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This End-User License Agreement (“EULA”) is a binding legal agreement between you, either as an individual or, an entity and its Affiliates (“Licensee”) and Licensor APTIS GmbH (“APTIS”) concerning its Software (as defined below). An amendment or addendum to this EULA may accompany the Software, and any such amendment or addendum shall be considered part of the EULA.

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IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS EULA, THE LICENSEE MUST NOT INSTALL, COPY, DOWNLOAD OR OTHERWISE USE THE SOFTWARE.

1. Definitions

“Accessible Code” means source code that is unprotected and accessible.

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“User License” means a license granted under this EULA to the Licensee to permit an Authorized User to use the Software. The number of User Licenses granted to the Licensee is dependent on the Fees paid by the Licensee.

2. Grant of Licence

The Software is licensed, not sold. Upon Licensee’s acceptance of this EULA, APTIS grants the Licensee the right to use the Software subject to the following:

2.1 Paid License

2.1.1 Authorized Users

The licenses granted are subject to the condition that the Licensee must ensure the maximum number of Authorized Users accessing and using the Software concurrently is equal to the number of User Licenses for which the necessary Fees have been paid to the Reseller or APTIS. The Licensee may purchase additional User Licenses at any time on payment of the appropriate Fees to the Reseller or APTIS.

2.1.2 Backup

The Licensee is permitted to copy the Software for data protection, archiving and backup purposes only and for no other purpose. Only the minimum number of necessary backup copies may be made.

2.2 Evaluation License

2.2.1 Installation and Use

APTIS may in its sole discretion provide evaluation copies of the Software, which may have limited functionality, to a Licensee to assess the Software. Any such evaluation copies will be provided under an Evaluation License that limits the period during which the Licensee may download, install, use and operate the Software (“Evaluation Period”) and limits the number of temporary users. On the expiry of the Evaluation Period the Software will cease to function and the Licensee must remove and delete all copies of the Software in its possession.

2.3 General License Terms

2.3.1 Scope

Each license granted by APTIS under this EULA is worldwide, nonexclusive and nontransferable, unless otherwise specified in writing.

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(a) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive, any part of or the whole of the Software;
(b) sell, sublicense, distribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form any part of or the whole of the Software or any data/information not owned by the Licensee;
(c) make the Software available by rental, timesharing, a subscription service, hosting or outsourcing; and
(d) directly or indirectly access or use any Embedded Software independently of the rest of the Software.

2.3.2 Duration

Subject to the terms of this EULA and unless terminated earlier in accordance with this EULA, the term granted hereunder shall be:

(a) for a Paid License of the downloaded Software, perpetual;
(b) for a Cloud Product, the period of time of the Paid License subscription or renewal, or
(c) for an Evaluation License, the Evaluation Period.

2.3.3 Protection Mechanisms

The Software includes license protection mechanisms that are designed to manage and protect the intellectual property rights of APTIS and its third party suppliers. Licensee must not modify, alter, attempt to defeat or defeat such protection mechanisms or the use rules that the protection mechanisms are designed to enforce. Any such violation by the Licensee will result in the immediate termination of this license.

2.3.4 Permitted Computers

Except as otherwise agreed in writing by APTIS, the Licensee must only install the Software and make the Software available for use on hardware systems owned, leased or controlled by the Licensee.

2.3.5 Responsibility for Non-controlled systems

If APTIS permits the Licensee to install the Software or make the Software available for use on hardware systems not owned, leased or controlled by the Licensee (“Non-controlled Systems”), the Licensee will ensure the terms of this EULA are complied with by users of such Non-controlled Systems and the Licensee will indemnify APTIS for all costs, damages and loss APTIS suffers arising from such installation or use of the Software on Non-controlled Systems.

2.4 Deletion at End of Subscription Term

We may remove or delete Your Data within a reasonable period of time after the termination of your Subscription Term. We do not guarantee to archive Your Data after your Subscription Term has ended.

3. Support and Maintenance

3.1 Additional Software/Services

This EULA applies to updates, supplements, add-on components, or Internet-based services components which includes use of “cloud” based applications, of the Software (“Supplementary Software”) that APTIS may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software, unless APTIS provides other terms along with any Supplementary Software. APTIS reserves the right to discontinue any Internet-based services provided to the Licensee or made available to the Licensee through the use of the Software.

3.2 Support and Upgrades

Any support services provided by APTIS will be substantially as described in any separate written materials provided by APTIS to the Licensee and may be subject to the payment of additional Fees if they are excluded in our SLA.

4. Copyright

A. The Products and all copies thereof are protected by copyright and other intellectual property laws and treaties. APTIS or its relevant third parties own the title, copyright, and all other intellectual property rights in the Products and all subsequent copies of the Products.

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D. You may not copy or embed elements of the Source Code into other applications, or publish, transmit or communicate the Source Code to other parties other than yourself or the entity you represent.

4.1 Licensee shall not remove markings

Licensee may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on or in the Software. Licensee is not granted any rights to any trademarks or service marks of APTIS.

4.2 Warranty

The APTIS warrants that:

• it has the right to enter into this licence and to grant to the Licensee a licence to use the Software as contemplated by this EULA;

• the Software will conform in all material respects to the Software’s documentation; and

• the Software is free from viruses, worms, time bombs, Trojan horses and other harmful code.

5. Fees

The Licensee must pay all Fees by the due date and in the manner directed at the time of Purchase of the Software. Failure to pay Fees by the due date will result in the immediate termination of the licenses granted under this EULA.

6. Termination

6.1.

Without prejudice to any other rights and in addition to any other termination rights in this EULA, APTIS may terminate with immediate effect, this EULA if:

(a) the Licensee fails to comply with the terms and conditions of this EULA; or
(b) Licensee suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(c) Licensee commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of Licensee with one or more other companies or the solvent reconstruction of Licensee; or
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of Licensee (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of Licensee with one or more other companies or the solvent reconstruction of Licensee; or
(e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over Licensee (being a company); or
(f) the holder of a qualifying floating charge over the assets of Licensee (being a company) has become entitled to appoint or has appointed an administrative receiver; or (g) a person becomes entitled to appoint a receiver over the assets of Licensee or a receiver is appointed over the assets of Licensee; or
(h) a creditor or encumbrancer of Licensee attaches or Licensee takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of Licensee’s assets and such attachment or process is not discharged within 14 days; or
(i) Licensee suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(j) any event occurs, or proceeding is taken, with respect to Licensee in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 11.1(a) to (i) (inclusive).

6.2.

Immediately upon termination of a license granted under this EULA, the Licensee must at its own cost:

(a) cease permitting access to and procure that all Authorised Users immediately cease all use of the Software; and
(b) remove any copies of the Software from its computer systems or any Uncontrolled Systems;
(c) provide APTIS with written certification that it has destroyed any copies of the Software it has made, including but not limited to all Accessible Code in its possession, custody or control.

7. Limited Warranties

To the maximum extent permitted by applicable law, APTIS and its third party suppliers provide the Software and any Maintenance (Clause 3) AS IS AND WITH ALL FAULTS, and except otherwise expressly contained in the EULA hereby disclaim all other warranties or remedies, whether express, implied or statutory, including but not limited to the performance, condition, merchantability, fitness for a particular purpose, data accuracy, availability, or reliability. Additionally, Licensee acknowledges that APTIS’s Cloud Products are hosted by third-parties, and that the availability of those Cloud Products is subject to a third party’s Service Level Agreement.

8. Embedded Software

The APTIS’s Software contains Embedded Software that is licensed from its respective third party owner. Additional obligations may apply to the use of Embedded Software by the Licensee that is not in accordance with the use of the Software under this EULA. In such circumstances, the Licensee must acquire any licenses and consents from the relevant third parties for the use of any Embedded Software by the Licensee.

9. Training Services

We will provide training services purchased in an Order in accordance with the descriptions and conditions for those services set forth in the Order and the accompanying service descriptions or datasheets. APTIS shall retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any training services we provide. Any Training Materials provided to you may be used only in connection with the Products subject to the same use restrictions for the Products.

