PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE YOU (i) BREAK THE SEALED SOFTWARE PACKAGE, (ii) INSTALL, COPY, USE AND/OR (iii) DOWNLOAD ANY PIECE OF AIMSUN SOFTWARE.
This is a legally binding end-user license agreement (the “Agreement”) between you (the “Licensee”) and Aimsun SLU with registered offices at Ronda Universitat 22 B, Barcelona 08007 Spain, with Tax Identification Number B61504775.
BY BREAKING THE SEALED SOFTWARE PACKAGE AND/OR BY PRESSING THE “YES” BUTTON AND/OR BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS END-USER LICENSE AGREEMENT AND YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. AIMSUN SLU WILL LICENSE THE SOFTWARE ONLY IF YOU AGREE TO ALL OF THESE TERMS.
IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, SELECT THE “NO” BUTTON AND DO NOT INSTALL, COPY OR OTHERWISE USE THE SOFTWARE AND PROMPTLY RETURN THE UNOPENED SOFTWARE PACKAGE AND THE ACCOMPANYING ITEMS (INCLUDING PRINTED MATERIALS), IF APPLICABLE. YOU WILL BE REFUNDED THE APPLICABLE FEE OR THE APPROPRIATE PORTION
This Agreement will be effective on the date that the Licensee agrees to these terms and conditions.
When used in this Agreement, the terms which appear below shall have the following meaning:
a) “Software” shall mean i) the Aimsun application software and any of its components or plug-in applications, in object code form only, ii) any documentation concerning said Software supplied by Aimsun SLU to Licensee, and iii) any versions, modifications, enhancements, updates or similar changes to said software and/or documentation, whether developed by or for Aimsun SLU, which may, at Aimsun SLU’s sole discretion, be provided by Aimsun SLU to Licensee. “Software” will only include the applications and components that have been effectively paid and licensed to the Licensee according to the purchased made as agreed with Aimsun SLU.
b) “Workstation” means a monitor and keyboard capable of accessing the Software with the appropriate key code.
c) “Master Key” means the hardware-based or software-based protection key that enables you to activate and use the Software.
d) “Key Codes” means the codes that activate the Software that you receive when: (i) you install the Software; and (ii) you make the complete payment of this license.
This Software program is a proprietary product of Aimsun SLU and is protected by copyright laws. Use of this Software is governed by this license agreement and applicable law including copyright law. All rights are reserved by Aimsun SLU.
a) License grant
Upon your acceptance of this Software license Agreement by (i) pressing the “YES” button; (ii) installing, copying or otherwise using the Software; and/or (iii) breaking the sealed Software package, Aimsun SLU grants you a personal, non-exclusive, non-transferable, limited license to download, install and use a copy of the Software in object code on one computer, for internal Licensee’s purposes only, for research and educational purposes only, or for evaluation purposes only, according to the purchase made and agreed with Aimsun SLU, or for commercial purposes to provide services to a third party, which does not mean any modification of the use restrictions established herein. The Licensee shall not have the right to transfer the use of the software, and the Licensee is not allowed to make the Software accessible to its clients, or to include it in any developed final product without prior consent from Aimsun SLU. This license will only be valid for one installation of the Software.
This Agreement authorizes the use of the Software by Licensee. The Licensee must have a license and the Master Key for each workstation that is capable of operating the Software.
c) Master Key
Aimsun SLU furnishes or has furnished the Licensee with a Master Key that activates said Software.
d) Key Codes
Aimsun SLU provides the Licensee with the appropriate codes that activates the Software. Aimsun SLU will provide the Licensee with a provisional Key Code for the Software installation and with the definitive Key Code when all payments are made.
e) Reservation Clause
Aimsun shall not be obligated to fulfil this agreement if such fulfilment is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions.
f) Export Control in Sales contracts (Compliance with Export Control Regulations)
i. If Purchaser transfers goods (hardware and/ or software and/ or technology as well as corresponding documentation, regardless of the mode of provision) delivered by Aimsun or works and services (including all kinds of technical support) performed by Aimsun to a third party worldwide, Purchaser shall comply with all applicable national and international (re-) export control regulations. In any event Purchaser shall comply with the (re-) export control regulations of the Federal Republic of Germany, of the European Union and of the United States of America.
