End User License Agreement
Last updated: December 2023
IMPORTANT—READ CAREFULLY: By installing, accessing, or otherwise copying or using all or any portionof the Licensor Materials (defined below): (i) you are consenting to be bound by all the terms and conditions of
this End User License Agreement (“Agreement”), and a contract is formed between Weingärtner
Maschinnebau GmbH legal entity identified in the installer set up program of the Software as the “Licensor”(hereafter “Licensor”), and either you personally, if you acquire the Licensor Materials for yourself, or the legal
entity for which you are acquiring the Licensor Materials (hereafter “Licensee”); and (ii) you represent andwarrant that you have the right, power and authority to act on behalf of and bind such legal entity (if any) or
yourself.
If you do not agree or do not wish to bind yourself or the legal entity you represent, (i) do not install, access, orotherwise copy or use any portion of the Licensor Materials; and (ii) within thirty (30) days from the date ofacquiring the Licensor Materials, you may return the Licensor Materials (and all copies thereof) to the entity
from which they were acquired, along with any relevant proof of payment, for a refund of the applicable license
fees paid.
1.

DEFINITIONS.

1.1“Authorized User” means (i) if Licensee is an individual, solely the Licensee; or (ii) if Licensee is alegal entity: (a) any employee of Licensee, and (b) any individuals who are independent contractors
working on Licensee’s premises and are authorized by Licensee to use the Licensed Materials on
Licensee computers solely for the benefit of the Licensee. Any such independent contractors musthave agreed in writing to use restrictions and confidentiality obligations no less restrictive than those
set forth in this Agreement.
“Documentation” means any user manual, user guide, installation guide or other user
documentation (in electronic, online, or any other form or media) made available together with theSoftware by Licensor for use with the Software.
“License Files” means license files, license keys, activation codes, passwords, or the like required
to install, access, enable, and / or use the Licensed Materials.
“License Manager” means the license manager program or tool made available by Licensor with the
Licensed Materials for managing and controlling access to and use of the Licensed Materials.
“License Types” means the types of licenses or use specified by Licensor, including those set forthin Section 3 to this Agreement.
“Licensed Materials” means the Software features, modules, options, components, or portions(together with associated Documentation, APIs, and materials) delivered pre-packaged with orotherwise accompanying this Agreement, for which Licensee has lawfully acquired a valid license.
Licensed Materials also include any error corrections, patches, updates to, or new releases of, theLicensed Materials (collectively, “Updates”) provided under this Agreement. Licensee acknowledges
that the right to receive available Updates is subject to Licensee purchasing Maintenance under theapplicable Maintenance program terms, and Licensee’s payment of applicable fees and charges(see Section 5 below RE Maintenance). Any Update to Licensed Materials licensed under thisAgreement shall be subject to the terms and conditions of this Agreement, unless accompanied byadditional or different terms from Licensor, in which case Licensee agrees to comply with such
additional or different terms with respect to such Update.
“Licensee Computer” means the Licensee computing device for which Licensor provides License
Files to enable access to and use of the Licensed Materials. The Licensee Computer may also bereferred to in some cases as a “License Server”.
“Licensor Materials” means (i) the Licensed Materials, and (ii) all other software, documentation, orfeatures, modules, options, components, or portions of software or documentation, as well as
associated APIs or other materials, provided or made available by Licensor together with the
Licensed Materials (e.g., delivered on the same media or downloaded together with the Licensed
Materials) for which no license has been acquired.
“Paid-up License” is a license with a license term of thirty (30) years.
“Reseller” means any third-party reseller, distributor, dealer, original equipment manufacturer orother channel partner authorized by Licensor to market, distribute or support the Licensed Materials.
“Software” means a computer program, or feature, module, option, component, or portion of acomputer program, made available by Licensor.
“Subscription” or “Subscription License” is, for the purposes of this Agreement, a type of shortterm license with a specified fixed term (such as a one-year or other short-term Subscription term).
“Territory” means the country(ies) or jurisdiction(s) specified in the order confirmation, licensing
confirmation, or the like, issued by Licensor at the time of the transaction or upon request. If no
country or jurisdiction is specified, then Territory means the country in which Licensee acquires the
Licensed Materials.
Additional terms with specific meanings are defined near where they first appear in this Agreement.

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2.

GRANT OF LICENSE.

2.1

Subject to and conditioned on Licensee’s compliance with the terms and conditions of thisAgreement and payment of the applicable fees and charges, Licensor grants to Licensee, andLicensee accepts from Licensor, a non-exclusive, non-sublicensable, non-transferable, limited
license to install, access and use (in executable code version only), during the applicable license
term, the Licensed Materials, solely for Licensee's own internal use by its Authorized Users inaccordance with the terms and conditions of this Agreement.
Each license shall be in accordance with the limitations of the applicable License Type and in thequantity Licensee has validly acquired from Licensor, or from a Reseller who has been authorized by
Licensor to supply the Licensed Materials. In no event may Licensee’s installation, access or use
exceed the number of licenses validly acquired, nor may Licensee access or use the Licensed
Materials following termination or expiration of the applicable license term. The license term for any
license granted shall be subject to early termination as set forth in this Agreement.
Usage of any portion of the Licensor Materials outside the scope of the license grant, or otherwise
not in accordance with this Agreement constitutes an infringement of Licensor’s (or its supplier’s, asapplicable) intellectual property rights as well as a material breach of this Agreement. No license orother right is granted to Licensee under the terms of this Agreement if Licensee did not lawfullyacquire the Licensed Materials from Licensor, or from a Reseller who has been authorized by
Licensor to supply the Licensed Materials to Licensee.
Licensee may not install, access or use the Licensed Materials outside of the Territory.
Registration may be required to access, download, or use the Licensed Materials. Licensee will
provide accurate and complete information relating to any registration.
Data created with non-commercial licenses may not be compatible with commercial licenses.
Licensee shall use or install the Licensed Material only on Licensor's machines or on machines
authorized by Licensor.

