Chiastek
The Multiphysics Simulation company

MASTER SOFTWARE LICENSE AGREEMENT

 

 

This Master Software License Agreement (this "Agreement") governs terms and conditions of use of all software owned by Chiastek and its affiliates.

Only a signed contract can supersede this general agreement


 

1INTRODUCTION.  The terms and conditions of this Agreement apply to the licensing of Software and the provision of Maintenance by CHIASTEK to Customer hereunder.  From time to time, Software licenses and/or Maintenance may be acquired under this Agreement by one or more agreed upon Order Schedule(s) referencing this Agreement. Each mutually agreed upon Order Schedule shall be attached hereto and become an integral part of this Agreement. You understand that, if you purchased the software program from an authorized reseller of CHIASTEK, that reseller is not CHIASTEK agent and is not authorized to make any representations, conditions or warranties, statutory or otherwise, on CHIASTEK behalf nor to vary any of the terms or conditions of this agreement.

 

 

2DEFINITIONS.

2.1Authorised Users” means Customer’s: (i) employees, and (ii) contractors working on Customer’s premises who are not competitors of CHIASTEK and have agreed in writing to use restrictions and confidentiality obligations no less restrictive than those set forth in this Agreement.  Customer shall at all times be responsible for its Authorised Users’ compliance with this Agreement.

2.2 “Company-Internal Users” are those Users of the Software who have an employment relationship with the Customer.

2.3 “Company-External Users” are all other Users of the Software who use the computer capacity of the Customer without having an employment relationship with the Customer or a company which the Customer controls by way of majority ownership. For these Users, separate provisions in addition to this Master Agreement shall apply which are provided in the Order Schedule or the Order Confirmation of CHIASTEK. In particular, the fees and the terms of payment for the use of the Software by Company-External Users shall be determined in accordance with  the Order Schedule or the Order Confirmation of CHIASTEK.

2.4Customer Computer(s)” means the Customer computer specifically identified in the Order Schedule.  The Customer Computer runs the license manager program accompanying the Software and is sometimes referred to herein as the “license server”.

2.5Documentation” means the user manuals and other user documentation, in any form and on any media, provided by CHIASTEK for use with the Software.

2.6Installation Site” means the Customer facility identified in the Order Schedule where the Customer Computer resides. 

2.7“Lease License” means a license of short-term duration (often a year).  Lease Licenses acquired by Customer shall have a fixed term as set forth in the Order Schedule, and if no term is specified in the Order Schedule, the Lease License term shall be one (1) year from when CHIASTEK accepts the Order Schedule, subject to termination as set forth in this Agreement.  Unless otherwise stated in the Order Schedule, for a Lease License, Maintenance during the license term is included in the Lease License fee.

2.8“Maintenance” means software maintenance and technical support as described in Section 6.1 and 6.2 of this Agreement. 

2.9Order Schedule” means CHIASTEK’s form Order Schedule or any other agreed upon order schedule which references this Agreement (by citing the CHIASTEK Agreement Number above or otherwise) and sets forth, among other things, the Software and/or Maintenance to be provided by CHIASTEK to Customer hereunder.

2.10Paid-up License means a license which has a term beginning on the date specified in the Order Schedule and continuing perpetually, subject to termination as set forth in this Agreement. 

2.11 Software” means the executable code version of the computer program(s) specified in an agreed to Order Schedule(s), including any error corrections and subsequent releases thereto furnished by CHIASTEK to Customer under Maintenance. 

Additional terms with specific meanings are defined near where they first appear in this Agreement. 

2.12“Non-Commercial Use" of the Software is the use of the same for demonstration and testing purposes as well as for research and teaching. The use of the Software for research and teaching in this connection shall be purely for educational purposes (e.g. by universities, higher education institutions)

 

2.13"Commercial Use" of the Software is any use of the Software not falling within Non-Commercial Use within the meaning of clause 2.12 of his Agreement

 

3GRANT OF LICENSE.  Subject to the terms and conditions of this Agreement, CHIASTEK grants to Customer, and Customer accepts from CHIASTEK, a non-exclusive, non-transferable license to use the Software (together with accompanying Documentation, if any), solely for Customer's own internal data processing purposes.  This license shall be in accordance with the limitations of the license type(s) and in the quantities specified in the Order Schedule.  The license term(s) (duration) shall be as specified in the Order Schedule, subject to early termination as set forth in this Agreement. 