ii. If required to conduct export control checks, Purchaser, upon request by Aimsun, shall promptly provide Aimsun with all information pertaining to particular end customer, destination and intended use of goods, works and services provided by Aimsun, as well as any export control restrictions existing.
iii. Purchaser shall indemnify and hold harmless Aimsun from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any noncompliance with export control regulations by Purchaser, and Purchaser shall compensate Aimsun for all losses and expenses resulting thereof, unless such noncompliance was not caused by fault of the Purchaser. This provision does not imply a change in burden of proof.
4.1. Aimsun SLU shall defend, at its expense, any action brought against Licensee to the extent that the action is based only on an assertion that the Software, or any part thereof provided under this Agreement, when used within the scope of this Agreement, infringes a patent or copyright or trade secret of a third party, and it shall pay any settlement and any costs, damages and expenses finally awarded against Licensee which are solely attributable to such claim provided that Licensee gives Aimsun SLU prompt written notice of the existence of any such claim or proceeding, Aimsun SLU is given the exclusive control of the defense or settlement thereof and that Licensee provides to Aimsun SLU all information it has available in connection with such claim and all reasonable assistance in connection therewith.
4.2. In the event that a third party brings such an infringement claim, or if Aimsun SLU believes there is the possibility of such claim, Aimsun SLU shall have the rights at its sole election to (i) procure Licensee the right to continue using the Software, or (ii) modify or replace the Software so that it becomes non-infringing, or (iii) terminate the rights and license granted hereunder and refund Licensee the license fees paid to Aimsun SLU.
4.3. Aimsun SLU shall have no liability under this clause 4 if the claim for any infringement is based upon acts or omissions of Licensee or third parties (such as, without limitation, if based on modifications made to the Software by Licensee or by any third parties, or on the use of items not provided by Aimsun SLU, or on a use of the Software by Licensee in a manner contrary to the provisions of this Agreement). Licensee shall indemnify Aimsun SLU from and against any claims described in this clause which may be brought against Aimsun SLU.
4.4. The above paragraphs contain all liability and obligations of Aimsun SLU with respect to infringement of any industrial or intellectual property right and trade secrets by the Software.
5.1. Subject to imperative legal provisions of any applicable law and to the provisions of this Agreement, Licensee shall not modify, decompile, disassemble, recreate, reverse engineer, copy, reproduce or make subsequent or derivative versions of the Software, or take any other action inconsistent with Aimsun SLU’s intellectual or industrial property rights in the Software without the prior written consent of Aimsun SLU.
5.2. Licensee may make one (1) backup copy of the licensed Software to support the use of the Software in accordance with this Agreement.
5.3. This license is a single license for each workstation. Aimsun SLU shall provide or has provided Licensee with the appropriate Key Code that activates the Software. If agreed with Aimsun SLU, the Licensee may install and use only one copy of the Software on one server, to be used for different workstations.
5.4. No authorization by Aimsun SLU shall be required for the installation, loading, reproduction and execution of the Software when those activities are necessary for Licensee to use the Software in accordance with its intended use and they are carried out in accordance with the particular type of license granted.
5.5. Licensee shall not transfer, sublicense, assign or deliver the Software to any third party. Licensee shall not export the Software from the country where the Software is furnished to Licensee.
6.1. The licensed Software (including any authorized copies made by Licensee) and all components thereof, as well as all intellectual and industrial property rights therein are and shall at all times remain, the property of Aimsun SLU (or of Aimsun SLU’s third-party suppliers, as the case may be), and Licensee shall have no right, title, or interest therein, except as expressly set forth in this Agreement.
6.2. Licensee may not remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Software. All copies of Software (including the back-up copy) shall contain all copyright, trademarks and proprietary notices as in the original.
7.1. Upon breaking the sealed Software package, installing, downloading, copying or using the mentioned Software, whichever occurs first, Licensee shall bear all risk of loss and damage of the Software. In the event of said damage or loss occurring, Aimsun SLU shall not be bound to replace or to repair any lost or damaged Software.
7.2. Aimsun SLU warrants, for a period of ninety (90) days as from the date of break of the sealed Software package, installation, download, copy and/or use, the first that occurs, that the licensed Software will substantially perform in accordance with its specifications as set forth on its documentation. Any request made by the Licensee under this warranty provision shall only be valid if written notice of the defect is sent by Licensee to Aimsun SLU within the ninety-day (90) period mentioned above.
7.3. During the period to which the warranty mentioned in the paragraph above applies, the Licensee’s exclusive remedy will be that Aimsun SLU will correct or replace, at Aimsun SLU’s discretion, the Software found defective. If during the applicable warranty period, Aimsun SLU is unable to correct the defects of the Software, or if the replaced Software is found also defective during a ninety-day (90) period, then Aimsun SLU will grant, at the Licensee’s option and as its exclusive remedy, a credit or refund for the price paid for said Software.
7.4. Aimsun SLU will not be bound to replace any lost or stolen Master Key. The loss or stealing of the Master Key will imply the termination of the present license.
7.5. Other than Aimsun SLU’s obligations set forth in this Agreement, Aimsun SLU shall not be liable for any damages or losses, whether direct or indirect, arising out of or in connection with the failure of the Software to substantially conform to its specifications.
7.6. The warranty does not extend to any failure of the Software caused by: i) any modification or change not made by Aimsun SLU; ii) any noncompliance caused by use of the Software in combination with products, goods, services or other items furnished by anyone other than Aimsun SLU; iii) any use of the Software in an operating environment incompatible with the Software or if otherwise the Licensee’s hardware causes the Software malfunction. iii) any other circumstances beyond the control of Aimsun SLU, including especially breakdown or inaccessibility of Internet nodes due to hardware or software problems outside of the Aimsun SLU web server, including incompatibilities arising from alterations of non- Aimsun SLU Software.
7.7. The Licensee acknowledges that access to the Aimsun SLU web server may be interrupted by technical problems for short periods of time. Aimsun SLU will restore access as soon as possible.
7.8. Except as provided in this Agreement, Aimsun SLU makes and Licensee receives no other warranties of any kind. No distributor, agent or Aimsun SLU employees or any third party is authorized to modify, extend or grant any other warranty, with respect to the warranties set forth in this clause.
8.1. In addition to the right to use the Software and the warranty set forth in this Agreement, Licensee will not receive from Aimsun SLU, any additional maintenance service.
8.2. Should the Licensee wish to receive any enhancements and new versions, the parties shall enter into a Software Updates Subscription Agreement under mutually acceptable terms and conditions.
8.3. Should de Licensee wish to receive technical support, the parties shall enter into a Support Services Agreement under mutually acceptable terms and conditions.
9.1. Except in the event of Aimsun SLU’s wilful misconduct, death or personal injury, and except as otherwise expressly provided for in this Agreement, Aimsun SLU’s entire liability for any damages and losses arising out of, connected with, or resulting from the Software, its use or in general this Agreement, regardless of the remedies or form of action (whether arising by contract, negligence or otherwise) shall not in the aggregate exceed the license fees paid by Licensee to Aimsun SLU under this Agreement.
9.2. In no event shall Aimsun SLU be liable for any damages, whether direct or indirect, which may be characterized as loss of profits or revenues, loss of business, loss of opportunities, cost of substituted services, programs or items, downtime costs, loss of data, loss of image or loss of commercial reputation, nor for any claim brought against Licensee by any of its customers, and that even if Aimsun SLU has been advised of the possibility of such damages. Licensee shall fully indemnify Aimsun SLU in the event of an action brought against Aimsun SLU by a third party in connection with this Agreement.
9.3. Except if this Agreement expressly provides otherwise, any action brought against Aimsun SLU under or arising out of this Agreement must be commenced within one (1) year after such cause of action accrues.
9.4. Licensee acknowledges that the foregoing limitations on recoverable damages constitute a bargained-for allocation of risks between Licensee and Aimsun SL and that Aimsun SLU’s charges for the items and services provided under this Agreement take into account the agreement reached on the limitation of liability so that, without the benefit of such provisions, Aimsun SLU’s charges under this Agreement would have been substantially higher.
