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Evaluation Version License Agreement

(hereinafter “Agreement”)
between
e:fs TechHub GmbH, Dr.-Ludwig-Kraus-Str. 6, 85080 Gaimersheim, Deutschland

(hereinafter "e:fs")

and
the Licensee

(hereinafter "LICENSEE")

  1. Software, License and License Restrictions
    1. e:fs provides LICENSEE with the attached Software in object code form and the related documentation (hereinafter collectively “Evaluation Version”) free of charge.
    2. e:fs grants to LICENSEE the non-exclusive, non-transferable and temporally automatically limited right to load and run the Evaluation Version. e:fs is authorized to control the Scope of the license (including the time limit) by telemetry.
    3. LICENSEE shall not claim any rights whatsoever (either in full or in part) against e:fs and e:fs shall in no way be subjected to restrictions in its own further development of the Evaluation Version in any way.
    4. LICENSEE shall not directly or indirectly develop any software similar to and / or derived from the Evaluation Version, and distribute such products directly or indirectly or in any other way.
    5. LICENSEE acknowledges that the Evaluation Version is copyrighted. All rights not expressly granted to LICENSEE under this Agreement shall remain with e:fs. LICENSEE shall ensure protection of the Evaluation Version against misuse with no limit in time.
  2. No Remedy of Defects or Replacement
    As e:fs provides the Evaluation Version, e:fs is not obliged to remedy any defects or to replace defective software.
  3. e:fs’s Liability
    e:fs´s liability based on whatever legal reason, whether for breach of contract, liability in tort or otherwise, shall be governed by the following: e:fs is liable for direct and/or consequential damages due to a material defect or defect of title, including infringement of third party rights, only (i) in case of intent; or (ii) to the extent e:fs has fraudulently concealed the defect. In all other cases, e:fs is only liable for intent or gross negligence. Claims based on a breach of contractual obligations which must be met in order to achieve a proper execution of the Agreement and on which the contractual partner can regularly rely on (Cardinal Obligation), claims for damages resulting from injury to life, the body or health, claims based on a breach of a guarantee given by e:fs as well as claims based on mandatory provisions of product liability law, in particular the German Product Liability Act, remain unaffected.
  4. Tests and High Risk Activities
    1. LICENSEE shall test the Evaluation Version with diligent care and only in non-productive systems.
    2. The Test Software is not fault-tolerant and is not designed, programmed, or intended for use or distribution for hazardous applications requiring fail-safe performance, such as, without limitation, applications related to the operation of nuclear facilities, aircraft navigation or communication systems, vehicle control, direct life support machines, or weapons systems where failure of the Test Software could result directly in death, personal injury, or severe property or environmental damage (hereinafter "High Risk Applications"). e:fs shall not be liable under any legal theory for (i) LICENSEE's failure to meet any expectations and/or assumptions regarding the use or suitability of the Test Software for High Risk Applications and/or (ii) any costs, damages and losses arising out of or in connection with the use of the Test Software for High Risk Applications. In the event LICENSEE elects to use the Test Software for High Risk Applications, LICENSEE agrees to indemnify, defend and hold harmless e:fs from and against all costs, damages and losses associated with such use.
  5. Microsoft Redistributable Files
    The Windows build of this software uses and includes Microsoft redistributable files, copyrighted by Microsoft Corporation. These files are included according to Microsoft’s licensing terms which are available as part of its developer tools and on its website at http://microsoft.com. These files are included solely for the purpose of running this software and may not be used or distributed independently. The Licensee agrees to Microsoft’s licensing terms that protect the distributable code.
  6. Miscellaneous
    1. This Agreement may not be modified, amended, nor waived, except by a written instrument duly executed by the parties hereto.
    2. Any and all disputes arising out of or relating to this Agreement or its validity in contract, tort or otherwise, whatever the cause thereof, shall be finally settled in accordance with the Arbitration Rules of the German Institute of Arbitration (DIS) without recourse to the ordinary courts of law. The place of arbitration is Ingolstadt, Germany. There shall be three (3) arbitrators. The language of the arbitral proceedings is German. This Agreement shall be governed by and interpreted in accordance with the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods.