party Software are exclusively subject to deviating license terms (“Third Party License Terms“); such Third Party Software and its respective Third Party License Terms are listed in a directory available at www.silexica.com/tps. Nothing in this EULA is intended to impose further restrictions on Licensee’s use of such Third Party Software licensed under Third Party License Terms.

8.1 Licensor reserves the right to introduce deviating or additional Third Party License Terms in the course of the provision of updates of the Licensed Products to the extent necessary due to additional Third Party Software or due to changed Third Party License Terms.

 

9 Liability, Damages

9.1 Licensor shall be liable:

a) for intentional and gross negligent acts
b) for a culpably caused loss of life, physical injury or damage to health
c) according to the statutes of the Product Liability Act of Germany
d) under a guarantee granted by Licensor.

9.2 In addition to the aforementioned Section 9.1 Licensor shall only be liable in case of a slightly negligent breach of contractual duties, which are essential for the fulfillment of this EULA. In such case Licensor’s liability shall be limited to the typical and foreseeable amount, i.e. no more than an aggregate amount of EUR 300,000.

9.3 Beyond the aforementioned, Licensor shall not be liable for any further damages. In particular Licensor shall not be liable for damages incurred through a recall of the Licensees products. Licensor shall also not be liable for defects that were known or should have been known to Licensee on the Effective Date.

9.4 The limitation of liability according to this Section 9 shall also apply accordingly for the personal liability of staff and representatives of the Licensor.

9.5 Subject to Sections 9.1 to 9.4, Licensor shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken.

10 Effective Date, Term and Termination

 

10.1 The Agreement shall become effective on the date that your Agreement is concluded (“Effective Date”).

10.2 In case of recurring performance, e.g. a subscription based license or Support Services, the Agreement shall have an initial term of one contractual year beginning from the Effective Date and shall be automatically renewed thereafter in each case for further terms of one contractual year, unless either party provides the respective other party with a termination notice in written form at least 90 days prior to the end of the current term of the Agreement.

10.3 The right of either party to terminate a recurring Agreement for cause shall remain unaffected.

10.4 Upon termination of the Agreement in case of an evaluation license (Section 13) or a subscription based license (Section 14), Licensee shall, at Licensor’s request and discretion, return and/or delete the Licensed Products (including all installations, copies, version or parts thereof) and software documentations. Upon request of the Licensor, Licensee shall confirm in writing that such deletion was performed.

11 Confidentiality

11.1 The parties agree to keep all confidential information that becomes known to them during the performance of this EULA strictly confidential and to use such information only for the contractually agreed purposes. For the purpose of this EULA, “Confidential Information” shall mean information, documents, details and data, which is marked as such or which has to be reasonably considered confidential by the receiving party. The conditions of this EULA and the prices agreed between the parties shall be deemed Confidential Information. The parties shall not seek to register intellectual property rights in respect of Confidential Information of the other party.

11.2 The rights and obligations under this Section shall not be affected by the termination of the Agreement. Both parties agree at the option of the other party to return or destroy the Confidential Information of the other party upon the termination of the Agreement EULA, to the extent that such information still exists.

12 Miscellaneous

12.1 Notwithstanding the preceding license terms, Licensee shall not be allowed to assign any rights or obligations resulting from this EULA to any third party not specified under Section 2.3. Licensor has the right to engage subcontractors to provide the services under this EULA.

12.2 The parties agree Licensor’s registered office as the place of performance. This especially applies for the provision/delivery of the Licensed Product and license keys.

12.3 Amendments or additions to this EULA must be made in writing to be effective. This shall also apply to amendments of this written form requirement. The EULA may, however, be changed, amended or replaced at any time by Licensor with effect for future Agreements with Licensee.

12.4 Unless stipulated otherwise in this EULA, all notices of Licensee shall be made in writing or text form and addressed to:

Silexica GmbH
Legal Department
Lichtstr. 25
50825 Köln, Germany
Email: legal@silexica.com

12.5 This EULA shall be governed by the laws of the Federal Republic of Germany except for the UN Sales Convention (CISG).

12.6 The courts for Licensor’s registered office shall have exclusive jurisdiction over all disputes under and in connection with this EULA.

12.7 Should any provision of this EULA be or become invalid, this shall not affect the validity of the remaining terms. The parties shall in such an event be obliged to cooperate in the creation of terms which achieve such legally valid result as comes closest commercially to that of the invalid provision. The above shall apply accordingly to the closing of any gaps in the EULA.

