ILNumerics
GmbH, 12103 Berlin, Germany
End User License
Agreement (the „Conditions“)
for the software ILNumerics
Ultimate VS
valid from April 2024
1. Scope. These Conditions shall apply to the software ILNumerics
Ultimate VS, including any Updates and bug fixes of the same (hereinafter: the Software) and any supplies and services
related thereto provided by ILNumerics GmbH, Bessemerstr.
82, 12103 Berlin, Germany (hereinafter: ILNumerics) to any customers – hereinafter:
Customer. Such Customers are classified by ILNumerics as Corporate, Academia or
Personal (see below). Any part of these conditions shall apply for any Customer
of Corporate, Academia or Personal category, unless a specific part of Conditions
is explicitly marked otherwise.
a.
Personal: utilization
of Software is strictly for learning, non-commercial, non-profit use. Customer
is using Software as a private individual and without being instructed by or associated
with a commercial entity, as a company, business unit or organization.
b.
Academia:
utilization of Software is strictly for learning or teaching and for
non-commercial, non-profit use. Customer is using Software as an employee of an
academic organization, such as universities, public and certified private
schools.
c.
Corporate:
any other person or business entity.
Siemens Medical
Solutions USA Inc. and affiliated companies within the meaning of Section 15 of
the German Stock Corporation Act (AktG) are excluded
from licensing.
2. No
Other Terms and Conditions. If ILNumerics
and the Customer are starting contacts of any kind in connection with the
Software or have entered into a contract for sale or rental of the Software or
any service, license or other agreement related to the Software (each
hereinafter: Contract ), these
Conditions shall apply except if and to the extent that the Contract provides
otherwise.
In case the Customer is installing, copying or
otherwise using the Software he is accepting to be bound by these Conditions.
If the Customer does not agree to the Conditions or any part thereof, the Customer
is not entitled to install, copy, use, evaluate, or replicate in any manner any
part of the Software.
ILNumerics does not accept any terms or
conditions which deviate from these Conditions, except if ILNumerics has agreed in writing
expressly to such terms and conditions and has waived the validity of these
Conditions. Such consent of ILNumerics shall be valid only for the specific
Contract and does not extend to former or future Contracts.
3. Negotiation
and/or Performance of a Contract. Any cost
estimates which ILNumerics may indicate on the website of ILNumerics or otherwise
shall not be binding on ILNumerics.
3.1. Prices; Value Added Tax. Value added
tax shall not be deemed included in the prices quoted by ILNumerics, and, if
applicable, it will be charged separately in the invoice at the statutory rate
prevailing on the date of the invoice.
3.2. Grant of License. In case of conclusion
of a Contract ILNumerics grants the Customer a non-exclusive, non-transferable license
to install the Software on Customers computers and to use the Software for developing,
executing and redistributing Customer Software ( hereinafter: Use ) , but only in strict compliance with the
Contract and these Conditions. Customer Software is defined in clause 3.7.1
3.2.1 The Customer may
purchase by a Contract the license for the Software and any supplies and services
related thereto provided by ILNumerics for Use during a period as determined by the Contract starting with the purchase date of the Software,
if not otherwise specified in the Contract. The Contract may also expressly
include by a Maintenance Subscription the acquisition of ILNumerics valid
updates and maintenance of the Software for Use and subject to the conditions
of the Contract and these Conditions.
3.2.2 Customer shall
be entitled to the Use of the Software only in the cases that ( i ) Customer has acquired from ILNumerics a Maintenance
Subscription which is valid at the respective time or ( ii ) the right to the Use
of the Software or parts of it is expressly granted in the Contract for each individual case; but,
however, customer shall refrain from any other use of the Software.
3.2.3 The Customer
shall be obligated to activate after conclusion of the Contract the installation
of the Software as prescribed by ILNumerics. The Customer shall activate
exactly one personalized operating system user account on one computer
(hereinafter: Developer Seat ) in order to enable the use of the Software by the
single person associated with the account and during the activation period. Customer
shall repeat the activation of the Developer Seat during the period of Use as
determined by the Contract.