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3.

LICENSE TYPES.

3.1

Standalone License: If Licensee acquires a Standalone License (also known as a Node-locked
License), installation and use will be limited to a single copy of the Licensed Materials on one
designated Licensee Computer. Authorized Users must be physically present and not accessing or
using the Licensee Computer or Licensed Materials from a remote location or another computer.
Each Standalone License may only be used by one Authorized User at a time.
Network License: If Licensee acquires a Network License (also known as a Floating License or
Concurrent-Use License), access to and use of the Licensed Materials will be controlled by a single
License Server located at a single designated Licensee facility (or other mutually agreed location)
within the Territory. Authorized Users may access and use the Licensed Materials solely on
Licensee-owned or -controlled computing devices served by the License Server and LicenseManager, provided that access to or use of the Licensed Materials at any one time shall in no event
exceed the number of Network Licenses lawfully acquired by Licensee for such Licensed Materials,
and subject to the following additional restrictions relating to location of use:(i)
Local Area Network (LAN) License. If a Network License is designated as a Local
Network License, the Licensed Materials may only be installed, accessed or used at asingle designated Licensee facility (“Designated Site”) within the Territory; except that
Licensee employees customarily associated with the Designated Site may also accessand use the Licensed Materials (on Licensee-owned or -controlled computing devices)from their place of residence (but no other offsite location) within the Territory, by remote
access to Licensee’s network and the License Server through secure virtual private
network (VPN).
If neither a “Standalone” or “Network” License Type or configuration is designated for a validly
acquired license, the default shall be “Standalone” configuration, unless the context clearly indicatesotherwise.

3.2

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3.4

Evaluation License: If Licensee is granted an Evaluation License (also known as a “Trial License”),
Licensee agrees to the following additional restrictions and terms: (i) Licensee may use such
Licensed Materials solely for internal non-production, evaluation purposes; (ii) notwithstanding
anything to the contrary contained in this Agreement or elsewhere, any Evaluation License granted
is provided on an “as is” basis, without warranties, commitments, or obligations of any kind on thepart of Licensor (or their suppliers), and neither Licensor, or their suppliers, shall have any liability for
claims, damages or indemnities arising out of or related to any Evaluation License; and (iii) inaddition to any other termination rights, Licensor may terminate Evaluation Licenses at any time inits sole discretion. An Evaluation License is a short-term license with a duration as determined andspecified by Licensor. If no term is specified for a validly granted Evaluation License, the term isthirty (30) days.
Test (Alpha / Beta) License. If Licensee is granted a license to an “alpha”, “beta”, “non-production”,
or other “test” version of the Licensed Materials (each a “Test License”), Licensee agrees to thefollowing additional restrictions and terms: (i) Licensee may use such Licensed Materials solely forinternal non-production testing and evaluation purposes; (ii) notwithstanding anything to the contrary
contained in this Agreement or elsewhere, any Test License granted is provided on an “as is” basis,2

without warranties, commitments, or obligations of any kind on the part of Licensor (or their
suppliers), and neither Licensor, or their suppliers, shall have any liability for claims, damages orindemnities arising out of or related to any Test License; and (iii) in addition to any other terminationrights, Licensor may terminate Test Licenses at any time in its sole discussion. A Test License is a
short-term license with a duration as determined and specified by Licensor. If no such term is
specified for a validly granted Test License, the term is thirty (30) days.
4.

RESTRICTIONS AND PROTECTIONS.

4.1

Usage Restrictions. Licensee acknowledges that the Licensor Materials and their structure,organization and source code constitute and contain valuable confidential information and trade
secrets of Licensor (and its suppliers, as applicable). Except as expressly permitted under thisAgreement, Licensee shall not, and shall not permit any third party to:(i)reverse-engineer, decompile, disassemble, or otherwise attempt to derive the sourcecode for the Software (except to the extent that, by virtue of the applicable law, suchactions cannot be prohibited because they are essential for the purpose of achieving
inter-operability of the Software with another software program, and provided that the
information obtained by Licensee during such activities: (a) is used only for the purpose ofachieving inter-operability of the Software with another software program; (b) is notdisclosed or communicated without Licensor’s prior written consent to any third party towhom it is not necessary to disclose or communicate it; and (c) is not used to create any
software which is substantially similar to the Software);(ii)
modify, adapt, alter, translate or create derivative works from the Licensor Materials;(iii)
sublicense, rent, loan, lease, sell, or otherwise transfer all or part of the Licensor
Materials to any third party;(iv)
allow any third party to access or use the Licensor Materials on a service bureau,
application service provider, time-sharing, or similar basis;(v)
disable, modify, circumvent or take any other steps to avoid or defeat the license
management system, technical protection measures (“TPM”), or other security
mechanisms provided with the Licensor Materials;(vi)
remove, alter, or obscure any proprietary notices, labels, or marks from the Licensor
Materials;(vii)
disclose results of any Licensed Materials test or benchmark without Licensor’s priorwritten consent;(viii)
use the Licensor Materials to develop software applications for use by or distribution to
any third party, whether as standalone products or components;(ix)
use the Licensed Materials or their outputs for the purposes of developing a competitive
product or service;(x)
disclose, display, or permit access to or use of the Licensed Materials by persons otherthan Authorized Users using the Licensed Materials within the scope of the licenseacquired by Licensee;(xi)
use the Licensed Materials via any communications network or by means of remote
access unless specifically provisioned for and supported by the license management
system, technical protection measures and other security mechanisms;(xii)
access or use any feature, module, component, option, or portion of the Licensor
Materials for which Licensee has no valid license; or(xiii)
otherwise install, access, use or copy the Licensor Materials except as expressly
permitted under this Agreement.
Licensee agrees to notify Licensor immediately of any unauthorized access to or use of the Licensor
Materials. Licensee shall at all times be responsible for its users’ compliance with this Agreement.
Copying. Licensee may not copy or otherwise reproduce the Licensor Materials in whole or in part,
except (i) as may be necessary to support licensed use of the Licensed Materials; or (ii) to make areasonable number of copies for back-up purposes. Any such copies made by Licensee shall be theproperty of Licensor, and Licensee must reproduce and include, in exact form, all proprietary rights
notices.
Ownership. The Licensor Materials are licensed, not sold. Licensor (and its suppliers, as applicable)
retain title to and ownership in all intellectual property rights, throughout the world, in the Licensor
Materials and other materials and data made available by or on behalf of Licensor. Nothing in thisAgreement will be deemed to convey to Licensee any title, ownership, or other intellectual property
rights in or related to the Licensor Materials or other materials or data made available by or on behalfof Licensor (other than any limited licenses expressly granted hereunder), and Licensee agrees not
to assert any such rights. All rights in and to the Licensor Materials, and other materials and data
made available by or on behalf of Licensor, not expressly granted to Licensee in this Agreement arereserved by Licensor (and its suppliers, as applicable).
Anti-Piracy and License Compliance. Licensor reserve the right to take all legal steps to eliminate
piracy of Licensor Materials. In this context, Licensee acknowledges and agrees that Licensor may
use the Licensor Materials, TPM and other security mechanisms to collect and transmit certain
information regarding available licenses to Licensor (and their contractors, representatives,