4LICENSE TYPES. 

4.1Nodelock License:  If Customer acquires a Nodelock License, installation and use of the Software will be limited to a single Customer Computer.  Software licensed under a Nodelock License may only be accessed or used by Authorised Users who are at the Installation Site.

4.2Named User License:  If Customer acquires a Named User License, access and use will be restricted to the individual named user identified in the license management portion of the Software.  Each named user designated by Customer must be an individual who at all times during the designation meets the definition of an “Authorized User”.  Group or shared logins are strictly prohibited. 

4.3Network (Floating) Licenses:  If Customer acquires a Local Network License, Country Network License, or Regional Network License, access to and use of the Software will be controlled by a single Customer Computer (license server) and Authorised Users may access and use the Software on client machines served by the license server, provided that access to and use of the Software at any one time does not exceed the number of floating licenses (or “licensing units” in the case of an CHIASTEK “Licensing System” – see Section 4.3.1) acquired by Customer for that Software.  In addition, Customer shall strictly comply with the following restrictions: (i) if Customer acquires a Local Network License (also sometimes referred to simply as a Network License), the Software may only be accessed or used by Authorized Users at the Installation Site, or if Customer’s local area network is shared by a grouping of Customer facilities, then by Authorized Users at any Customer facility within ten (10) miles of the Installation Site; (ii) if Customer acquires a Country Network License, the Software may only be accessed or used by Authorized Users at Customer facilities located within the country where the Installation Site is located; (iii) if Customer acquires a Regional Network License, the Software may only be accessed or used by Authorized Users at Customer facilities located in Europe, and countries in the Middle East and Africa as may be designated by CHIASTEK from time to time (collectively, CHIASTEK’s “EMEA Region”); or (iv) if Customer acquires a Worldwide Network License, the Software may be accessed or used by Authorized Users at Customer facilities located worldwide. Any network (floating) license acquired by Customer hereunder shall be deemed a Local Network License, unless expressly identified in the Order Schedule as a “Country”,  Regional” or “Worldwide” Network License.

4.3.1 Licensing System-Specific Terms: If Customer licenses Software under the CHIASTEK CosiMate.Token licensing system, or other similar CHIASTEK licensing system (each a “Licensing System”) then in addition to the above terms in Section 4.3, the following Licensing System-specific terms apply: Under a Licensing System, Customer purchases “licensing units” (e.g., “Tokens” under the CosiMate.Token licensing system).  A specified number of licensing units are required to run each instance of any Software licensed under the Licensing System.  Licensing units acquired under one Licensing System cannot be used to run Software under another Licensing System.  Software licensed under a particular Licensing System is strictly limited to the software identified in the applicable Licensing System product attachment (e.g., “Token Summary Sheet” or “Enterprise Advantage Table”, as applicable) attached to or incorporated into the Order Schedule or this Agreement.  Customer shall not be entitled to use any other software programs under the Licensing System, whether or not such other software programs are marketed by CHIASTEK under the same Licensing System.

4.4Evaluation/Test License: If Software is licensed to Customer under an Evaluation/Test License, Customer agrees that, NOTWITHSTANDING ANYTHING TO THE CONTRARY ELSEWHERE IN THIS AGREEMENT: (i) Customer may use such Software for evaluation/test, non-production purposes only; (ii) the term (duration) of the evaluation/test license shall be as set forth in the Order Schedule but shall in no event exceed ninety (90) days; (iii) such Software is provided on an "as is" basis, with no warranties of any kind; and (iv) CHIASTEK has no obligation to provide any Maintenance for such Software.

4.5  Product-Specific Terms.  Certain Software products and/or licensing systems may be subject to additional product-specific terms, as set forth in the applicable schedules, exhibits or addenda to this Agreement. 

 

5RESTRICTIONS AND PROTECTIONS. 

