Software License Terms

BY CLICKING THE ACCEPTANCE BUTTON, REQUESTING A PERMANENT LICENSE OR INSTALLING THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT DO NOT INSTALL THE SOFTWARE.

1. DEFINITIONS
   
   1. "Software" means the described software programs and any accompanying instructions, commercially available documentation, technical data, images, recordings, and other related materials.
   2. "Use" means storing, loading, installing, executing, or displaying the Software on a device.
   3. "Products" means Software, documentation, accessories, supplies, parts and upgrades that are determined by Marxmeier to be available from Marxmeier upon receipt of Customer's order.
   4. "Software License" means the Software license grant and general license terms set forth herein. Each Software License has a corresponding License Fee.
   5. "License Fee" means the fee or fees designated by Marxmeier for Use of Software at the time this Agreement is entered into.
   
   
2. LICENSE GRANT
   1. In return for the applicable License Fee, Marxmeier grants Customer a non-exclusive, non-transferable, limited worldwide license to Use the object code version of the Software solely for the Customer's own internal business purposes on one computer or device, or on the class or series of equipment, for which you have paid the corresponding License Fee. If no fee is required, you may use the Software on one computer or device at any one time. If the Software is licensed for concurrent or network use, you may not allow more than the maximum number of authorized users to access and use the software concurrently.

   2. All Software Licenses will be perpetual unless terminated or transferred in accordance with section 3.g.

   3. If Customer is a Marxmeier authorized reseller, Customer may sublicense the Software to an end-user for its Use or (if applicable) sublicense the Software to a Marxmeier authorized reseller for subsequent distribution to an end-user for its Use. These sublicenses must incorporate the terms of this Software License in a written sublicense agreement, which will be made available to Marxmeier upon request. If Customer is not a Marxmeier authorized reseller, Customer may not sublicense the Software unless otherwise agreed to by Marxmeier in writing.

   4. Marxmeier, or its designee(s), shall, during regular business hours at Customer's offices and in such a manner that does not interfere with Customer's normal business activities, have the right to inspect and audit, or have an inspection and audit, of the number of copies of Software Used or distributed by Customer, the computers on which the Software, if any, is installed and the number of users Using any such Software. If any audit discloses underpayments of five percent (5%) or more of the amount of License Fees Customer should have actually paid to Marxmeier, Customer shall bear all of the costs of the audit. Marxmeier's audit rights shall not terminate or expire until three (3) years after termination or expiration of this Agreement.
   
   
3. GENERAL LICENSE TERMS
   1. Software is owned and copyrighted by Marxmeier or by third party suppliers. Customer's Software License confers no title or ownership and is not a sale of any rights in the Software. Third party suppliers are intended beneficiaries under this Agreement and may protect their rights in the Software directly against the Customer in the event of any infringement.

   2. Customer may only make copies or adaptations of the Software for archival purposes or when copying or adaptation is an essential step in the authorized Use of the Software on a backup computer or device, provided that copies and adaptations are used in no other manner and provided further that the Use on the backup computer or device is discontinued when the original or replacement computer or device becomes operable.

   3. Customer must reproduce all copyright notices and other proprietary legends in or on the original Software on all permitted copies or adaptations. You may not remove from the Software, or alter, any of the Marxmeier trademarks, trade names, logos, patent or copyright notices or markings, or add any other notices or markings to the Software. Customer may not copy the Software onto any public or distributed network.

   4. This license does not entitle you to receive upgrades, updates or technical support. Such services may be purchased separately under Marxmeier Support agreements. Marxmeier reserves the right to require additional licenses and fees for Use of the Software on a different computer or device, or on the class or series of equipment.

   5. Customer will not modify, disassemble, decompile, reverse engineer, create or make any derivative works or otherwise attempt to access or determine or permit or help others to derive or determine or duplicate the source code of the Software without Marxmeier's prior written consent. Where Customer has other rights under statute, Customer will provide Marxmeier with reasonably detailed information regarding any intended disassembly or decompilation. Customer will not decrypt the Software unless necessary for legitimate use of the Software.