10.1. In consideration for the rights granted to Licensee hereunder, Licensee shall pay to Aimsun SLU the corresponding fees of the license in the terms and conditions agreed with Aimsun SLU.
10.2. Except if the parties expressly agreed otherwise, payment shall be made by bank transfer, in immediately available funds, to the bank account that Aimsun SLU may designate from time to time. Payment shall be made in Euros, and for that purpose the amounts due shall be converted into Euros at the exchange rate applicable on the date payment is made.
10.3. All taxes, charges and withholdings applicable to the fee payments provided for in this clause shall be borne and be paid by Licensee.
11.1. Licensee acknowledges that the Software embodies substantial creative efforts and confidential information, ideas and expressions, and that the value of such items would be substantially harmed if detailed knowledge on the way of programming them were disclosed to third parties or by use contrary to the provisions of this Agreement.
11.2. Licensee shall hold the Software in strict confidence and it shall take all reasonable precautions necessary to safeguard said confidentiality (including without limitation the execution of confidentiality agreements with those of its employees having access to the Software). Licensee shall not disclose, provide or otherwise make available all or part of the Software in any form to any person other than its own employees (and in this case on a need-to-know basis) and to Aimsun SLU’s employees, without Aimsun SLU’s prior written consent.
12.1. This Agreement shall become effective by breaking the sealed Software package, installing, downloading, copying or using, the Aimsun SLU Software by Licensee, the first that occurs.
12.2. Aimsun SLU may terminate this Agreement by giving written notice to the Licensee if:
(i) the Licensee fails to make any payment when due as agreed with Aimsun SLU,
(ii) if the Licensee breaches any of its contractual obligations and fails to cure said breach within ten (10) days following written notice thereof, provided that if said breach is not curable then Aimsun SLU may immediately terminate the Agreement, without any cure period, by giving written notice of termination; if the Licensee request or is in voluntary or involuntary bankruptcy or situation of insolvency, except in the case of guaranteeing sufficiently its capacity to fulfil the obligations arising from this Agreement until its termination, as well as to be held responsible for non-fulfilment of the Agreement.
12.3 If the Software is licensed for evaluation purposes only, such licensee shall be terminated once the provisional term agreed with Aimsun SL expires. Upon the expiration of that period, Licensee may choose to acquire the Software, in which case Licensee shall have to pay license fees and accept the terms and conditions of this Agreement.
12.4 Upon termination of this Agreement, Licensee shall immediately cease to use the Software, and within fifteen (15) days following termination: (i) it shall return to Aimsun SLU all copies of the Software as well as all other documents, materials and information, in whatever form and support, concerning the Software, that the Licensee has received from Aimsun SLU; (ii) in the event that any information or data concerning the Software was stored in a central processing unit or other storage medium or facility and could not be delivered to Aimsun SLU, Licensee shall completely and definitely delete all said information and data and discontinue all use of the Software; and (iii) Licensee shall certify in writing to Aimsun SLU that all the items and information referred to above in this clause 12.3 have been either returned or deleted.
12.5 Clauses 4, 6 and 11 shall survive termination of this Agreement.
13.1 Licensee may not assign or transfer in any way this agreement or any rights granted hereunder without the prior written consent of Aimsun SLU. Any assignment, or transfer without Aimsun SLU’s prior written consent, either voluntary or by operation of the law, shall entitle Aimsun SLU to immediately terminate the Agreement.
13.2 Aimsun SLU may assign this Agreement without the prior consent of Licensee. In any event, the assignee shall be bound by all the terms and conditions set forth hereunder.
14.1 The construction, validity and performance of this Agreement shall be governed in all respects by Spanish law, excluding choice of law provisions and the statutes on international sales of goods (such as, without limitation, the U.N. Convention, dated April 11, 1980, on the Contracts for International Sales of Goods).
14.2 The parties expressly submit the resolution of any and all disputes arising in connection with this Agreement to the courts of the city of Barcelona (Spain), waiving their right to submit them to other competent courts, if any.