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successors and assigns), for purposes of verifying user compliance with the terms of thisAgreement, identifying unauthorized use and users of Licensor Materials, and otherwise protecting
and enforcing intellectual property rights. Data collected and transmitted may include, without
limitation, user, device, and network identification information, location and organization domain
information, as well as information on Software usage. If Licensor detect unauthorized use of theLicensor Materials, Licensee agrees to compensate Licensor. Licensee agrees to indemnify Licensor
against any and all losses and expenses, including reasonable attorney fees, in connection with any
legal proceeding arising out of Licensee’s unauthorized installation, modification, use of or access to
the Licensor Materials.
Audit. Licensee shall maintain full and accurate accounts and records of the location of each copy of
the Licensor Materials, and the location and identity of the computers on which the Licensor
Materials are installed, accessed and used, examination of which would enable Licensor to verify
statements made by Licensee and to confirm Licensee’s compliance with the requirements of thisAgreement. In addition to Licensor’s rights in Section 4.4, Licensor, its agents or representatives,may, upon fifteen (15) days written notice, audit Licensee’s compliance with this Agreement,
including without limitation through on-site audits, electronic audits, and / or self-certifications.
Licensee will permit Licensor, its authorized agents or representatives, to access Licensee’s facilities
and computers and will take all commercially reasonable actions to assist Licensor, its agents or
representatives, in determining compliance with this Agreement. Licensee shall provide full cooperation to enable Licensor’s audits and any such supplementary information and explanation
reasonably necessary to explain fully the information contained in Licensee’s accounts and records.
If Licensor determines that Licensee’s use of the Licensor Materials is not in conformity with thisAgreement, Licensee agrees to compensate Licensor in accordance with the Compliance Policy,
and pay or reimburse Licensor for the reasonable costs of the audit. Licensor reserves the right toseek any other remedies available at law or in equity. Licensee agrees that Licensor will not be
responsible for any of Licensee’s costs incurred in cooperating with the audit, whether or not any
infringement or nonconformity is discovered. In the event Licensor initiates a legal proceeding
against Licensee under this Agreement and / or for infringement of copyrights in the Licensor
Materials and prevails, Licensor shall be entitled to an award of attorneys’ fees and costs.
Whole Product. Licensee shall not separate component parts of any licensed Software product (orassociated Licensed Materials) for independent use. Licensee may only install and use eachlicensed Software product (and associated Licensed Materials) as provided by Licensor as one
product.
Injunctive Relief. Licensee acknowledges that the obligations of Licensee under this Section 4 are ofa special and unique character which gives them peculiar value to Licensor for which Licensor
cannot be reasonably or adequately compensated in damages in the event Licensee breaches suchobligations. Licensee therefore agrees that injunctive relief is an appropriate remedy for such breachor threatened breach. Such relief shall be in addition to, and not in lieu of, any other rights orremedies in law or equity to which Licensor may be entitled.

5.

MAINTENANCE.

5.1

If Licensor offer and Licensee purchases maintenance and technical support services(“Maintenance”) for the Licensed Materials (e.g., annual Maintenance contract for Perpetual
Licenses, or Maintenance as part of Subscriptions), then such Maintenance will be provided inaccordance with the Weingärtner Maschinenbau GmbH’s current Maintenance program terms (forthe applicable Licensed Materials) in effect at the time of order. By ordering, accessing or using
Maintenance services, Licensee agrees to comply with such Maintenance program terms (for theapplicable jurisdiction).

6.

OTHER.