10. Licensee Publicity Rights

During the license period, the licensee grants APTIS the right to use the general license information of the licensee

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In addition, the licensee agrees APTIS, unless contradicted in writing, the use of advertising, press releases, publicity, articles, websites, marketing, promotional, sales collateral materials and the name of Licensee or any of its affiliates, or any partner or employee of Licensee or its affiliates, or any trade name, trademark, service mark, logo, trade devise, or simulation thereof owned by Licensee or its affiliates. Licensee can deny Licensor this right at any time by submitting a written request via email to info@aptis.support and requesting to be excluded from Software promotional material. Requests generally are acted upon within thirty (30) calendar days.

11. Indemnification

11.1 Indemnification by APTIS

APTIS will indemnify and hold harmless Licensee against all costs, expenses, losses and claims made against Licensee as a result of any infringement of a third party’s intellectual property rights arising from the Licensee’s or its Authorized Users use of the Software. Licensee must notify promptly APTIS of the charge of infringement or of the legal proceeding, give APTIS sole control of the defense and related settlement negotiations, and Licensee must provide APTIS, at APTIS’s expense, with reasonable assistance and information, but no cost or expense shall be incurred for the account of Licensee without its prior written consent.

If the Software becomes, or in the opinion of APTIS may become, the subject of a claim of infringement of any third party’s intellectual property rights, APTIS may, at its option and in its discretion: (a) procure for Licensee the right to use the Software free of any liability; (b) replace or modify the Software to make it non-infringing; or (c) terminate immediately this EULA and refund any license Fees related to this Software paid by Licensee. The foregoing states the sole liability of APTIS and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Software or any other items provided by APTIS under this EULA.

11.2 Indemnification by Licensee

Licensee will indemnify and hold harmless APTIS against all costs, expenses, losses and claims made against APTIS as a result of any infringement of a third party’s intellectual property rights arising from the Licensee’s or its Authorized User’s unauthorized use of the Software under this EULA. APTIS must notify promptly Licensee of the charge of infringement or of the legal proceeding, give Licensee sole control of the defense and related settlement negotiations, and APTIS must provide Licensee, at Licensee’s expense, with reasonable assistance and information, but no cost or expense shall be incurred for the account of APTIS without its prior written consent.

12. Limitation of Liability

12.1 APTIS shall not be liable to the Licensee where faults arise from:

(a) the possession, use, development, modification or maintenance of the Software (or any part thereof) by the Licensee other than in accordance with this EULA, if the infringement would have been otherwise avoided;
(b) misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission by;
(c) any breach of the Licensee’s obligations under this EULA;
(d) any modification not authorized by APTIS resulting in a departure from this EULA; or
(e) any operator error on the part of the Licensee.

For clarity, the maximum liability of APTIS under this EULA shall not exceed three times the Fees actually paid by the Licensee for the Software.

13. Export Restrictions

The export of the Software from the country of original Purchase may be subject to control or restriction by applicable local law. Licensee is solely responsible for determining the existence and application of any such law to any proposed export and for obtaining any needed authorisation. Licensee agrees not to export the Software from any country in violation of applicable legal restrictions on such export.

14. Governing Law and exclusions

14.1 Applicable Law

This EULA and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the Laws of Germany and shall be submitted to the exclusive jurisdiction of the German courts.

15. Severability

15.1

If any provision of the EULA (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

15.2

If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable and to give effect to the commercial intention of the parties.

16. Confidentiality

Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure. Any APTIS Technology and any performance information relating to the Products shall be deemed Confidential Information of APTIS without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document:

(I) was rightfully in its possession or known to it prior to receipt of the Confidential Information;
(II) is or has become public knowledge through no fault of the Receiving Party;
(III) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or
(IV) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product.

17. Waiver

17.1

If APTIS fails, at any time during the term of this EULA, to insist upon strict performance of any of the Licensee’s obligations under this EULA, or if APTIS fails to exercise any of the rights or remedies to which it is entitled under this EULA, this shall not constitute a waiver of such rights or remedies and shall not relieve the Licensee from compliance with such obligations.

17.2

A waiver by APTIS of any default shall not constitute a waiver of any subsequent default.

17.3

No waiver by APTIS of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to the Licensee in writing.