License Agreement

The legally binding governing contracts
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Terms of Licensing

between

modelwise GmbH, represented by the managing directors Arnold Bitner, Florian Grigoleit, Iliya Rumenov Valchev, Theatinerstraße 8, 80333 Munich, Germany,

– hereinafter referred to as “Licensor” –

and

a customer who will download either a trial version of the “paitron” app from a website of the Licensor or a customer who receives an offer of the Licensor for a full license of the “paitron” app against payment,

– hereinafter referred to as “Licensee” –

regarding the “paitron” app in the most current version at the time of the conclusion of the contract. The “paitron” app is an assistance system for analyses of the functional safety of technical equipment.

Section 1 – Preamble
  1. The Licensor is the rights holder to the “paitron” app, consisting of software and databases, hereinafter referred to as the “Software”, or has the necessary licenses for, among other things, the development, editing, use, and distribution of the Software.
  2. The Licensee wants to license and use the Software for its own business purposes.
Section 2 – The Software
  1. The Software will assist the Licensee in the area of functional safety analyses. It will perform the analyses in a quality that serves as a source document for the final analysis to be carried out by a (human) expert. A description of the Software´s functions as well as its application requirements on the computer level are available in the Functional Description.
  2. The results of the use of the Software require a plausibility and content check for completeness and correctness by a technically qualified person at the end of the Licensee since the Software only uses algorithms to analyze and organize data provided by the Licensee in order to support the Licensee in the partly automated preparation of the chosen safety analysis. Wrongful output can have multiple reasons and does not necessarily mean that the Software did not work properly. Therefore, the Licensor cannot guarantee the compliance of the output with all conceivable requirements following from standardizations and subsequently points out gaps if necessary. More details can be found in the Functional Description. The Licensor reserves the right to edit the information available at this link.
Section 3 – The License

The Licensor will grant the Licensee a non-exclusive, non-transferable right to use the Software as described either for the trial version at the time of the download from the website or as described in the Licensor´s offer, limited (1) to the duration as described either for the trial version on the website or in the Licensor´s offer; (2) locally to the country mentioned in the offer and (3), in terms of content, for use on the occasion of civil (non-military) product developments of the Licensee itself, but not for third parties. The right of use shall include a right to data backup at the end of the License. If the license is granted against payment, the right of use will commence at the earliest upon receipt by the Licensor of the payment of the license fee in accordance with the invoice.

Section 4 – Obligations of the Licensee
  1. Decompiling or reverse engineering of the Software shall be prohibited, provided that such prohibition is not in conflict with Section 69g(2) of the German Act on Copyright and Related Rights (Urheberrechtsgesetz, UrhG) in conjunction with Sections 69d(2), (3), (5) or (7) or Section 69e UrhG and that the Licensor will not offer, for example, in response to a qualified error message, any error correction or workaround or any support regarding the question of interoperability with other programs in a reasonably timely manner and on terms that are reasonable in the single case.
  2. The Licensee is obliged to control any data created by the Software before using it.
  3. In the event of an alleged infringement of property rights by third parties, the Licensee must inform the Licensor immediately. The Licensor alone is entitled either to defend itself alleged claims or to provide a workaround or licensing to eliminate a reproachable infringement of property rights.
  4. The Licensee is obliged to take appropriate measures to secure the Software from access by unauthorized third parties.
  5. The Licensee shall, at the Licensor’s request, enable the Licensor to verify the proper use of the Software, in particular with regard to whether the Licensee uses the Software qualitatively and quantitatively within the scope of the licenses acquired by the Licensee. To this end, the Licensee shall provide the Licensor with information, grant access to relevant documents and records, and enable a review of the hardware and software environment used by the Licensor or an auditing firm designated by the Licensor and acceptable to the Licensee. The Licensor may carry out the inspection at the Licensee’s premises during its regular business hours or have it carried out by third parties bound to secrecy. The Licensor will ensure that the Licensee’s business operations are disturbed as little as possible by its activities on site. If the verification results in an excess of the purchased number of licenses by more than 5% (five percent) or any other non-contractual use, the Licensee shall bear the costs of the review, otherwise, the costs shall be borne by the Licensor.
  6. All other rights are reserved.
Section 5 – Installation and Commissioning of the Software

The installation and commissioning of the Software shall be carried out by the Licensee. The Licensor will provide the Licensee with the necessary support online or by telephone until the Software can be used by the Licensee and such support shall be compensated by the payment of the license fee.

Section 6 – Training and Support

Training of the Licensee´s employees or a hotline will be offered to the Licensee upon request as separately compensable services.

Section 7 – Proof of Concepts

The Licensor can provide to the Licensee services or a License of the Software for a proof of concept if agreed so in the offer. The proof of concept typically consists of services provided by the Licensor in order to examine whether the Software can be used effectively by the Licensee and will be remunerated either on time & material basis or by a fixed price.

Section 8 – License Fee

The price for the license fee shall be based either on the price indication on the website or on the respective offer plus, if applicable, the statutory value-added tax and is to be paid within 14 days from the invoice date to the specified account of the Licensor or prior to an installation of the Software if this is to take place earlier than before the expiry of the payment deadline.