6.1

Privacy Statement. Licensor does not collect and / or process any personal data of Licensee and its
employees in the course of this licensing.
Feedback. If Licensee provides feedback, recommendations, or suggestions about the Licensor
Materials, or other products or services offered or provided by Licensor (“Feedback”), then Licensee
hereby irrevocably grants to Licensor a perpetual, irrevocable, worldwide, transferable,
sublicensable, royalty-free right and unlimited license to use, modify, reproduce, disclose, distribute,display, sell and otherwise exploit the Feedback.
Third Party Content. The Licensed Materials may be accompanied by, contain, or provide access to,certain third-party data (e.g., machine data or materials data), models, or other third-party content or
third party software, including open source software (collectively, “Third Party Content”), for which
Licensor may be required to pass-through to its licensees certain additional terms, disclaimers and /or notices. Such additional Third Party Content terms, disclaimers, and / or notices may be found in
the Software Help / About Menu, Documentation, and / or read me files, or otherwise accompany theThird Party Content. Licensee shall comply with such additional terms with respect to Third Party
Content. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THIRDPARTY CONTENT IS PROVIDED TO LICENSEE ON AN "AS-IS" BASIS, WITHOUT WARRANTIESOF ANY KIND ON THE PART OF LICENSOR (OR THEIR SUPPLIERS), AND NEITHER
LICENSOR, OR THEIR SUPPLIERS, SHALL HAVE ANY LIABILITY FOR CLAIMS, DAMAGES OR
INDEMNITIES ARISING OUT OF OR RELATED TO THIRD PARTY CONTENT.

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Licensee Responsibility for Selection and Use.
(i)
Licensee is solely responsible, and Licensor shall not have responsibility, for thesupervision, management and control of the use of the Software, and output of the
Software, including, but not limited to: (i) selection of the Software to achieve Licensee’s
intended results; (ii) determining the appropriate uses of the Software and the output for
Licensee’s business; (iii) establishing adequate independent procedures for testing theaccuracy of the Software and any output; and (iv) establishing adequate backup toprevent the loss of data.
(ii)
The Software is a tool that is intended to be used only by trained professionals. It is not a
substitute for professional judgment or independent testing of results or output. Licensee
is solely responsible for any results obtained from using the Software. Licensor shall nothave any liability to Licensee or any third party in respect to the quality or conformity ofany products produced or sold by Licensee.
(iii)
CAUTION: LICENSEE MUST VERIFY THE RESULT OF THE OUTPUT OF THE
SOFTWARE PRIOR TO USING THE OUTPUT ON ANY EQUIPMENT OR IN ANY
MANUFACTURING PROCESS.
(iv)
Licensee is solely responsible for verifying that the output by the Software are correct,
safe, and suitable to run on Licensee’s machine tool without error. Errors may result inthe output not being as intended or contemplated. FAILURE TO LOCATE AND
CORRECT ERRORS MAY RESULT IN SERIOUS DAMAGE TO EQUIPMENT OR
INJURY OR DEATH OF PERSONNEL IN THE PROXIMITY OF THE MACHINE. ANY
AND ALL SUCH OUTCOME IS SOLELY LICENSEE’S RESPONSIBILITY.
(v)
Licensee agrees to comply with all applicable laws and regulations relating to thedownload, installation and / or use of the Licensed Materials. Licensee shall defend,
indemnify and hold harmless Licensor, and respective directors, officers, employees andagents from and against any and all claims, suits, actions, proceedings, liabilities,
judgments, settlements, losses, damages, costs and expenses (including, without
limitation, attorneys’ fees and court costs) arising from or in any way related to (i)Licensee’s use or misuse of any portion of the Licensor Materials (save for any third party
intellectual property indemnity claims for which Licensor is responsible under Section 11(“Intellectual Property Indemnity”)); or (ii) Licensee’s violation or breach of thisAgreement.

7.

WARRANTY; LIMITATIONS.

7.1

Limited Warranty. Licensor 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 hardwareand operating system platform supported by Licensor) will conform substantially to its associatedDocumentation for a period of ninety (90) days from the initial delivery date. Any claim by Licenseeof a breach of this warranty must be made in writing and within ninety (90) days of the initial delivery
date of the Software.
Exclusions. The warranty in Section 7.1 does not apply: (i) if the nonconformance results from
customizations, modifications or alterations to the Software; (ii) if the non-conformance results from
Licensee having installed or used the Licensed Materials in a manner which is inconsistent with thisAgreement or Licensor instructions; (iii) if the Licensed Materials are acquired on a no-charge basis(e.g., a no-charge evaluation license or test license); (iv) if the Licensed Materials have been
subjected to abnormal physical conditions, accident, misuse, or negligence; (v) if Licensee fails topromptly install any Updates Licensor has previously made available to Licensee; (vi) if nonconformance comes about as a result of or through lack of training on the part of Licensee or its
users; (vii) to Third Party Content; (viii) APIs; or (ix) to Hosted Features.
Disclaimers. EXCEPT AS EXPRESSLY STATED IN SECTION 7.1 OF THIS AGREEMENT AND TO
THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, NEITHER LICENSOR NOR ANY
SUPPLIER OF LICENSOR MAKE ANY WARRANTIES OF ANY KIND, WITH RESPECT TO THE
LICENSED MATERIALS, MAINTENANCE, SERVICES, HOSTED FEATURES OR OTHER
MATERIALS PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT. THE
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED. LICENSOR DOES NOT WARRANT THAT ANY
LICENSED MATERIALS WILL MEET LICENSEE’S REQUIREMENTS, AND UNDER NO
CIRCUMSTANCES DOES LICENSOR WARRANT THAT ANY LICENSED MATERIALS WILLOPERATE UNINTERRUPTED OR ERROR FREE. IF ANY PART OF THIS DISCLAIMER OF
EXPRESS OR IMPLIED WARRANTIES IS RULED INVALID, THEN LICENSOR DISCLAIMSEXPRESS OR IMPLIED WARRANTIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE
LAW. IF A GREATER WARRANTY OR LIABILITY IS MANDATED PURSUANT TO THE LAW HELDAPPLICABLE TO THIS AGREEMENT, THEN LICENSOR WARRANTS THE LICENSED
MATERIALS AND PROVIDES LIABILITY TO THE MINIMUM EXTENT REQUIRED BY SAID LAW.
Licensee agrees that no oral or written representation, statements, advice or advertisements by
Licensor, or Resellers, agents or employees constitute any warranty or modification of the foregoingdisclaimer and limited warranty, and Licensee is hereby notified that no such person has any
authority to make any such modification or additional warranties.