5.1Customer acknowledges that the Software and its structure, organisation and source code constitute and contain valuable trade secrets of CHIASTEK and/or its suppliers.  Accordingly, Customer shall not: (i) reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software, or allow any third party to do the foregoing, except to the extent explicitly permitted by applicable law without possibility of contractual waiver; (ii) modify, adapt, alter, translate or create derivative works from the Software or Documentation; (iii) sublicense, rent, loan, lease, sell, or otherwise transfer all or part of the Software or Documentation to any third party except as expressly permitted under this Agreement; (iv) allow any third party to access or use the Software on a service bureau, application service provider, time-sharing, or similar basis; (v) disable, modify or circumvent the license management system provided with the Software; (vi) remove, alter, or obscure any proprietary notices, labels, or marks from the Software or Documentation; (vii) disclose results of any Software benchmark tests without CHIASTEK’s prior written consent; (viii) disclose, display, or permit access to or use of the Software or Documentation by persons other than Authorised Users using the Software and Documentation within the scope of the license acquired by Customer; or (ix) otherwise use or copy the Software or Documentation except as expressly permitted under this Agreement.  Customer agrees to notify CHIASTEK immediately of any unauthorised access to or use of the Software. 

5.2Customer may copy the Software as reasonably required in conjunction with permitted use under this Agreement and for backup purposes.  Any such copies made by Customer must reproduce and include, in exact form, all proprietary rights notices.  Customer shall maintain records of the location of each copy of the Software, and the location and identity of the computers on which the Software is installed. 

5.3The Software and Documentation, and all worldwide intellectual property rights therein, are and remain the property of CHIASTEK and/or its suppliers.  Nothing in this Agreement will be deemed to convey to Customer any title, ownership, or other intellectual property rights in or related to the Software or Documentation, and Customer agrees not to assert any such rights.  All rights in and to the Software and Documentation not expressly granted to Customer in this Agreement are reserved by CHIASTEK and/or its suppliers. 

5.4Upon not less than fifteen (15) days written notice, CHIASTEK may audit Customer’s installation and use of the Software and Documentation.  Customer shall cooperate with CHIASTEK’s audit and provide reasonable assistance and access to information.  In addition to any other remedies available to CHIASTEK, Customer agrees to pay within thirty (30) days of written notification any fees and charges applicable to Customer’s use of the Software and Documentation in excess of Customer’s license rights.  CHIASTEK shall not be responsible for Customer’s costs incurred in cooperating with the audit.  CHIASTEK shall comply with Customer’s reasonable security procedures while on Customer’s facilities.

5.5Except as required by applicable law, or as necessary for Customer to enforce or exercise its rights hereunder, Customer shall not disclose the terms of this Agreement or CHIASTEK’s pricing in connection with this Agreement to any third-party. 

6MAINTENANCE. 

6.1If Customer acquires Maintenance for Software, then during the applicable Maintenance term and subject to the terms and conditions of this Agreement, CHIASTEK will provide Customer with error corrections and subsequent releases of the Software (and updated Documentation), if any, that CHIASTEK, in its sole discretion, makes generally available at no additional charge to its end-users who are on Maintenance.  Maintenance shall not entitle Customer to any release, option, module, or future product, which CHIASTEK, in its sole discretion, licenses separately or offers for an additional fee.  CHIASTEK is under no obligation to develop any future programs or functionality.  CHIASTEK reserves the right to discontinue, in whole or in part, and at any time, offering Maintenance for any Software or platform. 

6.2Further, if Customer acquires Maintenance for Software, during the applicable Maintenance term and subject to the terms and conditions of this Agreement, CHIASTEK will provide Customer with technical support in English via telephone, email and any other means CHIASTEK, in its sole discretion, makes generally available from time to time under technical support.  Technical support is provided only for the then-current major release and the immediately preceding major release (as designated by CHIASTEK) of the Software, running unaltered, and on an appropriate hardware and operating system configuration, as specified in the applicable Documentation.  Technical support is limited to reasonable assistance in response to Customer’s technical support inquiries regarding: (i) Software installation, (ii) Software errors, and (iii) general questions regarding the usage of Software features.Technical support does not include training, consulting, on-site services, or the provision of engineering judgment for a customer-specific simulation.  Upon CHIASTEK’s request, Customer shall provide information required by CHIASTEK to verify that Customer and the specific license are entitled to technical support.  To allow CHIASTEK to properly address technical issues, CHIASTEK may request that Customer provide files and other materials and information. 

6.3Unless otherwise agreed to by the parties in writing, to purchase any Maintenance, Customer is required to purchase Maintenance for all Software Customer has licensed from CHIASTEK.  In the event that Maintenance expires or was not originally purchased, upon the commencement of Maintenance a reinstatement fee will be assessed in accordance with CHIASTEK's then current policies.  In addition to any other remedies available to CHIASTEK, CHIASTEK reserves the right to refuse to provide Maintenance if Customer is overdue on any payment obligation under this Agreement. 