   6. Customer's Software License is transferable only upon Marxmeier's prior written authorization and payment to Marxmeier of any applicable fee(s). Upon transfer of the Software License, Customer will immediately deliver all copies of the Software to the transferee. The transferee must agree in writing to the terms of Customer's Software License. All Software License terms will be binding on involuntary transferees, notice of which is hereby given. Any transfer of the Software by the Customer in accordance with the provisions of this Section 3.f shall not relieve Customer of any liability for the performance of Customer's obligations under this Agreement. Customer's right to Use the Software will automatically terminate upon any such transfer.

   7. Marxmeier may terminate Customer's or any transferee's or sublicensee's Software License upon notice for failure to comply with any applicable Software License terms. Immediately upon termination, the Software and all copies of the Software will be destroyed or returned to Marxmeier. Customer shall remove, destroy or return to Marxmeier all copies of the Software that are merged into adaptations, except for individual pieces of data in Customer's or transferee's or sublicensee's database. With Marxmeier's prior written consent, one copy of the Software may be retained subsequent to termination for archival purposes.

   8. In the following provision regarding Software Licenses to the U.S. Government, the term "Customer" means Marxmeier’s direct purchaser, any entity or individual sublicensing the Software, and the end-user.
      1. If Software is licensed for use in the performance of a U.S government prime contract or subcontract, Customer agrees that Software has been developed entirely at private expense. Customer agrees that Software, and any derivatives or modifications, is adequately marked when the Restricted Rights Legend below is affixed to the Software or to its storage media and is perceptible directly or with the aid of a machine or device. Customer agrees to conspicuously put the following legend on the Software media with Customer's name and address added below the notice:
         
         

         RESTRICTED RIGHTS LEGEND Use, duplication or disclosure is subject to Marxmeier Software AG standard commercial license terms and for non-DOD Departments and Agencies of the U.S. Government, the restrictions as set forth in FAR 52.227-19(c)(1-2)(Jun 1987). Marxmeier Software AG Kasinostrasse 19-21 42103 Wuppertal Germany Copyright (c) 2002-2006 Marxmeier Software AG All Rights Reserved

         
         
      2. Customer further agrees that Software is delivered and licensed as "Commercial computer software" as defined in DFARS 252.227-7014 (Jun 1995) or as a "commercial item" as defined in FAR 2.101(a), or as "Restricted computer software" as defined in FAR 52.227-19 (Jun 1987) (or any equivalent agency regulation or contract clause), whichever is applicable. The Customer agrees that it has only those rights provided for such Software by the applicable FAR or DFARS clause or the Marxmeier standard software agreement for the product involved.
   
   
4. GENERAL
   1. Prohibition of assignment of claims Customer may not assign or transfer this Agreement or any rights or obligations hereunder without prior written consent of Marxmeier. Any such attempted assignment or transfer will be null and void. Marxmeier may terminate this Agreement in the event of any such attempted assignment or transfer.

   2. Export Requirements You may not export or re-export this software or any copy or adaptation in violation of any applicable laws or regulations. Without limiting the generality of the foregoing, software, technology or services provided under this license agreement may not be exported, re-exported, transferred or downloaded to or within (or to a national resident of) countries under U.S. economic embargo including the following countries: Afghanistan (Taliban-controlled areas), Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria. This list is subject to change.

      Software, technology or services may not be exported, re-exported, transferred or downloaded to persons or entities listed on the U.S. Department of Commerce Denied Persons List, Entity List of proliferation concern or on any U.S. Treasury Department Designated Nationals exclusion list, or to parties directly or indirectly involved in the development or production of nuclear, chemical, biological weapons or in missile technology programs as specified in the U.S. Export Administration Regulations (15 CFR 744).