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Exclusive Remedy. Licensee's exclusive remedy, and Licensor's sole liability, for Software that does
not meet the warranty set forth in Section 7.1 will be, at Licensor’s option: (i) to correct the nonconforming Software within a reasonable time so that it conforms to the warranty (or correct theDocumentation within a reasonable time if, in Licensor’s judgment, the non-conformity results fromerror in the Documentation); (ii) to replace the non-conforming Software with another Licensor
software offering of substantially similar functionality; or (iii) if neither (i) or (ii) is commercially
feasible, permit Licensee to terminate the license as to the non-conforming Software and refund of
the unused license fees actually paid by Licensee for the non-conforming Software, provided that
Licensee makes available all the information that may be necessary to help Licensor to remedy the
non-conformance, including sufficient information to enable Licensor to recreate the nonconformance.

8.

LIMITATION OF LIABILITY.

8.1

NEITHER LICENSOR NOR ITS SUPPLIERS WILL BE LIABLE (DIRECTLY OR INDIRECTLY) FOR
ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL
DAMAGES; FOR LOSS OF USE, PROFITS, REVENUE, SAVINGS; FOR LOSS OR CORRUPTION
OF DATA; FOR COSTS OF PRODUCT RECALL, INJURY TO REPUTATION, OR LOSS OFCUSTOMERS; FOR LOSS OF, LOSS OF USE OF, OR DAMAGE TO OTHER EQUIPMENT OR
PROPERTY; OR FOR DOWNTIME OR BUSINESS INTERRUPTION; ARISING OUT OF,
RELATING TO, OR IN CONNECTION WITH THE LICENSED MATERIALS, MAINTENANCE,SUBSCRIPTION, SERVICES, HOSTED FEATURES, OTHER MATERIALS OR THISAGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR CLAIM.
THE LIABILITY OF LICENSOR, IN THE AGGREGATE, WHETHER IN CONTRACT, TORT(INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH
ANY LICENSE, MAINTENANCE, SUBSCRIPTION, SERVICES, OR OTHER OFFERING OFFEREDOR FURNISHED UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEEDTHE FEE THAT LICENSEE ACTUALLY PAID FOR SUCH LICENSE, MAINTENANCE,SUBSCRIPTION, SERVICES, OR OTHER OFFERING IN THE TWELVE-MONTH PERIODIMMEDIATELY PRECEDING THE CAUSE OF ACTION THAT GAVE RISE TO SUCH LIABILITY.
NO CLAIM, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH ANYOFFERING OR THIS AGREEMENT MAY BE BROUGHT BY LICENSEE MORE THAN ONE YEAR
AFTER THE EVENT GIVING RISE TO THE CAUSE OF ACTION HAS OCCURRED.
THE EXCLUSIONS AND LIMITATION IN SECTION 8 SHALL NOT APPLY IN CASES OF: (I)FRAUD OR FRAUDULENT MISREPRESENTATION; (II) BODILY INJURY OR DEATH CAUSED BY
LICENSOR’S NEGLIGENCE; OR (III) TO THE EXTENT THAT LIABILITY CANNOT BE EXCLUDEDOR LIMITED ACCORDING TO APPLICABLE LAW.
TO THE EXTENT ANY APPLICABLE LAW LIMITS THE SCOPE OF THIS SECTION 10, THISAGREEMENT SHALL BE INTERPRETED TO CONFORM TO SUCH LAW IN A MANNER THAT
LIMITS LICENSOR’S AND ITS SUPPLIERS’ LIABILITY TO THE FULLEST EXTENT ALLOWED BY
LAW.

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8.4

9.

TERM, TERMINATION AND SUSPENSION.

9.1

Term and Termination. This Agreement will remain in full force until terminated in accordance withthis Agreement or until all licenses granted under this Agreement expire. Except where otherwise
provided in this Agreement, this Agreement may be terminated as follows: (i) by Licensor upon
fourteen (14) days’ prior notice upon a material breach by Licensee of its obligations under thisAgreement 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 2, 3, 4 and 10 of this Agreement by
Licensee, and Licensor may terminate this Agreement effective immediately upon notice; (ii) by
Licensor immediately upon notice of material breach for failure or delay in Licensee making any
payment when due, or fulfilling any payment conditions, in connection with any Licensed Materials ororder relating to this Agreement, whether such payments are owed to Licensor, or a Reseller; (iii) by
Licensor if Licensee makes a general assignment for the benefit of its creditors, is the subject of an
involuntary bankruptcy petition, or is otherwise subject to insolvency or dissolution proceedings. In
addition, Licensor may, at any time in its sole discretion, terminate any no-charge license.
Effect of Termination. Licensee shall have no license, service or usage rights, or other right withrespect to the Licensed Materials upon termination of this Agreement. Upon termination of thisAgreement for any reason (or upon termination or expiration of any license, with respect to thatlicense), Licensee shall (i) immediately cease using the Licensed Materials and promptly uninstalland erase the Licensor Materials from Licensee computers, and (ii) destroy the Licensor Materials
or, upon request by Licensor, return the same to Licensor, or the Reseller from which they wereacquired. Upon termination of this Agreement for any reason (or termination or expiration of any
license, with respect to that license), Licensor reserves the right to require Licensee to certify and /or show satisfactory proof that all copies of the Licensor Materials have been uninstalled anddestroyed (or returned, as applicable). Termination or expiration of any license or this Agreement
shall not relieve Licensee from any obligation accrued on or before the date of termination or
expiration, including without limitation any payment obligation to Licensor, or a Reseller. Provisions
that survive termination of this Agreement include those in Sections 4, 6, 7, 8, 9, 10, 11, and 12 andothers which by their nature are intended to survive.

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Right to Suspend Performance. If Licensee fails to make a payment to Licensor, or Reseller, orotherwise breaches the terms of this Agreement, Licensor may, without prejudice to any other rightor remedy available to Licensor, suspend performance (e.g., delivery of Software, License Files,
services), and / or suspend Licensee’s license as to the Licensed Materials. In addition, Licensor
may do the same if Licensor has reasonable grounds for insecurity concerning Licensee’s
performance under this Agreement.

10.

INTELLECTUAL PROPERTY INDEMNITY.

10.1

Licensor shall, at its own expense and subject to the terms of this Agreement indemnify, defend andhold Licensee harmless from and against any claim(s) brought against Licensee by an unaffiliatedthird party alleging that the Licensed Materials or any portion thereof as furnished under thisAgreement and used within the scope of the license granted to Licensee infringes a patent of theUnited States, Japan, or a member state of the European Patent Organization, or a copyright in any
country, provided that Licensee gives Licensor: (i) prompt written notice of such claim; (ii) assistanceand information reasonably requested by Licensor; and (iii) the sole authority to defend and settle
such claim.
Notwithstanding Section 10.1, Licensor shall have no liability for any infringement arising from: (i) the
integration or combination of the Licensed Materials together with other software, materials or
products not integrated or combined by Licensor, if the infringement would have been avoided in theabsence of such integration or combination; (ii) the use of other than a current unaltered release of
the Licensed Materials available from Licensor, if the infringement would have been avoided by theuse of the then-current unaltered release; (iii) modifications to the Licensed Materials that were notmade by Licensor or were undertaken at the request of or direction of Licensee; (iv) Licensee’s useof the Licensed Materials in a manner that does not comply with this Agreement; (v) Third Party
Content; or (vi) APIs.
If the Licensed Materials become, or in Licensor’s opinion are likely to become, the subject of an
infringement claim, Licensor may, at its sole option and expense, either: (i) substitute non-infringing
Licensed Materials of substantially similar functionality; (ii) modify the infringing Licensed Materials
so that they no longer infringe but remain similar in functionally; (iii) obtain for Licensee, at Licensor’s
expense, the right to continue use of such Licensed Materials; or (iv) if none of the foregoing iscommercially feasible, Licensor will take back the Licensed Materials involved, and grant Licensee arefund or credit for the unused portion of the license fee actually paid to Licensor for the Licensed
Materials involved, using a straight line amortization over thirty-six (36) months from initial delivery
for any Paid-up License. THIS SECTION 10 STATES LICENSOR’S ENTIRE LIABILITY AND
LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.

10.2

10.3

11.

EXPORT COMPLIANCE.

11.1

Licensee shall comply with all applicable export control, and sanctions laws and regulations (“Export
Laws”), which may include those of the United Kingdom, European Union (or its Member States),
the United States, and / or other countries. Licensee represents and warrants that the Licensor
Materials provided hereunder, and any derivatives thereof, will not be: (i) downloaded or accessed inviolation of Export Laws; (ii) used for any purposes prohibited by Export Laws; or (iii) exported, reexported, or otherwise transferred, directly or indirectly, in a manner contrary to the Export Laws.
Further, Licensee represents and warrants that neither Licensee nor any of its users is: (i) operatingin, organized in, or resident of a country or territory that is subject to any comprehensive trade or
economic sanctions or (ii) listed (or owned or controlled by a person or entity listed) on any exportcontrol-related or sanctions-related list of designated persons or entities maintained by the United
Kingdom, the European Union (or any Member States), the United States, or other countries whose
regulations laws apply. Upon Licensor’s request, Licensee shall promptly cooperate with Licensor
and provide Licensor with any end-user certificates, affidavits, or other documents reasonably
requested by Licensor in connection with the exporting or importing of any Licensor Materials under
this Agreement. Licensee shall indemnify and hold harmless Licensor from and against any claim,
action, proceeding, fine, loss, liabilities, cost and damages arising out of or relating to Licensee’s
violation of Export Laws. Licensor shall have no obligation to perform and no liability to Licensee inthe event performance is prevented by any impediments arising out of Export Laws, including any
restrictions imposed by Licensor’s compliance policies which limit Licensor’s business withidentifiable end users, end uses or countries.

12.

MISCELLANEOUS.

12.1

Entire Agreement. This Agreement, together with the Weingärtner Maschinenbau GmbH General
Terms and Conditions, constitutes the complete agreement between Licensor and Licensee withrespect to the subject matter hereof and supersede all prior or contemporaneous agreements or
representations, written or oral, with respect to the subject-matter. This Agreement supersedes andprevails over any conflicting terms in any purchase order or other Licensee-issued document.
Licensee specifically agrees that any Licensee-generated pre-printed terms or general terms andconditions included or referenced in any purchase order or other Licensee-issued document shall not
apply. In case there is a discrepancy between the General Terms and Conditions and this End User
License Agreement regarding the Software, this End User License Agreement shall prevail.