Part B – Specific Terms for the Different License Options and Services

13 Evaluation License

13.1 This Section 13 applies, if the parties have agreed on an evaluation, demo or test license.

13.2 Licensor grants to Licensee in accordance with Section 2 the non-perpetual and non-transferable right to use the Licensed Products, however, only for the purpose of evaluating the Licensed Products.

13.3 Contrary to Section 3.1 and unless agreed otherwise, no accompanying software documentation will be made available to Licensee.

13.4 Unless explicitly stated otherwise in the Agreement, no fees shall be paid for the evaluation of the Licensed Products.

13.5 Licensee acknowledges that the Licensed Products are provided by Licensor to Licensee for the evaluation as is and Licensor does not warrant or guarantee the suitability of the Licensed Products for a particular purpose in any way.

13.6 Unless explicitly stated otherwise in the Agreement or in the context of acquiring/downloading the software, the Agreement thus the license shall automatically terminate after 3 months following the Effective Date.

13.7 Section 6 shall not apply.

13.8 Unless explicitly stated otherwise, an evaluation, demo or test license can only be received once by the same person or user with the non-extendable maximum duration as stated in the context of acquiring/downloading the software or in the Agreement.

14 Marketing & Support License

14.1 This Section 14 applies, if the parties have agreed on a marketing & support license.

14.2 Licensor grants to Licensee in accordance with Section 2 the non-perpetual and non-transferable right to use the Licensed Products, however, only for the purpose of marketing the Licensed Products.

14.3 Licensee shall not be allowed to use and commercialize the Licensed Products through the provision of professional services for its own account.

15 Subscription Based License

15.1 In case the parties have agreed on a subscription based license, Licensor grants to Licensee in accordance with Section 2 the non-perpetual and non-transferable right to use the Licensed Products for the term of the Agreement.

15.2 The Subscription Based License includes access to bugfixes and updates regarding the Licensed Products in accordance with Section 5.

16 Perpetual License

16.1 In case the parties have agreed on a perpetual license, Licensor grants to Licensee in accordance with Section 2 the perpetual right to use the Licensed Products.

16.2 The Perpetual License does not include access to bugfixes and updates (cf. Section 5). Access to such updates and bugfixes is subject to a separate agreement relating to Support Services. Licensees’ rights according to Section 6 shall however not be restricted.

16.3 Section 3.4 shall not apply in case of a Perpetual License.

17 Support Services

17.1 Licensor shall perform Support Services to the extent and for the term agreed within the Agreement. Unless stated differently within this EULA or agreed otherwise within the Agreement, Support Services shall have a term corresponding to the term of the license of the Licensed Products.. Licensor does not guarantee or warrant to resolve all support inquiries made by Licensee, but shall use reasonable efforts to do so.

17.2 Unless otherwise agreed, Licensor shall perform Support Services on the following basis:

a) Scope of Support: Through the channel of its choice, Licensor will provide expert level guidance and troubleshooting to Licensee in connection with questions and issues arising from the installation, configuration, and use of the Licensed Products.

-Installation and Updates: Support with first time-installments or the installation of updates includes providing guidance and troubleshooting in connection with Licensee downloading and installing, or updating of the Licensed Products.

-Configuration Issues: Support for configuration includes troubleshooting Licensee configuration settings for existing installations on supported platforms to ensure proper operation.

-Basic Product Functionality Questions: Licensor experts will answer Licensee “how to” questions related to standard and intended product usage.

b) Product Defect Verification and Reporting: Bug identification and tracking.Licensor shall have no obligation to provide Support Services for any of the following matters:

-Licensed Products that are used on or in conjunction with software other than that specified in the Product Specifications.

-Third party applications not provided by Licensor

-Altered or modified Licensed Products, unless altered or modified by Licensor or as defined in the Product Specifications

-Defects in the Licensed Products due to hardware malfunction, abuse or improper use

-Evaluation software (see Section 13) or other software provided at no charge and any Licensed Products sold separately by Licensor, including, without limitation, consulting code, unless generally made available to Licensors’ customers at no additional charge

-Licensor support excludes consulting, customization, individual feature requests, integration and any issues arising from non-standard usage of the Licensed Products.

c) Support Contacts: Licensor will provide Licensee Support Services only to a maximum of two (2) named Support Contacts per Licensed Product. Licensee may replace Support Contacts by notifying Licensor.

d) Support Channels: Licensor will provide Support Services via email to support@silexica.com or Licensor’s ticketing system for all issues.