Section 9 – Term and License Period
  1. The Licensor will provide the Software to the Licensee during the license period in a condition suitable for use in accordance with the agreement and has to maintain it in this condition for the license period.
  2. The free trial will have a license period as mentioned in the order process. The free trial will end with the end of the agreed period.
  3. The term of any license period that is not “free trial” will be one year if not agreed otherwise between the parties. Any term of a paid license shall be extended by one year at a time unless the license is terminated by one of the contracting parties in writing or in text form with three months’ notice to the end of the term.
  4. Section 10 as well as Section 14.2 up to and including Section 14.5 shall continue to apply post-contractually.
Section 10 – Liability
  1. Within the scope of this contract, the Licensor shall only be liable for damages (a) caused by the Licensor or his or its legal representatives or vicarious agents intentionally or through gross negligence or (b) resulting from injury to life, body or health caused by a breach of duty by the Licensor or one of his or its legal representatives or vicarious agents. The Licensor shall also be liable (c) if the damage is caused by the breach of an obligation of the Licensor, the fulfillment of which makes the proper execution of this contract possible and on the compliance of which the Licensee regularly trusts and may rely (cardinal obligation).
  2. In the cases referred to in paragraph 1 of this section, letters (a) and (b), the Licensor shall be liable within the scope of the statutory liability. In all other cases, the claim for damages shall be limited to the damage foreseeable and typical for this type of contract. The parties agree that a maximum damage of 500.000 EUR per case of damage is foreseeable and typical for this type of contract. If the Licensee is at risk of damage that may exceed this amount, the Licensee is obligated to notify the Licensor immediately.
  3. In cases other than those referred to in paragraph 1, the Licensor’s liability shall be excluded.
  4. The liability provisions in the preceding paragraphs shall also apply to the personal liability of the Licensor´s representatives, employees, and vicarious agents.
  5. Insofar as liability arises under the Product Liability Act from the assumption of a guarantee or due to fraudulent misrepresentation, it shall remain unaffected by the liability regulations above.
  6. In case of a use of the Software as a free trial this Section 10 is applicable provided that the Licensor is only liable according to the statutory provisions for intent and gross negligence.
Section 11 – Confidentiality
  1. The Licensee is obligated to keep information received from the Licensor confidential and to effectively secure it from access by third parties who do not need to have access to the information for the purpose of using the Software, and for this purpose to include its employees or external third parties it commissions for the use of the Software in this obligation to maintain confidentiality.
  2. In the context of this obligation, “confidential” means all information of the Licensor made available to the Licensee by the Licensor, whether in writing, orally, electronically, or otherwise, even without the particular information having to be a trade secret within the meaning of the German Law on the Protection of Trade Secrets (Geschäftsgeheimnisgesetz). This shall not include information that is publicly known at the time of transfer or that subsequently becomes publicly available without breaching this obligation to maintain confidentiality or that was demonstrably already known to the Licensee at the time this Agreement was concluded.
  3. The Licensee´s obligation to maintain confidentiality shall continue to apply beyond any termination of the Agreement for 5 (five) years from the end of the Agreement.
  4. For each case of breach of this obligation to maintain confidentiality, the Licensee undertakes to pay a contractual penalty, the amount of which will be determined by the Licensor depending on the severity of the breach and which, at the request of the Licensee, may be reviewed by a court having local and subject-matter jurisdiction as to the appropriateness of the amount.
  5. After the end of the contractual term or in case of a termination for cause, the Licensee undertakes not to use the Software any further and to delete it upon request of the Licensor and to confirm this in writing to the Licensor.
Section 12 – Data Protection
  1. The Software is not made for processing personal data. The Licensee is the data controller of all data processed in the Software.
  2. If personal data shall be transferred from Licensee to the Licensor (e.g. in the context of a proof of concept) parties will take care of compliance with GDPR e.g. by agreeing on a processor controller agreement according to Art. 28 GDPR.
Section 13 – Export Control

The parties are aware that the Software may be subject to export and import restrictions. In particular, there may be approval requirements, or the use of the software or associated technologies abroad may be subject to restrictions. The Licensee will comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union, and the United States of America, as well as all other relevant regulations. The Licensor´s fulfillment of the contract is subject to the proviso that there are no obstacles to fulfillment due to national and international export and import law regulations or any other legal regulations.

Section 14 – Miscellaneous
  1. The Licensee permits the Licensor for an unlimited period of time and free of charge to reproduce the Licensee´s company name and to display a company logo of the Licensee on the websites, on professional social platforms (such as LinkedIn or Xing), and on the occasion of speeches and presentations of the Licensor in order to inform about the type of services it provides to the Licensee.
  2. The rights of use granted will cease with the expiration of the license period.
  3. This License Agreement including any agreements in the offer or ordering process constitutes the entire understanding between the Parties on the occasion of the granting of the license. No oral side agreements have been concluded. Amendments and supplements must be made in writing in order to be valid. This also applies to a possible waiver of the written form requirement itself.
  4. Should any provision of this License Agreement be invalid, or should a contractual loophole exist, the Parties undertake to replace it by mutual agreement with a legally valid provision that comes as close as possible to the economic purpose pursued by the Licensor with the initial provision. The same shall apply in the event of a contractual loophole being closed.
  5. This License Agreement and any rights and claims hereunder or in connection herewith shall be governed by German law. The place of jurisdiction is Munich, insofar as the Licensee is a merchant within the meaning of commercial law or a public authority, institution, body, or the like or a foundation.
Annex

Functional Description