General Subscription License Conditions

INOSIM Software GmbH

Valid from May 11th, 2016

Definitions

• AGREEMENT
  means the present document, its Appendixes, possible amendments and all the referred documents.
• PARTY
  means one or two of the AGREEMENT PARTIES customer and INOSIM.
• SOFTWARE
  means one or more of the purchased SOFTWARE programs, as well as any modification or improvement to such programs.
• HARDWARE
  means the computer HARDWARE and site defined in Appendix 2 where is installed the SOFTWARE and its PROTECTION DEVICE.
• PROTECTION DEVICE
  means a HARDWARE or SOFTWARE device supplied by INOSIM, which enables the operation of the SOFTWARE on the HARDWARE, and controls the number of copies, the duration of the licenses and illegal uses of the SOFTWARE.
• TECHNICAL CONTACT
  means one person appointed by the customer who is the TECHNICAL CONTACT of INOSIM for use of the SOFTWARE.

For the purpose of this AGREEMENT, the terms when used in capitals shall have the respective meanings set forth in these definitions or in the text.

Section 1: Aim of the AGREEMENT

INOSIM, in accordance with the terms and conditions defined in the purchase:

• hereby grants to the customer a temporary license to use the SOFTWARE;
• shall provide to the customer associated maintenance, update, training and support services.

Section 2: Effective Date

The AGREEMENT shall take effect as from date specified in the invoice.

Section 3: Term

The AGREEMENT is valid for the period specified on the invoice, as from the effective date as defined in Section 2. It cannot be cancelled for convenience during this initial period.
At the end of this initial period, if the customer wants to renew, INOSIM will issue a new quotation.

Section 4: SOFTWARE Licenses – Installation

4.1 Licenses
INOSIM grants to the customer, as from the effective date, a license to use the SOFTWARE on the HARDWARE for the term of the AGREEMENT. This grant of right of use is non-exclusive and non-transferable, provided, however, that the customer shall have the right, with the prior written consent of INOSIM, which consent shall not be withheld or delayed without unjustified cause, to transfer the license to a third PARTY to whom INOSIM has no reasonable objection, should such assets of the customer to which the license relates be transferred to a third PARTY through merger, sale or assets or like transaction.

4.2 Ownership
The SOFTWARE, along with all associated rights, shall at any time remain the property of INOSIM and its suppliers, whether or not the SOFTWARE, or any part thereof, is patented or protected in any manner.
By accepting the grant, the customer agrees not to undertake any of the following without the prior written consent of INOSIM:

• Any type of use not explicitly authorized by the AGREEMENT;
• Any grant, sub-license, or AGREEMENT, whatever its qualification, which would transmit to a third party the use granted, even if this is free of charge;
• To remove, release, disclose, reveal, copy, extract, modify, or duplicate all or any part of the SOFTWARE in any way, either for the customer or others, or suffer or permit such acts to be done. Nevertheless, the customer shall have the right to reproduce the SOFTWARE, in whole or in part, for the customer´s internal disaster recovery, backup and archival purposes;
• To reverse, compile, reverse engineer, or disassemble the object code form of the SOFTWARE.

4.3. Installation
INOSIM shall provide the customer with the following elements required for using the SOFTWARE on the HARDWARE:

• The standard version of those programs constituting the SOFTWARE;
• The PROTECTION DEVICE required to use the SOFTWARE;
• Technical support for SOFTWARE installation;
• All publicly available documentation relative to the SOFTWARE.

The installation of the SOFTWARE shall consist of the following:

• INOSIM shall send by e-mail to to the customer a link to download the SOFTWARE (or the physical medium on which the SOFTWARE is recorded, along with the PROTECTION DEVICE and corresponding documentation in some specific cases, see Appendix 1);
• The customer shall be given the necessary information to install the SOFTWARE;
• The customer shall install the SOFTWARE on the HARDWARE pursuant to INOSIM information. INOSIM shall assist the customer during this operation by phone, by fax, by mail, or by e-mail.