6.4CHIASTEK’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for a failure to meet any obligation under Maintenance and failure to cure such deficiency after thirty (30) days written notice will be that Customer may terminate Maintenance for the Software involved and receive a pro-rata return of any Maintenance fees paid for the remaining unused Maintenance period of the Software involved.

6.5Unless agreed otherwise for a specific Order Schedule, if Maintenance is acquired, the initial Maintenance term shall begin on the start date set forth in the applicable Order Schedule and continue until the first anniversary of such start date.  Thereafter, Maintenance under that Order Schedule shall automatically renew for successive annual terms, unless either party notifies the other in writing of the intent not to renew at least 90 days prior to any upcoming renewal term.  CHIASTEK reserves the right to change pricing for upcoming annual renewals by providing Customer with written notice of the new pricing at least 120 days prior to the upcoming renewal term in which the new pricing is to take effect. If Customer decides not to renew Maintenance under the new pricing, Customer may notify CHIASTEK in writing of the intent not to renew at least 90 days prior to the renewal term in which the new pricing is to take effect.

7ORDER AND DELIVERY

7.1Each order under this Agreement will reference this Agreement on the applicable Order Schedule. CHIASTEK reserves the right, in its sole discretion, to accept or reject any order.    

7.2CHIASTEK reserves the right to deliver the Software either by making it available to Customer for electronic download or by physical delivery.  Where the Software is made available to Customer for electronic download, CHIASTEK is under no further delivery obligation under this Agreement, whether physical or otherwise.  For electronic delivery, the delivery date shall be when the Software is made available to Customer electronically.

7.3Where physical shipment is made, CHIASTEK shall ship (or cause to be shipped) to the physical delivery address set forth in the Agreement one copy of the Software media (in the form generally available) for each Software licensed under the Agreement.  Delivery terms are f.c.a. (free carrier, Incoterms 2000) Toulouse, or F.O.B. Shipping Point if the shipment is made from France.  Unless otherwise agreed to in writing by the parties, CHIASTEK will determine the method of shipment.  An additional shipping and handling fee may apply to physical shipments.

8INSTALLATION AND AUTHORISATION CODES.

8.1Customer may install the Software only on the applicable Customer Computer identified in the Order Schedule, provided however that in the case of a Network (Floating) License or a Named User License Customer may install the Software on Customer's client machines within the scope of the license type acquired, as long as use of the Software is controlled by the Customer Computer (license server).  Customer shall be responsible for installation of the Software and all associated costs.  Customer may only relocate the Customer Computer with CHIASTEK’s prior written consent. 

8.2The Software may require authorisation codes (also known as "license keys") to run.  Any such required authorisation codes will be issued in accordance with CHIASTEK's then-current license management policy.  Customer shall provide CHIASTEK with the host identifier and any other information reasonably required by CHIASTEK for each Customer Computer to permit CHIASTEK to generate the necessary authorisation codes.  No authorisation codes will be provided for any version of the Software which has been replaced by a more recent version. 

8.3CHIASTEK reserves the right to charge CHIASTEK's then-current standard hardware transfer fees whenever CHIASTEK, in response to a Customer request, generates and delivers to Customer replacement authorisation codes due to a change to the Customer Computer.  Prior to any such delivery, Customer shall complete, sign and submit CHIASTEK’s standard hardware transfer request form. 

9FEES, TAXES AND PAYMENT. 

9.1Customer shall pay in full all fees payable under this Agreement, including all fees under any Order Schedule.  Fees are exclusive of all applicable sales, use, value added, and other taxes (and all applicable tariffs, customs duties and similar charges), and Customer will be responsible for payment of all such taxes (other than taxes based on CHIASTEK’s net income), tariffs, duties and charges (and any related penalties and interest), payable in connection with this Agreement or the provision of Software and Maintenance hereunder.  If Customer is claiming tax exemption status, Customer must provide a copy of a valid tax exemption certificate. 