The activation process requires the transfer of activation data between the
Customer and ILNumerics during the activation process and the storage of such
data on the computer of the Customer during the contractual use of the Software
as well as the storage and use of such data by ILNumerics.
3.2.4 Without
obligation ILNumerics may allow the transfer of an activated Developer Seat and
the activation of another personalized operating system user account on the
same or on another computer within reasonable intervals and within the period of
the valid Maintenance Subscription. Before such transfer and before the activation
Customer shall request explicit, written confirmation by ILNumerics and make
available to ILNumerics any information technically or otherwise required and/or
related to the transfer, and Customer shall refrain from activating the license
on another operating system user account without having received written confirmation
from ILNumerics.
Customer shall take
appropriate action to ensure that the formerly activated Developer Seat is not
used for accessing or using the Software after the transfer. Customer shall deliver
appropriate proof of such actions to ILNumerics on request.
3.2.5 Customer shall
be obligated to secure the installation of the Software before and after
activation on a Developer Seat by performing backups within reasonable time
intervals. In case of damage to the computer and/ or to the Developer Seat caused
by hardware and/or operating system failure ILNumerics grants Customer the
right to repair the damaged part and to reinstall the installation from the
backup and to continue accessing the Software for Use and subject to the
conditions of the Contract and these Conditions.
3.3.1 The Software as
well as any supplies and services of ILNumerics are described in the
documentation which is made available by ILNumerics in the valid individual Contract
or separately on request.
3.3.2 Customer
may use the Szip software integrated with HDF5 as
integrated with the Software to decode data and for internal activities that do
not involve or result in the development of a Szip-based
software product. In order to use Software to encode data based on Szip software or in the development of a Szip based software product, Customer must acquire an
appropriate license from the appropriate licensing agent or by contacting info@ics-rhbd.com. In case of redistribution of the Szip software Customer is responsible for arranging and
meeting any licensing requirements with the license owner of Szip software.
3.4.1 The Customer
shall refrain from ( i ) using the Software for any
purpose other than permitted under the Contract, ( ii ) copying and / or ( iii ) making available to third parties any technical specifications, cost estimates, quotations, images,
drawings, calculation, software and other records which the Customer may
receive from ILNumerics, in particular
in connection with the negotiation or
the performance of the Contract.
The Customer may not pass these items on to third parties except with the prior
written consent of ILNumerics. ILNumerics reserves the copyright and all
other rights in such materials.
3.4.2 The Customer
shall refrain from ( i ) reverse engineering the
Software or transforming it in any other way or
( ii ) modifying, adapting, translating or creating derivative works of
the Software or its documentation or ( iii ) reverse engineering or
transforming in any other way, accessing, or copying any intermediate or final results
created by the Software or by parts of the Software, especially by its compiler,
except in each case to the extent expressly permitted in these Conditions, in the
Contract or under mandatory law. Any copies of the Software and its documentation
shall contain all of the copyright notices, trademarks and trade names, and
user information as shown on the original.
Neither Customer’s
right to copy and modify the Software to the extent expressly permitted by
applicable mandatory legislation regarding back up or the elimination of errors
nor Customer’s right under applicable mandatory legislation regarding reverse engineering
shall be restricted hereby.
3.5 In the event that
the Customer violates the obligation(s) of clauses 3.4.1 / 2 ILNumerics shall
be entitled to request immediate release and delivery of such materials,
independent of any other rights of ILNumerics.
3.6 Customer shall
refrain making the Software, related supplies
and services or parts thereof available to any third party, whether by
delivering a data medium, over a network, by a service or in any other form, whether
or not for compensation, except with the prior written consent of ILNumerics. ILNumerics
shall grant such consent if ( i ) Customer discloses
to ILNumerics the name and address of such third party and the date of
transfer, ( ii ) the third party acquirer assumes all obligation regarding the
Software under the Contract and these Conditions and ( iii ) the Customer
destroys all copies of the Software in
its possession.