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12.2

12.3

12.4

12.5

12.6

12.7
12.8

No Waiver. Licensor shall have the benefit of all rights and remedies provided by law or equity.
Failure of Licensor to exercise or reserve any right or remedy shall not be construed as a waiver
thereof or of any other right or remedy.
Severability. If any term within this Agreement is to any extent illegal, otherwise invalid, or incapableof being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; allother terms hereof shall remain in full force and effect; and, to the extent permitted and possible, theinvalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable andthat comes closest to expressing the intention of such invalid or unenforceable term.
Force Majeure. Licensor will not be liable or responsible for delay or failure to perform any
obligations under this Agreement occasioned by any cause beyond their reasonable control,
including but not limited to war; terrorist acts; civil disturbance; epidemic; labor unrest; shortage ofraw materials; fire; flood; earthquake; acts or defaults of common carriers or suppliers; governmental
laws, acts, regulations, embargoes or orders; or any other cause, contingency or circumstance notsubject to their reasonable control.
Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto andtheir respective successors and permitted assigns. Licensee may not assign or transfer, by operationof law or otherwise, this Agreement (or any licenses, rights or obligations hereunder), without
Licensor’s prior written consent. Any attempted assignment or transfer in violation of the foregoingshall be void. Licensor may freely assign this Agreement, or transfer all or any of its rights, or subcontract, delegate or otherwise transfer all or any of its obligations or performance under thisAgreement, without Licensee’s consent.
Notices. Licensor may provide any notice to Licensee under this Agreement by sending an email
message to the email address then associated with Licensee’s account. Notices Licensor provides
by email will be effective when Licensor sends the email. It is Licensee’s responsibility to keep
Licensee’s email address current. Licensee will be deemed to have received any email sent to theemail address then associated with Licensee’s account when Licensor sends the email, whether ornot Licensee actually receives the email. To give Licensor notice under this Agreement, Licensee
must contact Licensor by personal delivery, overnight courier or registered or certified mail to thefollowing mailing address: Weingärtner Maschinenbau GmbH, 4656 Kirchham 29, AUSTRIA,
Attention: Legal Department. Notices provided by personal delivery will be effective immediately.
Notices provided by overnight courier will be effective three (3) business day after they are sent.
Notices provided by registered or certified mail will be effective five (5) business days after they are
sent.
Governing Language. In the event of translation of this Agreement to a language other than English,
the English language version shall govern in the event of a conflict.
Governing Law / Jurisdiction. It is the clear and unequivocal intent of the parties that any dispute,controversy or claim between the parties arising out of or in connection with this Agreement shall, on
the written notice by either party to the other party, be submitted to binding arbitration. Sucharbitration shall comply with and be governed by the commercial arbitration rules of the International
Chamber of Commerce (“ICC”) then in effect. The arbitration shall be filed with the office located in
Linz, Austria and Hearings shall be conducted at such location. Each party hereby irrevocably
agrees that service of process, summons, notice or other communications relating to the arbitration
procedure shall be deemed served and accepted by the other party if forwarded in accordance with
the Notice Section hereof. The arbitration shall be conducted by a single arbitrator familiar with legal
issues, to be selected by the parties.
The parties agree that discovery in the arbitration proceedings shall be limited to those documents or
categories of information that are relevant or material to the case. Depositions shall be limited to no
more than two (2) witnesses per side. Interrogatories shall be limited to ten (10) per side. The
parties agree to exchange documents in their possession or custody on which they intend to rely
prior to their initial conference with the arbitrator and to supplement their exchanges as additional
documents become known to them. To the extent that additional requests for document production
are necessary, they shall be limited in number to ten (10) per side. When documents to beexchanged are maintained in electronic form, the parties should attempt to agree in advance upon
reasonable search parameters such that relevant and material documents are identified andcollected in a manner that balances the need for the documents with the cost of production.
Documents shall be produced or made available in the form most convenient and cost effective forthe producing party.
The award rendered by the arbitrator shall be final and binding upon the parties. Judgment may beentered in any court having jurisdiction thereof in accordance with the United Nations Convention on
the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). All feesand expenses of the arbitration shall be borne by the parties equally. However, each party shallbear the expense of its own counsel, experts, witnesses, and preparation and presentations.

13.

ADDITIONAL TERMS RE APIs AND ADD-INS.

13.1

APIs. With respect to any published application programming interfaces, scripts, macros, sample
code, or other development materials (collectively, “APIs”) made available by Licensor as part of theLicensed Materials, subject to any and all payment obligations and compliance with the terms of thisAgreement, Licensor grants to Licensee a non-exclusive, non-sublicensable, non-transferable,
limited license to install and use the APIs, during the applicable license term, solely on the same