9.2All fees will be due and payable in Euros within thirty (30) days from the invoice date.  Any amount not paid when due will bear interest accruing daily from the due date to the actual date of payment at the rate of [4]% per annum above [the base rate of [Barclays Bank PLC] for the time being in force][LIBOR] or the maximum rate of interest allowed by applicable law, whichever is less.  [For the purposes of this Section 9.2, LIBOR means for any amount, the British Banker's Association Interbank Offered Rate, released on the relevant day and displayed on the appropriate page of the Reuters screen for the offering of deposits in Euros for a period of three months.] In addition, Customer will reimburse CHIASTEK for any reasonable legal fees and other costs and expenses incurred in collecting past due amounts.  Customer’s payment obligations under this Agreement and any Order Schedule are non-cancellable and the sums paid nonrefundable, except as expressly stated otherwise in this Agreement. 

10WARRANTY; LIMITATIONS. 

10.1CHIASTEK warrants that the Software when used as permitted under this Agreement and in accordance with the instructions in the Documentation (including use on a computer hardware and operating system platform supported by CHIASTEK) will conform substantially to its associated Documentation for a period of ninety (90) days from the date on which the Software is delivered to the Customer by CHIASTEK.  Any claim by Customer of a breach of this warranty must be made in writing and within ninety (90) days of the delivery date. 

10.2Except as expressly stated in Section 10.1 of this Agreement and to the extent not prohibited by applicable law, neither CHIASTEK nor any supplier of CHIASTEK make any warranties of any kind, with respect to the Software, Documentation or Maintenance provided under this Agreement.  CHIASTEK further expressly disclaims the warranties of satisfactory quality, fitness for a particular purpose and non-infringement.  CHIASTEK makes no warranty that the operation of the Software will be uninterrupted or error free.

10.3Customer's exclusive remedy, and CHIASTEK's sole liability, for Software that does not meet the warranty set forth in  Section 10.1 will be, at CHIASTEK's option: (i) to correct the non-conforming Software within a reasonable time so that it conforms to the warranty; (ii) to replace the non-conforming Software with another CHIASTEK software offering substantially similar functionality; or (iii) if neither (i) or (ii) is commercially feasible, permit Customer to terminate the license as to the non-conforming Software and to receive a refund of the license fees and associated, unused Maintenance fees actually paid to CHIASTEK for the non-conforming Software.  CHIASTEK will have no responsibility or obligation under the foregoing warranty or otherwise with respect to: (a) any Software that has been modified by anyone other than CHIASTEK, or (b) failure of the Software caused by Customer or its agents through accident, abuse or misapplication.

11LIMITATION OF LIABILITY. 

11.1Customer acknowledges that the Software along with the Documentation, and any Maintenance provided hereunder are only an aid in Customer's development of Customer's products and is not intended as a substitute for sound engineering judgment.  CHIASTEK will not be liable in any manner whatsoever for the data output obtained through use of the Software.  Customer shall, at its own expense, indemnify, defend and hold CHIASTEK harmless from and against any claim(s) brought against CHIASTEK by a third party arising out of, or related to, Customer's use of the data output obtained from use of the Software.

11.2Subject to Section 11.3, CHIASTEK's aggregate liability arising out of or relating to this Agreement, whether in breach of contract, tort (including negligence), product liability, or otherwise:

11.2.1will be limited to and will in no event exceed the amount actually paid by Customer to CHIASTEK under this Agreement for the specific item that is the subject matter of, or is directly related to the cause of action.  Customer acknowledges that the fees reflect the allocation of risk set forth in this Agreement and that CHIASTEK would not enter into this Agreement without these limitations on liability; and

11.2.2neither CHIASTEK nor its suppliers will be liable for: (i) Customer’s losses resulting from claims against the Customer; and/or (ii) any claim by the Customer, for or involving any indirect, consequential, incidental, exemplary, punitive or special damages (including lost data, savings, profits, revenues, investigative costs,  litigation costs or settlement sums in any jurisdiction worldwide arising from or related to this Agreement), even if CHIASTEK has been advised of the possibility of such loss or claim.

11.2.3No action, regardless of form, arising out of or relating to this Agreement may be brought by Customer more than one year after the cause of action accrued. 

11.2.4To the extent any applicable law limits the scope of this Section 11.2, this Agreement shall be interpreted to conform to such law in a manner that limits CHIASTEK's liability to the fullest extent allowed by applicable law.

11.3Notwithstanding any other provisions of this Agreement, neither CHIASTEK nor its suppliers limits or excludes its liability for fraud or for death or personal injury arising from CHIASTEK's or its suppliers' negligence or that of their employees, agents or subcontractors. 