3.7 Redistribution
3.7.1 Notwithstanding
the foregoing regulations in clause 3.6 Customer may make available to a third
party (hereinafter: Client )
unmodified copies of the redistributables contained
in the Software package as set forth in the file “redist.txt” (hereinafter:
Redistributables), together with Customer’s
proprietary software generated using the Software (hereinafter: Customer Software). This right shall only
apply to the extent that ( i ) such client has agreed
to terms of use at least as restrictive as provided in these Conditions, and ( ii
) such Client may use Redistributables exclusively
together with Customer Software provided by Customer together with such Redistributables.
3.7.2 Independent of
all other rights of ILNumerics the Customer agrees to indemnify ILNumerics for
any damage or loss suffered in connection with the infringement of these Conditions
or any of ILNumerics Property Rights by a Client, and hold ILNumerics harmless
from any claims asserted by Clients in connection with the use of, or access
to, the Software, unless these are based upon a breach of the Contract by
ILNumerics.
3.8 Customers
Special Limitations of Using the Software.
3.8.1 Customer is not entitled to use the
Software in such a way that results in Customer’s development of software
products which are directly or indirectly competitive with the Software or
other products of ILNumerics. In addition, Customer’s use of the Software must
be for the purpose of developing Customer products that include significant
value-added features.
It is not allowed to use the Software to create frameworks, wrappers, delegation
layers, services, software development tools or other products that could be
enabling anyone to reuse it programmatically.
3.8.2 It is not
allowed to access the functionality of the Software by reflection or to use
code injection techniques with the Software. Access to the Software is
restricted to such methods which are explicitly marked for public access in the
specification of the Software.
3.8.3 Independent of
all other rights ILNumerics is entitled to immediately terminate the granted
license, if the Customer shall not comply with his obligation(s) as mentioned in
the clauses 3.7 and 3.8, especially in case of material breach of the Contract.
The provision of incorrect
data in the Contract, including but not limited to data referring to the
company size of Customer, is considered a material breach of the Contract.
3.9 Property Rights, Restricted Rights of Use. Customer’s
right to use the Software and its documentation, protected by intellectual
property rights of ILNumerics, shall be strictly limited to ( i ) internal purposes, ( ii ) use only on a Developer Seat by
a single ( 1 ) person (Customer or
affiliated with Customer) which is destined by the Customer for Customer’s
development with the Software and named to ILNumerics on request, ( iii )
otherwise as provided in the Contract and / or in these Conditions. ILNumerics reserves all other
rights.
3.10 Terms of delivery. All Deliverables shall be delivered ex works (EXW)
ILNumerics Berlin (Incoterms 2010); prices quoted by ILNumerics shall be deemed
agreed on the same basis.
ILNumerics may provide
the Software solely electronically via online download.
3.11 ILNumerics
reserves the right to supply a successor
version of the Software version ordered which has become available prior to
delivery, provided that the successor version meets the agreed specifications,
and is not more expensive than the version ordered, and the Customer has not
explicitly precluded delivery of such successor version.
3.12 Special Responsibilities of the Customer.
Customer shall be solely responsible to procure a system environment complying
with any technical guidelines issued by ILNumerics or third parties relating to
the use of the Software.
In the event that ILNumerics identifies to Customer a third party service
provider for such system environment, ILNumerics shall not assume any liability
with respect to the performance of such third-party service provider as far as
legally admissible.
3.13 The Customer
shall not distribute the Deliverables into countries and / or to users as prohibited
under German or other statutory law; therefore the Customer shall not have a
statutory right of recourse or any
other right.
3.14 No Property Guarantees. Absent express
written confirmation, ILNumerics shall not be deemed to have guaranteed certain properties of the
Deliverables. The properties of the Software are described conclusively in the
Software documentation.
4. Software
Maintenance. ILNumerics provides to Customer all such new versions of the
Software (hereinafter: Updates )
free of charge as long as it is valid in accordance with the Contract resp. the
valid Maintenance Subscription, which are approved by ILNumerics for
distribution to the public.
ILNumerics intends to
release Updates at reasonable intervals, but does not guarantee that particular
Updates will be made available at a particular point in time.