Section 5: Maintenance, Update, Training, and Support Services

5.1 Services Provided
The Maintenance, Update, Training, and Support Services include:

• Maintenance: Correction of all errors discovered and reported that materially affect the performance, functionality, or other significant features of the SOFTWARE or its PROTECTION DEVICE;
• Update: INOSIM will provide SOFTWARE updates, together with release notes and installation instructions when they are made available by INOSIM. Updates may include new documentation, corrections, improvements in programs efficiency and reliability, and new developments but may in INOSIM’s discretion exclude major new functional capabilities;
• Training: Any person from the customer can freely attend 1st level scheduled training sessions related to the SOFTWARE, which are regularly organized by INOSIM (within available seats for each session). The upcoming schedule as well as the teaching content are available at www.inosim.com.
• Technical Support (Hotline): Off-site support in the form of consultations, help, defect correction, advice and assistance on the use and maintenance of the SOFTWARE. Typical technical support questions include:
  • Issues with Installation of the SOFTWARE ;
  • Questions about how to correctly use the PROTECTION DEVICE;
  • Technical information for using efficiently the SOFTWARE.

Questions involving process engineering, development of simulation models, and similar work may, in INOSIM’s discretion, be treated as beyond the scope of the Hotline service.

5.2 Limitations
The services will be ensured by INOSIM exclusively for the latest release of the SOFTWARE delivered by INOSIM to the customer.
The services will not be provided by INOSIM if:

• A defect, malfunction or error is due to a modification or development of the SOFTWARE made by the customer;
• The SOFTWARE and/or the PROTECTION DEVICE have not been used in compliance with INOSIM´s instructions;
• The error cannot be reproduced by INOSIM on its properly functioning computer equipment;
• The defect detected is due to the HARDWARE and/or its operating system and/or the customer´s internal procedures.

INOSIM is committed to answer only to requests from the TECHNICAL CONTACT(S) listed in Appendix 2. These services do not include specific developments done on the customer’s request.
After delivery, the customer shall be solely responsible for the risk of loss of the SOFTWARE and/or its PROTECTION DEVICE. INOSIM shall not be responsible for damages resulting from theft or destruction to the physical media on which the SOFTWARE and/or the PROTECTION DEVICE are embedded. Nevertheless, this provision will not apply if the customer provides the proof that the loss of the PROTECTION DEVICE is due to its fault or to an error of handling.

5.3 Conditions of Intervention
The services requests must be sent by the customer to the support address (Hotline phone number, e-mail address, or post address) supplied by INOSIM. The services will be provided directly by INOSIM staff or through its local agents, representatives or distributors (if any).
INOSIM will intervene either on its own initiative or on the request of a TECHNICAL CONTACT of the customer when an event covered by the services will occur.
INOSIM will have qualified technical experts available by telephone during its normal hours of business and INOSIM will receive fax or e-mail technical support questions twenty-four hours a day. Technical support problems may also be submitted by mail. This technical support service is available in English and German. INOSIM will use its best efforts to solve encountered difficulties as soon as possible and to respond to technical support questions promptly, so that the problem will be taken into account within five working days, and a written response will be sent to all the written questions. To solve the encountered difficulties, INOSIM specialists will use all available means for intervention (phone, fax, email, mail, directly on the INOSIM website, or through another site linked with the HARDWARE).
Only INOSIM (or its local agents, representatives or distributors) will decide if provision of services requires visits to the customer´s locations.
For any intervention in the customer´s offices, INOSIM agents or its representatives stay under INOSIM responsibility and stay distinct from the staff of the customer. They will respect working hours and internal rules defined for the customer´s staff. Reciprocally, for all visits to INOSIM offices, the customer´s staff will remain under the customer´s responsibility and stay distinct from INOSIM staff. The customer agents will respect working hours and internal rules applying to INOSIM offices. Each PARTY undertakes to take any measures required to warrant, to prevent, and to insure the agents and material of the other PARTY against any damage they could cause, even by accident, during these interventions.

Section 6: Responsibility of the customer

The customer undertakes:

• To notify INOSIM in writing of any modification in the TECHNICAL CONTACT data set forth in Appendix 2;
• To provide INOSIM with a written notification of all requests concerning difficulties or bugs of the SOFTWARE, and mainly when the intervention request has been done by phone;
• To be responsible for configuring the HARDWARE and its operating system in accordance with INOSIM recommendations. The customer agrees to provide INOSIM, upon prior written notice, with information related to the HARDWARE components required for maintenance and support services;
• To properly use the PROTECTION DEVICE provided by INOSIM for use with the SOFTWARE, and to make no attempt to circumvent, disable, or make redundant said PROTECTION DEVICE;
• To not distribute, nor sell, nor represent, nor market in any manner a SOFTWARE competing with INOSIM products while this AGREEMENT remains in effect.