12TERM AND TERMINATION. 

12.1This Agreement will be effective as of the Effective Date and will remain in full force until terminated in accordance with this Agreement.  Except where otherwise provided in this Agreement, this Agreement may be terminated as follows: (i) by either party upon not less than thirty (30) days prior written notice to the other party upon the occurrence of a material breach by the other party of its obligations under this Agreement if such breach remains uncured at the end of the notice period, provided however that no cure period shall apply as to any material breach of Sections 3, 4, 5 and 14 of this Agreement by Customer and CHIASTEK may terminate this Agreement effective immediately upon written notice; or (ii) by CHIASTEK upon not less than fifteen (15) days prior written notice to the Customer, if no licenses are pending under this Agreement (e.g., no licenses are purchased by Customer or purchased licenses have expired or terminated); or (iii) by CHIASTEK if Customer is unable to pay its debts or becomes insolvent or an order or an application is made or a resolution passed or documents are filed or faxed with a court for the administration, winding-up or dissolution of Customer (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee, supervisor or similar officer is appointed to Customer or over all or any of the assets of Customer or notice is given of the intention to make such an appointment or a moratorium is sought or declared in respect of Customer or Customer enters into or proposes any composition or arrangement with its creditors generally, or takes any step with a view to rescheduling or restructuring any of its indebtedness or anything analogous to the foregoing occurs in any applicable jurisdiction.

12.2Upon termination of this Agreement, all licenses and Maintenance rights granted to Customer under this Agreement will automatically terminate, and Customer agrees to immediately cease using all Software and Documentation and promptly uninstall and erase all Software and Documentation (and related authorisation codes) from all Customer computers.  Within fifteen (15) days following termination, Customer shall return or destroy (at CHIASTEK's sole option) all originals and copies of the Software (and related authorisation codes) and Documentation, and upon CHIASTEK's request, certify in writing that it has returned or destroyed (as applicable) all such originals and copies. Termination of this Agreement shall not relieve the parties from any obligation accrued before the date of termination. Provisions that survive termination of this Agreement include those in Sections 5, 6.4, 9, 10, 11, 12, 13, 14, 15 and others which by their nature are intended to survive. 

13INTELLECTUAL PROPERTY INDEMNITY. 

13.1CHIASTEK shall, at its own expense and subject to the terms of this Agreement indemnify, defend and hold Customer harmless from and against any claim(s) brought against Customer by a third party alleging that the Software or any portion thereof as furnished under this Agreement and used within the scope of the licenses granted to Customer infringes any copyrights, trademarks or patents, provided that Customer gives CHIASTEK: (i) prompt written notice of such claim; (ii) assistance and information reasonably requested by CHIASTEK; and (iii) the sole authority to defend and settle such claim.

13.2Notwithstanding the provision of Section 13.1, CHIASTEK shall have no liability for any infringement arising from: (i) the integration or combination of the Software together with other software, materials or products not integrated or combined by CHIASTEK, if the infringement would have been avoided in the absence of such integration or combination; (ii) the use of other than a current unaltered release of the Software available from CHIASTEK, if the infringement would have been avoided by the use of the then-current release; (iii) modifications to the Software that were not authorised by CHIASTEK or were undertaken at the request of or direction of Customer; or (iv) Customer’s use of the Software in a manner that does not comply with this Agreement.

13.3If the Software becomes, or in CHIASTEK’s opinion is likely to become, the subject of an infringement claim, CHIASTEK may, at its sole option and expense, either: (i) substitute non-infringing software of substantially similar functionality; (ii) modify the infringing Software so that it no longer infringes but remains substantially similar in functionally; (iii) obtain for Customer, at CHIASTEK's expense, the right to continue use of such Software; or (iv) if none of the foregoing is commercially feasible, CHIASTEK will take back the Software involved, and grant Customer a refund or credit for the unused portion of the license fee and associated unused Maintenance fees actually paid to CHIASTEK for the Software involved, using a straight line amortization over sixty (60) months from initial delivery for Paid-up License(s).  This Section 13 states CHIASTEK's entire liability and Customer's sole and exclusive remedy for infringement claims and actions.