      By accepting this license agreement you confirm that you are not located in (or a national resident of) any country under U.S. economic embargo, not identified on any U.S. Department of Commerce Denied Persons List, Entity List or Treasury Department Designated Nationals exclusion list, and not directly or indirectly involved in the development or production of nuclear, chemical, biological weapons or in missile technology programs as specified in the U.S. Export Administration Regulations.

   3. Place of performance/venue/applicable law Place of performance is Wuppertal/Germany. In cases of dispute for all matters relating to this License, Wuppertal/Germany is agreed to be the exclusive juridical venue in the commercial connections with merchants. In cases of dispute German law shall be valid. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.

   4. Severability If any term or provision herein is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the terms or provisions herein will remain in full force and effect. Failure or delay in enforcing any right or provision of this Agreement shall not be deemed a waiver of such right or provision with respect to any subsequent breach. Provisions herein which by their nature extend beyond the termination of any license of Software will remain in effect until fulfilled.

   5. Entire Agreement This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Customer's additional or different terms and conditions will not apply. These Marxmeier Software License Terms may not be changed except by an amendment signed by an authorized representative of each party.

   6. Exclusion No action or claim relating to this License may be instituted more than one (1) year after the event giving rise to such action or claim.

   7. Force majeure Neither party shall be responsible for or in default or otherwise liable for any delay or failure to comply with the performance of the terms of this Agreement where such failure or delay is directly or indirectly caused by or in any manner arises or results from events beyond the control of the party sought to be charged. Such events shall include but not be limited to any act of God, any acts of the common enemy, the elements, earthquakes, floods, fires epidemics, riots, acts of terrorism, failure or delay in transportation or communication. The parties will promptly inform and consult with each other as to any of the above causes which in their judgment may or could be the cause of a delay in the performance of this Agreement. The time for performance hereunder shall be extended by a period of time equal to the time lost because of any such delay.

   8. Arbitration clause All disputes arising out of or in connection with the contractual relationship between the parties or concerning its validity or the validity of the License Terms shall be finally settled, excluding the jurisdiction of the ordinary courts, by arbitration. The arbitral proceedings shall be carried out according to the arbitration rules of the WIPO (World Intellectual Property Organization), Geneva, Switzerland. The arbitral tribunal shall apply German substantive law. §§ 1025 ff. of the Code of Civil Procedure of the Federal Republic of Germany shall be applicable supplementing the arbitration rules.
   
   
   
5. LIMITED WARRANTY STATEMENT

   Marxmeier SOFTWARE PRODUCT LIMITED WARRANTY

   Scope This limited warranty is limited to the Marxmeier owned software portion of the Marxmeier software product ("Software"). The warranty for any other software portion of the Marxmeier software product ("Third Party Software"), if any, shall be governed by the warranty terms provided with the Third Party Software. Marxmeier specifically disclaims any guarantee for third party software.

   Software Limited Warranty Marxmeier warrants for a period of NINETY (90) days from the date of purchase that the Software will not fail to execute its programming instructions, due to defects in material and workmanship when properly installed and used in compliance with the terms and conditions of this Software License Agreement.

   If Marxmeier receives notice of such defects during the warranty period, Marxmeier will replace Software that does not execute its programming instructions due to such defects.

   Neither Marxmeier nor its authorized reseller warrant that the operation of Software will be uninterrupted or error free. If Marxmeier is unable, within a reasonable time, to repair or replace any product to a condition as warranted, you will be entitled to a refund of the purchase price upon prompt return of the product.

   Exclusions This limited warranty does not apply to defects resulting from (a) improper or inadequate maintenance, (b) unauthorized modification or misuse, or (c) operation outside of the published environmental specifications for the product or otherwise in an unclean environment.