Section 7: Responsibility and Warranties of INOSIM and its Suppliers

To satisfy the terms of the present AGREEMENT, INOSIM undertakes to maintain the competence and the know-how of its employees.
The SOFTWARE and the PROTECTION DEVICES provided are furnished `as is´. Although efforts have been made that the SOFTWARE is correct, reliable, and technically accurate, INOSIM makes no warranties of any kind, either expressed, implied, or statutory, including but not limited to, warranties of merchantability or fitness for a particular purpose, or non-infringement of the SOFTWARE. Neither INOSIM, its employees, affiliates, nor licensors, or the like, warrant that the SOFTWARE will be error-free, nor do any of them make any warranty as to the results that may be obtained from the use of the SOFTWARE.
In no event will INOSIM´s or its employees´, affiliates´, licensors´ or the likes´ liability of any kind include any special, incidental or consequential damages, including loss of profits, even if any such party has knowledge of the potential loss or damage, arising in any way out of this AGREEMENT or the termination thereof.
INOSIM will not be liable for any loss or damage caused by delay in furnishing the SOFTWARE or any other performance under this AGREEMENT nor after its termination.
INOSIM´s entire liability and the customer´s exclusive remedies for INOSIM´s liability of any kind for the SOFTWARE covered by this AGREEMENT and all other performance or nonperformance by INOSIM under or related to this AGREEMENT are limited to any remedies specified by this AGREEMENT.

Section 8: Prices – Invoicing – Payment

8.1. In consideration of the license granted and the services provided hereunder, the customer undertakes to pay INOSIM the amounts indicated in Appendix 3, in accordance with the schedule and terms laid down in the said Appendix.

8.2. Payment shall be made in currency indicated on the invoice. Any applicable taxes, customs duties, import licenses, or any charges or impost for the importation of the SOFTWARE shall be paid by the customer.

8.3. In case of an intervention required on the customer´s site, travel and accommodation costs of INOSIM specialists are not included in the amounts indicated. These costs will be invoiced separately on presentation of the relevant document and after prior written acceptance of the intervention by the customer.

8.4. Any payment not received when due shall bear interest at the rate of 15% per annum, calculated monthly, plus all collection costs including attorneys’ fees.

Section 9: Confidentiality

Each PARTY (the ‘receiving party’) agrees to treat and maintain for the other PARTY (the ‘disclosing party’) as the disclosing party’s confidential property and not to use or disclose to others during or subsequent to the performance of this AGREEMENT any information (including any technical information, experience or data) regarding such other PARTY’s plans, designs, programs, software, technology, plants, processes, products, costs, equipment, operations, or customers (including any similar information of other parties that such other party has received or may receive from other parties) that may come within the knowledge of or be developed by a PARTY for the disclosing party in the performance of this AGREEMENT.
The provisions of this section shall not apply to information that:

• Has been published and has become a part of the public domain other than by the acts or omissions of the receiving PARTY, its employees, agents or contractors;
• Has been lawfully furnished or made known to the receiving PARTY by third parties (other than those acting directly or indirectly for or on behalf of the disclosing PARTY) without restriction on the PARTY as to its disclosure or use; or was in the receiving PARTY´s possession as of the effective date of this AGREEMENT;
• Was independently developed by the Receiving PARTY without reference or access to the confidential information of the Disclosing PARTY;
• Is disclosed pursuant to a subpoena or other valid legal order of a governmental body, provided that the receiving PARTY shall provide prompt written notice of such subpoena or order and reasonable assistance to the disclosing PARTY in seeking a protective or other similar order, and such disclosure is limited to the extent required by law.

For the purpose of interpreting this section, no confidential information shall be deemed to be within the scope of the foregoing exclusions merely because such confidential information is embraced by more general information which falls within the scope of such exclusions.
Nevertheless, the customer explicitly authorizes INOSIM to announce on its web site or on any other support that the customer has licensed the SOFTWARE and to disclose that the customer is one of INOSIM´s customers. Reciprocally, the customer Name is free to announce that he uses the SOFTWARE.