14EXPORT.  Customer acknowledges that this Agreement and all orders and licenses hereunder are subject to French and other applicable laws and regulations relating to export controls.  Customer shall comply with all applicable French and applicable export control laws and regulations and further agrees not to export or re-export the Software, Documentation, technical data or other deliverables provided under this Agreement without: (i) CHIASTEK's prior written approval and (ii) obtaining, at Customer’s sole cost and expense, any required authorisation from the applicable governmental authority as may be required by law.  Upon CHIASTEK’s request, Customer shall promptly cooperate with CHIASTEK and provide CHIASTEK with any end-user certificates, affidavits, or other documents reasonably requested by CHIASTEK in connection with the exporting or importing of any products or services under this Agreement. 

15MISCELLANEOUS.

15.1This Agreement, together with any schedules, exhibits and addenda attached hereto, and any and all mutually agreed Order Schedule(s) referencing this Agreement, constitute the complete agreement between CHIASTEK and Customer with respect to the subject matter hereof, and this Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, with respect to the subject matter.  Each party acknowledges that in entering into this Agreement, it has not relied on any prior or contemporaneous agreements or representations, written or oral, except those set out in this Agreement, together with any schedules, exhibits and addenda attached hereto, and any and all mutually agreed Order Schedule(s) referencing this Agreement.  Each party waives all rights and remedies which, but for this Section 15.1, might otherwise be available to it in respect of any such agreements or representations, written or oral.  If Customer issues a purchase order or other instrument covering the Software and/or Maintenance provided under this Agreement, it is expressly agreed that the terms of this Agreement supersede any different, conflicting or additional terms in a purchase order or other customer-issued instrument.  This Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by the authorised representatives of the parties. 

15.2This Agreement is governed by French law.  CHIASTEK and Customer agree to submit to the exclusive jurisdiction of, and venue in, the French courts, in any dispute arising out of or relating to this Agreement.  The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

15.3The Software may be accompanied by or contain certain third party software, including open source software (collectively, “Third Party Software”), for which CHIASTEK is required to pass-through to its licensees certain additional terms and conditions and/or notices.  Such required Third Party Software terms and conditions and/or notices are provided upon request or any other successor site designated by CHIASTEK.  Customer agrees to be bound by and comply with the applicable Third Party Software terms and conditions, if any. Hardcopies of the Third Party Software terms and conditions may be printed from the foregoing site.  THIRD PARTY SOFTWARE IS PROVIDED "AS-IS," WITHOUT WARRANTIES OR LIABILITY OF ANY KIND BY CHIASTEK.

15.4This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.  However, Customer may not assign or transfer, by operation of law or otherwise, this Agreement (or any of the licenses or other rights or obligations hereunder), without CHIASTEK's prior written consent.  Any attempted assignment or transfer in violation of the foregoing will be void.  CHIASTEK may subcontract a service, or any part of it, to subcontractors selected by CHIASTEK, provided CHIASTEK will remain responsible to Customer for such subcontractor’s performance in accordance with this Agreement.

15.5If any provision of this Agreement is invalid, the parties agree that such invalidity will not affect the validity of the remaining portions of this Agreement.  The parties further agree to substitute a valid provision for the invalid provision which most closely approximates the intent and economic effect of the invalid provision.

15.6The Section headings in this Agreement are for convenience only and will not be of any effect in constructing the meaning of the Sections.

15.7Except for the making of payment under this Agreement, neither party will be held liable or responsible for delay or failure to perform any of such party's obligations under this Agreement occasioned by any cause beyond its reasonable control, including but not limited to war; terrorist acts; civil disturbance; fire; flood; earthquake; acts or defaults of common carriers; governmental laws, acts, regulations, embargoes or orders; or any other cause, contingency or circumstance not subject to such party's reasonable control.  The affected party will resume full performance of interrupted obligations as soon as practicable upon cessation of intervening causes.

15.8All notices will be in writing and will be sent to the recipient’s address first set forth in this Agreement (or such other address as the recipient may designate by notice given in accordance with this Section).  Notices permitted or required under this Agreement shall be delivered personally (including courier service), by certified or registered mail, return receipt requested, or by confirmed facsimile transmission.  Notices shall be effective upon receipt.  If notice is sent to CHIASTEK, it shall be directed to Attn: Legal Department. 

15.9Customer acknowledges and agrees that any and all consulting services performed or to be performed by CHIASTEK for Customer are independent of Customer's purchase and use of the Software licenses. Customer further agrees that payment under this Agreement for items purchased hereunder is in no way dependent or in any other way associated with the commencement, completion or delivery of consulting services.