   Disclaimer TO THE EXTENT ALLOWED BY LOCAL LAW, THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY OR CONDITION, WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. MARXMEIER SOFTWARE AG AND ITS AUTHORIZED RESELLERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, TITLE, ACCURACY OF INFORMATIONAL CONTENT, AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER MARXMEIER SOFTWARE AG NOR ITS AUTHORIZED RESELLERS WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MARXMEIER OR MARXMEIER’S AUTHORIZED REPRESENTATIVES OR RESELLERS SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. Some jurisdictions do not allow limitations on the duration of an implied warranty, so the above limitation or exclusion might not apply to you to the extent prohibited by such local laws. This warranty gives you specific legal rights and you might also have other rights that vary from country to country, state to state, or province to province.

6. Limitation of Liability

   TO THE EXTENT ALLOWED BY LOCAL LAW, THE REMEDIES IN THIS WARRANTY STATEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. EXCEPT TO THE EXTENT PROHIBITED BY LOCAL LAW, IN NO EVENT WILL MARXMEIER OR ITS SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, CONTRACTORS, SUBCONTRACTORS, LICENSEES OR AUTHORIZED RESELLERS BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES (INCLUDING LOST PROFIT, LOST DATA, OR DOWNTIME COSTS) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SOFTWARE, WHETHER BASED IN WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY, AND WHETHER OR NOT MARXMEIER OR ITS AUTHORIZED RESELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

   Marxmeier shall be liable for damage caused intentionally or by gross negligence. Marxmeier shall also be liable for explicitly guaranteed Product properties and as well for slight negligence relating to substantive contractual obligations, also with regard to vicarious agents. In the event of slight negligence, the liability shall be limited to foreseeable damages. Any liability shall be excluded in the event that the client does not make use of error corrections Marxmeier has published on its web site and made available for download. The customer shall be responsible to explore available error corrections at regular intervals and integrate such error corrections in its environment without delay.

   Marxmeier shall not be liable for the recovery of data, unless Marxmeier has caused its destruction wilfully or by gross negligence and the contracting party has ensured that the data may be reconstructed from data material provided in a machine-readable form with a reasonable effort.

   In case of slight negligence the liability shall be limited to EUR 100,000. The customer may request at its own expense that Marxmeier takes out an individual liability insurance beyond the aforementioned limit.

   ANY AND ALL WARRANTIES SHALL BECOME NULL AND VOID IF AT ANY TIME THE CUSTOMER ALTERS THE COMPUTER CODE OR BYPASSES, CIRCUMVENTS OR OTHERWISE VIOLATES THE DOCUMENTED PROCEDURES FOR USING THE SOFTWARE.

   HIGH RISK ACTIVITIES The Customer acknowledges and understands that Marxmeier has not designed the Software to be fault-tolerant, nor is it designed, manufactured or intended for use or resale as on-line control equipment in environments which are considered hazardous requiring fail-safe performance, including but not limited to the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapon systems, in which the failure of the Software could lead directly to death, personal injury, or serve physical or environmental damage ("High Risk Activities"). Accordingly, Marxmeier and its authorized resellers specifically disclaim any express or implied warranty of fitness for High Risk Activities.

   Note EXCEPT TO THE EXTENT ALLOWED BY LOCAL LAW, THESE WARRANTY TERMS DO NOT EXCLUDE, RESTRICT OR MODIFY, AND ARE IN ADDITION TO, THE MANDATORY STATUTORY RIGHTS APPLICABLE TO THE LICENSE OF THE SOFTWARE TO YOU; PROVIDED, HOWEVER, THAT THE CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS SPECIFICALLY DISCLAIMED AND SHALL NOT GOVERN OR APPLY TO THE SOFTWARE PROVIDED IN CONNECTION WITH THIS WARRANTY STATEMENT.

IF YOU AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT CLICK "I AGREE TO THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE" BUTTON ON THE PRODUCT REGISTRATION PAGE BEFORE YOU BEGIN DOWNLOADING THE SOFTWARE. IF YOU RECEIVE THE SOFTWARE IN ANOTHER WAY YOU AGREE TO BE BOUND BY ALL THESE TERMS WHEN REQUESTING A PERMANENT LICENSE KEY OR INSTALLING THE SOFTWARE.

Revision: 2005-08-01