Updates are
accordingly subject to the regulations and especially to the restrictions of
use set forth in these Conditions and in the Contract for the Software.
Customer acknowledges
that any ( i ) remedies for Defects of Updates and (
ii ) any liability of ILNumerics for such Updates, regardless of the legal
foundation they are based upon, is accordingly subject to the limitations set
forth in the Contract and these Conditions, especially clause 6.
After the Customer has
upgraded to a new Update, any right of use with respect to the former
version(s) of the Software shall terminate automatically after an evaluation period
of thirty ( 30 ) days after the date the Update has been installed.
Individual support by
ILNumerics to Customer is provided according to the details of Contract and is
subject of support tickets. The term of a support ticket is identical with the
term of the validity for the corresponding maintenance subscription. Personal
and Academic Customers are not entitled for individual support from ILNumerics
unless Contract states otherwise.
5.1 Confidentiality. The parties mutually
agree to keep strictly confidential all technical and commercial information
which by its nature (notably the source code of the Software) or by explicit marking
is confidential and was received from the respective other party (hereinafter: Information)
and to refrain from using any such Information except as strictly required to
perform the Contract. This restriction shall not apply to Information which the
recipient can show was already published or known to the recipient at the time of
disclosure or that was published later without the fault of the recipient.
The parties represent that their respective employees, consultants and
subcontractors are bound by, and all comply with the obligations as stipulated
herein.
The recipient shall notify the disclosing party without undue delay if he
receives notice from a court or authority or third party to disclose such
information.
This confidentiality clause shall survive termination of the Contract as far as
legally admissible.
5.2 Notwithstanding the foregoing regulations in clause 5.1 Customer
shall grant ILNumerics the right to make publicly available any materials
Customer shall deliver to ILNumerics without written request and which are not
strictly required to perform the Contract and are not marked as confidential.
This shall expressly include but shall not be limited to code examples and
general feedback for the Software and services related thereto, provided by
ILNumerics.
ILNumerics, however, shall
refrain from making publicly available any Information which shall allow a
recipient to infer personal, commercial or otherwise sensible Information of
Customer.
6. Limited
Remedies for Defects (Warranty). Any
deviation in the deliveries of ILNumerics from agreed specification(s) and / or
any violation of rights of third parties shall be deemed as defect (hereinafter
collectively: Defect(s) ).
In accordance with the valid statutory law the Customer may exercise his
remedies for repair or replacement of the Software and the documentation as
well as the supplies and services and, only where that fails or in other
exceptional cases as provided for under valid statutory law, withdraw from the
Contract or demand a reduction of the agreed price (hereinafter Warranty Claims),
subject to the following limitations:
6.1 The Customer shall
inspect the Software and its documentation as well as any supplies and services
of ILNumerics and notify ILNumerics of any Defect immediately upon delivery. In the absence of such immediate notice, the
Customer shall be deemed to have accepted any Defect of the Software and its
documentation as well as of any supplies and services of ILNumerics that could
have been detected through due diligent review. Notably, such notice shall not
be deemed immediate if it is received by ILNumerics more than 14 days after
delivery.
6.2 Customer shall define
for ILNumerics the details of an alleged Defect in writing or by Email and
shall immediately answer any questions of ILNumerics. ILNumerics shall also be
entitled to free and unrestricted online access to the Customer computer(s) to
the extent necessary to define and investigate any alleged Defect and to repair
or replace the Software and / or the supplies and services.
6.3 ILNumerics reserves
the right whether to repair or to replace the Software and / or the supplies
and services which proves to be defective.
If ILNumerics fails to exercise such right within a reasonable time limit, such
right shall pass to Customer. ILNumerics
shall have at least two attempts at such repair or replacement for every single
Defect, except where ( i ) this should unduly
prejudice Customer in individual cases or ( ii ) due to the nature of Defect or
the Deliverable or other circumstances, a larger number of attempts is
appropriate. Customer shall allow ILNumerics a reasonable period of time for
each attempt.