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13.2

Licensee computer(s) where the associated Software is permitted to be installed, and solely for
Licensee’s own internal use in conjunction with the Licensed Materials for which APIs were provided,and only in accordance with the Documentation for the APIs. Licensee acknowledges and agrees
that APIs are the confidential and proprietary information of Licensor (or its suppliers, as applicable),and no portion of the APIs may be disclosed or distributed to any third party, nor shall Licensee
make the functionality of the APIs available to any third party through any means. To the extent
Licensee uses the any portion of the APIs to develop one or more applications, services, modules,
components, scripts, post processors, or other custom developments (collectively, “Add-Ins”), such
Add-Ins may only be installed on the same Licensee computer(s) where the associated Licensed
Materials are permitted to be installed, and used only by Licensee’s Authorized Users, during thelicense term, in conjunction with the Licensed Materials for which APIs were provided on the same
Licensee computer, in accordance with the applicable License Type, for Licensee’s own internal useof the associated Licensed Materials. Licensee shall have no rights under this Agreement to
distribute or disclose Add-Ins to any third party, whether on a commercial or non-commercial
basis. Any distribution rights for Add-Ins shall require Licensee entering into a separate
agreement with Licensor, and payment of applicable fees and charges by Licensee.
Additional Requirements and Restrictions RE APIs and Add-Ins. In addition to any other obligations,
restrictions, and limitations in this Agreement, Licensee agrees as follows:(i)
Licensee agrees not to use the APIs to reproduce, or substantially reproduce, features orfunctionality provided by the Software or any Weingärtner Maschinenbau GmbH software;(ii)
Licensee agrees not to use the APIs to, or develop Add-Ins that, disable, modify,
circumvent or defeat any license management system, TPM, or other security mechanismthat exist in or accompany the Licensor Materials;(iii)
Licensee warrants that its use of APIs and development of any Add-Ins will be inaccordance with this Agreement and will not infringe or violate the rights of any third
party, or violate applicable law;(iv)
Licensee agrees to indemnify and hold harmless Licensor from and against any and all
losses suffered by Licensor (including legal expenses and attorney’s fees) arising out ofor in connection with any claim, action or allegation that Licensee’s development or use of
any Add-Ins violates or infringes the rights of any third party, or violates applicable law;(v)
Licensee acknowledges that APIs are subject to change as new versions and updates of
the Software are released, and that such changes may require Licensee to alter, modify,
update, recompile and / or rewrite any Add-Ins Licensee has developed and may
detrimentally affect the functionality of Licensee’s Add-In;(vi)
Future versions of the Software may include functionality provided by an existing Add-In.
Licensee agrees to cease further development, except to remove competing functionality
or any other development requested by Licensor, of Licensee’s Add-In if this occurs until
such competing functionality is removed;(vii)
Licensee shall not access or use any unpublished application programming interfaces of
the Software;(viii)
Licensee shall not use the APIs in a way that could limit, impair, harm, or damage theAPIs, the Weingärtner Group, or any of Weingärtner Group’s products or services;(ix)
Licensee shall not use the APIs to migrate users of the Add-in away from any ofWeingärtner Group’s products or services;(x)
Add-Ins may not remotely access the Licensed Materials over a network; Add-Ins
invoking the APIs and / or calling the Software must be installed and running on the same
Licensee computing device as the Software; nor may any Add-Ins act as a server or othermeans of remote access to the Licensed Materials; and(xi)Upon expiration or termination of Licensee’s license to the APIs or the associatedSoftware, Licensee shall immediately cease using any and all portions or elements of theAPIs incorporated or embodied in the Add-ins.

14.

ADDITIONAL TERMS RE CLOUD HOSTED FEATURES.

14.1

Certain features, functions, or capabilities associated with Software may require access to and useof cloud-hosted content and / or services hosted on Licensor, or third-party websites (“Hosted
Features”). In such cases, the Software may cause Licensee’s computer(s), with or without notice,
to connect to the internet and to communicate with the website for such purposes. Access to anduse of certain Hosted Features may require additional registration by Licensee and / or its
Authorized Users. Some Hosted Features may only be available subject to payment of additional
fees and charges.
Access to or use of Hosted Features may be subject to additional or different terms, as may bepresented to Licensee and / or its Authorized Users at the time of registration, sign-in or other use, oras posted on the applicable website. Licensee shall comply with such additional or different terms,
and cause its users to comply with such additional or different terms. Licensee and / or its Authorized
Users may be required to further accept such additional or different terms prior to access or use of
Hosted Features (e.g., at the time of registration or sign-in).
Licensee acknowledges and agrees that: (i) Licensor or third party suppliers may modify, discontinue
or replace any or all features, functionality or capabilities of the Hosted Features; (ii) Licensee is

14.2

14.3

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14.4

14.5

14.6

solely responsible for ensuring that use of the Hosted Features will not cause any error orinterruption in Licensee’s systems or other software; (iii) Licensee is solely responsible for procuringand maintaining network connections and internet connectivity to the data centers where the Hosted
Features are hosted and neither Licensor,or its suppliers shall have liability for loss or damage
arising from or related to such connections and connectivity.
HOSTED FEATURES ARE NOT MADE AVAILABLE ON A PERPETUAL OR PAID-UP LICENSEBASIS, BUT ARE OFFERED ONLY ON A TERM-LIMITED BASIS, SUCH AS DURING AN
ASSOCIATED SUBSCRIPTION TERM OR MAINTENANCE TERM. Upon expiration or terminationof the associated Subscription or Maintenance term, Licensee and its users lose access and usage
rights as to the associated Hosted Features. Licensee understands that upon such expiration or
termination, License may have no further access to any Licensee data or content it stored on thecloud service relating to the Hosted Features.
Hosted Features are provided on an “as is” basis, with no warranties of any kind. LICENSOR DOESNOT REPRESENT THAT LICENSEE’S USE OF THE HOSTED FEATURES WILL BE SECURE,
TIMELY, UNINTERRUPED OR ERROR FREE, OR THAT THE HOSTED FEATURES WILL MEET
LICENSEE REQUIREMENTS OR THAT ALL ERRORS IN THE HOSTED FEATURES WILL BE
CORRECTED. LICENSEE ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHERTHE HOSTED FEATURES OR THE INFORMATION GENERATED THEREBY IS ACCURATE ORSUFFICIENT FOR THE LICENSEE’S PURPOSE.
Licensor does not control nor accept any responsibility for any third-party content or services. Thirdparty websites are subject to the terms and conditions found on such third-party sites or otherwise
associated with the third-party content or services. Any dealings between Licensee and any third
party in connection with such content or services, including, without limitation, such third party’s
privacy policies, are solely between Licensee and such third party. Licensor may at any time, for any
reason, modify or discontinue the availability of any third-party content or services.

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