Section 10: Termination

10.1. Termination for Convenience
The AGREEMENT cannot be terminated during the initial period, and the amounts corresponding to this initial period are due to INOSIM when signing the AGREEMENT. Subject to Section 10.3 (Survival of Obligations) below, the PARTIES shall have the right to terminate the AGREEMENT after the initial period, as indicated in section 3 (‘Term’).
INOSIM may also terminate legitimately the AGREEMENT:

• If INOSIM stops to commercialize all or part of the SOFTWARE;
• If the HARDWARE of the customer, or his operating system, becomes inadequate to the use of the SOFTWARE or its new releases;
• In case of liquidation, dissolution or winding-up of the business of INOSIM.

In this case, the amounts already invoiced by INOSIM will remain to INOSIM and no partial refund will be due whatever the termination date.

10.2. Termination for Default
If either PARTY breaches or defaults under any material obligation hereunder, which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) days after receipt of written notice of such default from the non-defaulting PARTY or within such additional cure period as the non-defaulting PARTY may authorize, the non-defaulting PARTY may terminate this AGREEMENT. In the event of a termination for a refusal by the customer to pay a due invoice, INOSIM will immediately stop all services, the customer being entirely to blame, while the amounts not already paid by the customer to INOSIM will remain due for payment.

10.3. Survival of Obligations
The rights, obligations, and remedies under the following sections shall survive the expiration or earlier termination of the AGREEMENT: 4.2 (Ownership), 9 (Confidentiality), 10.3 (Survival of Obligations), 11 (Non-Solicitation), 12 (Miscellaneous Provisions) and 13 (Governing Law and Settlement of Disputes). Further, the obligations of the PARTIES under the AGREEMENT which, by their nature, would continue beyond the termination, suspension, cancellation, or expiration of this AGREEMENT shall survive termination, suspension, cancellation, or expiration of this AGREEMENT.

10.4. End of AGREEMENT
At the end of the AGREEMENT, whatever its cause, the customer must:

• Immediately stop all use of the SOFTWARE;
• Return to INOSIM all copies of the SOFTWARE and the PROTECTION DEVICE;
• Guarantee in writing that any copy that wholly or partly relates to the SOFTWARE has been destroyed and erased from the memory of its computer or render it non-readable.

Section 11: Non-Solicitation

During the term of this AGREEMENT and for five (5) years after the termination hereof, the customer undertakes to not solicit for employment nor employ any employee of INOSIM, unless agreed in writing by both PARTIES. This provision will be valid whatever the specialty of the employee and even if the solicitation came from the employee.

Section 12: Miscellaneous Provisions

12.1. Entire AGREEMENT
This AGREEMENT contains the entire AGREEMENT between the PARTIES relating to the subject matter hereof. All prior AGREEMENTs and all prior negotiations, representations, and communications relating to the same subject are superseded by this AGREEMENT. The present AGREEMENT prevails over the customer´s general purchase conditions.

12.2. Amendment
This AGREEMENT may not be modified other than by a written document signed by an authorized representative of the customer and an authorized representative of INOSIM.

12.3. Successors and Assigns
The rights and obligations of either PARTY shall not be transferable without the prior written consent of the other PARTY, which consent shall not be unreasonably withheld or delayed. All obligations of the PARTIES herein shall be binding upon their respective successors or assigns.

12.4. Headings
Headings used in this AGREEMENT are for the purpose of reference only and are not to be considered in construction or interpretation of this AGREEMENT.

12.5. Partial Invalidity
In case any one or more of the provisions contained in this AGREEMENT shall for any reason be held to be invalid, illegal, or unenforceable in any respect, except in those instances where removal or elimination of such invalid, illegal, or unenforceable provision or provisions would result in a failure of consideration under this AGREEMENT, such invalidity, illegality or unenforceability shall not effect any other provision hereof, and this AGREEMENT shall be construed as if such invalid, illegal, or unenforceable provisions had never been contained herein.

Section 13: Governing Law and Settlement of Disputes

The AGREEMENT shall be governed by and interpreted in accordance with the laws of Germany without giving effects to its principles of conflicts of laws.
Any dispute or difference between the PARTIES arising out of or in connection with this AGREEMENT shall be referred to and finally determined by arbitration under the International Chamber of Commerce.

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