6.4 Any Warranty
Claims shall be excluded ( i ) unless the Defect in question substantially limits the
suitability of the Software for the agreed purpose and ( ii ) if and to the extent such Warranty
Claims results from information, works
or services or components provided by Customer.
6.5 Limitation Period. Customer’s remedies
for Defects of the Software – excluding the rights to claim damages – shall be
subject to a limitation period of twelve ( 12 ) months.
Notwithstanding the
foregoing, all remedies based on
- fraudulent concealment of defects, or
- ( i ) gross negligence, willful misconduct or ( ii )
death or personal injury, caused by
negligence or
willful misconduct, or
- guarantees of certain properties and /
or
- the right to withdraw from the
Contract based on a breach imputable to ILNumerics other than a
Defect
shall be subject to
the applicable statutory limitation periods.
The limitation periods
shall begin on the date specified by the statute.
Repair or replacement
of Software shall not result in a renewal of the limitation period for the
Customer’s warranty Claims with respect to the repaired Software.
Notwithstanding the repair or replacement, such Warranty Claims shall be
subject to a limitation period equivalent to the remaining limitation period
applicable to the original Software, except that such limitation period shall
at the earliest expire one month after such repair or replacement or ILNumerics
unjustified refusal to undertake further attempts of repair or replacement.
6.6 Warranty Claims shall be excluded to the extent that the Customer ( i ) uses the Software for any purpose other than
the contractual purpose or in violation of the relevant statutory or
contractual requirements and/or guidelines issued by ILNumerics or third party
manufacturers, or ( ii ) modifies the Software or uses the Software together
with any hardware or software not approved by ILNumerics or any third party
manufacturer for such purpose, unless, in each case, the Customer has obtained
the prior written consent of ILNumerics, and except, in each case, where the
forgoing circumstances did not cause the Defect.
6.7 Any Warranty for
the Deliverables not infringing third party rights shall be limited to third
party rights valid in the country of the address where Customer is allowed to
use the Software pursuant to these Conditions. Furthermore any Warranty Claims
for violation of third party rights shall be excluded unless the Customer
enables ILNumerics to conduct the defense
alone without any restriction and grants to ILNumerics the necessary
powers and assistance, based on Customers cost.
7. Liabilities.
ILNumerics shall be liable in damages, whether based on Contract or any
other legal theory, only to the extent that the damage was caused by gross
negligence or willful misconduct imputable to ILNumerics. In the event of death
or personal injury, ILNumerics shall be liable also for slight negligence in
accordance with statutory law. In addition, ILNumerics shall also be liable in
accordance with statutory law for a slightly negligent violation of a
fundamental duty under the Contract, but such liability shall be limited to the
purchase price (excluding VAT) of such Contract which resulted in the damage.
Customer herewith confirms that the total amount of any foreseeable damages
does not exceed such purchase price.
Fundamental duties as used
herein comprises all duties which must be fulfilled by ILNumerics in order to
enable consummation of the Contract and the achievement of its purposes,
provided that Customer may reasonably expect fulfillment of such duties in view
of the content and purposes of the Contract.
7.1 The liability of
ILNumerics shall cover neither ( i ) damage caused by
loss of data to the extent such loss could have been avoided by reasonable (at
least daily, alternating) state of the art back-up, nor ( ii ) damage caused by
use of any Software or distribution of Customer Software which could have been
prevented by examination at regular intervals of the results of the use of the
Software, notably thorough review of the properties and absence of defects of
Customer Software. ILNumerics shall not be liable for any consequential damages.
ILNumerics shall not
guarantee to conform to certain standards of security, except as defined in the
Software specification.
7.2 Limitations on the
liability of ILNumerics agreed in the Contract or these Conditions shall apply
also to the personal liability of ILNumerics officers, employees and agents.
7.3 Where Software is
provided free of cost (e.g. demo Software, Software subject to open source license
terms, Updates, Maintenance, Tools) ILNumerics shall be liable for damages only
in case of gross negligence or willful misconduct imputable to ILNumerics and /
or fraudulent concealment of defects.
7.4 Any mandatory
liability under the German Product Liability Act and/or arising from a
guarantee of properties shall remain unaffected.
8. Indemnification.
Customer shall hold ILNumerics harmless from all claims asserted by third
parties that the Customer has violated statutes or regulations applicable to
the business, including, but not limited, to statutes of unfair competition or
data protection.
Customer shall hold
ILNumerics harmless from all claims asserted by third parties and any other
damage or loss based on ( i ) the Customer’s representations vis-à-vis third
parties with regard to properties or technical specifications of the Deliverables
to the extent that such claims deviate from the specifications published and
distributed by ILNumerics and ( ii ) use
of the Customer Software by such third party.
9. Data Protection, Right of Use,
References, Advertising. The Customer is hereby notified that ILNumerics shall
comply with Data Protection as far as admissible in accordance with European / German
mandatory law concerning Data Protection. ILNumerics shall also store, process
and use personal data and other contact information including important
technical / non-technical notifications by the Customer in the context of
the business relationship for the purposes of contact management,
advertising and important technical /non-technical notification.
Customer also agrees
that ILNumerics may name the Customer as disclosed by Customer as reference in
any publication, notably in any advertising material. ILNumerics may in this context
also disclose details of the respective Deliverable.
The Customer may withdraw
his consent to the storage, processing and use of the data for advertising
purposes at any time with a notice period of thirty ( 30 ) days by written
notice.
By using the Software
as integrated part of Visual Studio® Customer shall agree that information shall
be exchanged between Visual Studio® and ILNumerics for the purpose of update
notifications.
10. Notices.
Any notices, declarations or waivers which may be declared or made pursuant to
the Contract or these Conditions shall be valid only if they are in writing
unless explicitly agreed otherwise.
11. No
assignment. The Customer shall not be entitled to assign any of its rights
under the Contract - except for claims of payment – to any third party without
the prior written consent of ILNumerics, which consent shall not be
unreasonably withheld.
12. Changes
of these Conditions. ILNumerics shall be entitled to change or amend these
Conditions by unilateral notice with proactive effect, observing a one month
notice period.
In such case the
Customer shall have the right to withdraw from the Contract, observing a two weeks’
notice period with effect to the effective date of the proposed amendment. Where
Customer does not exercise this right, the amendment shall become effective.
The amendment shall
not affect pre-existing perpetual licenses.
13. Severability.
Should one or more provisions of the Contract or these Conditions be or
become invalid or unenforceable, the validity and unenforceability of the other
provisions shall not be affected. In this case the parties shall in god faith
negotiate the provision in question in order to replace it by a corresponding
provision legally permitted, reflecting the economic intention of the original
provision as far as possible. Procedure shall be the same if a loophole
requiring supplementation arises on performance of the Contract.
14. Place
of Performance shall be Berlin, Germany.
15. Governing
Law, Jurisdiction
15.1 The Contract and these Conditions shall be governed by the laws of
Germany with the exception of the conflict of law rules and the UN Convention
on the International Sale of Goods (CISG).
15.2 All disputes
under or in connection with the Contract and / or these Conditions shall be
submitted exclusively to the courts competent for Berlin, Germany, to the
extent that the Customer is a commercial entity or a public law corporation, or
a public law fund or trust.
The Customer hereby submits expressly to the jurisdiction of the courts competent
for Berlin. The same shall apply if, at the time the claim is brought, the
Customer’s domicile is not in Germany or not known.
ILNumerics reserves the right to take legal actions against the Customer in the
courts having general personal jurisdiction over the Customer.
The prevailing party
in any legal action arising out of or relating to the Contract and / or these
Conditions shall be entitled to an award of its reasonable attorneys’ fees and
costs, in addition to any award of damages or other relief, if any, awarded to
the prevailing party; such claim shall be applicable even if the statutory law
does not include a corresponding right.
Should you have any
questions to these Conditions, contact us or write:
ILNumerics GmbH 12103 Berlin, Germany |
Tel.
: +49 30 5557 9793 Email: info@ilnumerics.net |