e) Code Correction: Licensor will provide code corrections as required to correct software malfunctions in order to bring the Licensed Products into substantial conformity with applicable documentation. If Licensee encounters a problem in the usage of the Licensed Products, Licensee will provide Licensor with sufficient detail to permit Licensor to understand and reproduce the problem. Licensor will use reasonable efforts to diagnose the problem and if it is mutually determined by Licensee and Licensor that the problem represents an error in the Licensed Product that causes it to not to operate in substantial conformity with applicable documentation, Licensor will use commercially reasonable efforts to provide a bugfix to Licensee. In addition, Licensor may, at its sole discretion and from time to time, make bugfixes or updates generally available to users of the Licensed Products.

f) Online Support: Licensee shall have unlimited access to Licensor’s online ticketing system on Licensor’s website at support.silexica.com.

g) Remote Access: At Licensor’s discretion, Support Services may be offered via remote computer access. Should Licensee choose to access such services, Licensee hereby grants permission to Licensor to remotely access the Licensed Products from an external computer controlled by Licensor, including any and all of Licensee’s systems on which the Licensed Products reside, for the sole purpose of providing Support Services to Licensee. Licensee acknowledges that it may control all Licensor access to the Licensed Products and to Licensee’s systems by applying respective settings and monitoring all such access.

h) Support Process: Licensor shall undertake reasonable efforts to: a) Acknowledge receipt of a support request from a Support Contact within 24 hours. This will generally be via the same medium of communication by which the service request was reported; b) Provide a short status report to Licensee within a reasonable time; c) Solve the support request by providing a remedy that could take the form of eliminating the defect, providing updates, or demonstrating how to avoid the effects of the defect with reasonable commercial effort. The remedy may also include error corrections, bugfixes, workarounds (i.e. temporary solutions used to complete a task that would not otherwise be possible due to a problem or limitation in the affected Licensed Product), replacement deliveries or any other type of software or documentation corrections or modifications.

i) Processing Time: After Licensor acknowledges the receipt of a support request, Licensor will use commercially reasonable efforts to solve the request. At Licensee’s request, updates on work progress can be received by e-mail. Each party acknowledges that despite a party’s reasonable efforts, not all problems may be solvable.

j) New Versions: In case a new version of the Licensed Product is made available to the Licensee, Licensee shall update all workstations to this latest version of the Licensed Product within twelve (12) months of its availability to the Licensee (“Transition Period”).

After the Transition Period, Licensor shall only be obliged to provide Support Services, as defined above, for the respective current version of the Licensed Product. The provision of Support Services for older versions of the Licensed Product after the Transition Period shall be solely at Licensor’s discretion and Licensor does not warrant the suitability of any Support Services provided for such outdated versions of the Licensed Product.

k) Updates and Bugfixes: Access to bugfixes and updates will be provided in accordance with Section 5.

l) Per-Incident Support: Support Services under this agreement are provided as per-incident support. An “Incident” is defined as a single support issue that cannot be divided into multiple sub-requests. One Incident can span multiple means of communications as defined under paragraph d). Licensor should create separate support tickets for each individual issue or question Licensee have. Per-Incident Support can be purchased in bundles and will be added to Licensee’s support account.

m) Incident Deducting Policy: One Incident will be deducted from Licensee’s account when Licensee creates an Incident via email or Licensor’s ticketing system. Once an Incident is deducted from Licensee support account, it cannot be credited back even if the issue was resolved without Licensor’s support help. Also, the Incident cannot be credited back if the issue is described in Licensor’s documentation or was fixed in released bugfixes or updates. All new support requests will trigger the Incident deducting to occur. If the Incident Licensee submits turns out to be a bug neither previously documented in Licensor’s documentation nor fixed yet in any bugfixes or updates, Licensor will credit an Incident back to Licensee account. Incidents submitted to Licensor regarding purchase or licensing issues will not be deducted from Licensee account.

n) Trainings: Licensor offers trainings on installation, configuration and how to use the Licensed Products in the standard and intended manner. Trainings will be conducted either via online videoconference or at a place of Licensee’s choice and will be charged for separately. Dates for trainings will mutually be agreed upon in commercially reasonable time ahead.

17.3 Licensor shall be allowed to suspend the Support Services twice per calendar year for a period of maximum one week respectively. Licensor shall notify the Licensee four weeks prior to such suspension.

17.4 Services requested by Licensee and performed by Licensor outside the scope of the agreed Support Services shall be mutually agreed upon and charged by Licensor separately.