Temporary Licenses - Terms and Conditions of Licensing

Article 1.  Purpose

These terms and conditions of licensing (“Terms & Conditions”) set forth the general terms and conditions under which ESI Group Sas, 10 avenue Aristide Briand - 92220 Bagneux, France (“ESI”) grants a temporary, non-exclusive and non-transferable license to the Client (the company authorized to use the Software Product as provided herein), to use certain ESI software products (the “Software Product”) for one of the following purposes:

a) the Client requiring certain training services to be provided by ESI (“Training”), which are specified in the corresponding ESI quotation (“Quotation”),

b) a license demonstration, e.g. for trade shows or troubleshooting (“DEMO”) or

c) a trial license for evaluation of options or full trade, also referred to as TIKI or TIKIFULL (“TIKI”).

Should the Client and ESI have executed an individual Master Agreement for Licensing and Services (”MA"), the MA shall apply instead of these Terms and Conditions.

Only for Training: Following the acceptance of the Quotation, the Client procures that all Affiliates (meaning entities Client controls, is controlled by or under common control with) of the Client and which are included for the training services set out in the Quotation, shall be bound by the terms and conditions of these Terms & Conditions for licenses provided to them under the Quotation.

Article 2. Scope

The Client is granted a temporary license (the “License”) for the duration, the territory and the Software Product (“License Details”), which are specified in the Quotation (for Training) or the license file or accompanying communication submitted by ESI to the Client or any other applicable document issued by ESI setting out the License Details. In case of Training, the territory is the place where the Training is offered (in case of online training: globally with restriction to ESI-limited countries, a list being available on myESI). If no territory is specified for TIKI or DEMO, the license use is only authorized at the registered address of the Client.

The License is a contractual authorization granted by ESI to the Client to use the Software Product, in object/machine readable form only, for the sole purpose of the Training, TIKI or DEMO, in accordance with the terms of the Quotation where applicable, without the right to demonstrate the Software Product to or perform computing services (simulation services) for third parties.

The Client shall restrict the use of the Software Product to its own personnel.

All Licenses and Quotations issued for that purpose by ESI and all purchase orders sent in return by the Client will obey to these Terms & Conditions.

For the duration the License, it is hereby agreed that even if a purchase order sent to ESI in return of a Quotation referring to the Client’s terms and conditions, the terms of the Quotation and the Terms & Conditions shall take precedence and together prevail over the terms and conditions of the Client. The Client accepts these Terms & Conditions also conclusively by downloading or installing the Software Product or by using the license key.

Article 3.  Delivery of license key and Installation

Installation of the Software Product is the Client’s responsibility and shall be accomplished in accordance with the installation guidelines supplied by ESI.

Article 4. Results and reproduction of graphic user interface

Subject to the restrictions stated in Article 3, the Client shall be free to use the outputs of the treatment of data by the Software Product (the “Results”). ESI licenses and transfers exclusively to the Client all intellectual property rights on the Results for the entire duration of the intellectual property and for the entire world.

The Client shall also be free to make hard copies of the graphic user interface of the Software Product to show or publish the Results. Any publication or representation of the screen will have to bear a visible mention of ESI in the following form: “(software published by ESI Group, reproduction of screen made with its authorization)”.

Article 5. Interoperability

The Client shall inform ESI of its intent for interoperability. The Parties agree to discuss in good faith this request.

Article 6. Prohibitions and exclusions

The Client has NO right:

  • to sublicense or redistribute the Software Product, with or without charge;
  • to extract data, by any means, from any Software Product database for a purpose incompatible with the intended use of the Software Product;
  • to correct errors, as only ESI has the right to correct errors;
  • unless permitted by law, to reproduce, translate, reverse engineer, decompile, modify or communicate all or part of the Software Product (including the source code), including the content of the user manual, for any use whatsoever, or create derivative works based on the Software Product or documentation or any part thereof, or to engage or assist any third party to do so, without the written consent of ESI in a separate agreement;
  • to publish or communicate to third parties (outside the Client’s group or organization, if relevant) benchmark results without ESI’s prior written authorization;
  • to directly or indirectly repackage or incorporate any portion of the Software Product into another product:
  • to get access to the source code, may it be throughout an escrow agreement or otherwise.

Those prohibitions and exclusions are without prejudice to specific provisions for the granted right to reproduce screen copies in Article 4.

Article 7 – Hosting Configuration

7.1. Principle of no rehosting to a different Hosting Configuration

The Software Product is to be installed on any determined hosting system (hardware or server) (“Hosting Configuration”) and the Client is not authorized to rehost the license to a new Hosting Configuration (“Rehosting”), unless specifically authorized by ESI.

7.2. Obligations of Client consecutive to an authorized Rehosting

If any Rehosting is made – as provided above or due to an exceptional authorization given in writing by ESI – the Client shall inform ESI which will then send the Client a form to be completed and returned. Failing to return the form, no Rehosting shall be authorized.

In case of Rehosting as provided in Article 7.1. or 7.2. above, the Client is required to ensure the full deletion or destruction of any Software Product installed on the preceding Hosting Configuration.

Article 8. Security - Audit

8.1 ESI reserves the right to:

  • Embed security mechanisms within the Software Product to monitor, store and transmit information concerning the sole usage of the Software Product, WITH STRICTLY NO POSSIBILITY FOR ESI TO HAVE ACCESS TO DATA TREATED BY THE SOFTWARE PRODUCT, in order to verify compliance with the license (such security mechanism only reacting in case of the use of an illegal copy).
  • Use a hardware lock device, license administration software, file encryption, or a license authorization key to control access to the Software Product.
  • Request the Client to fill a “know your customer” form for security purposes.

The Client may not take any steps to avoid, bypass or defeat the purpose of any such security measures or to engage or assist any other parties to do so. Use of the Software Product without the required lock device or without the authorization key provided by ESI is prohibited.

Article 9 – Intellectual Property

9.1. User license

ESI hereby declares that it is the owner of all intellectual property rights in the Software Product or that it is authorized by the owner of said rights to commercialize the Software Product and certifies that there is no infringement on the intellectual property rights of any third party.

9.2. Warranty of non-infringement

The Client shall immediately notify ESI, if Client is sued for infringement based on the Client’s use of the Software Product.

Subject to the Client’s written notice of the alleged infringement, ESI shall assume, on its own behalf and at its own cost, the defence and settlement of the dispute. The Client shall be obliged to cooperate fully with ESI at ESI’s expense, provided that ESI preserves the interests of both Parties.

ESI shall have no obligation with respect to any claim of infringement to the extent that such infringement is the result of a Client’s modification of the Software Product (which is prohibited) or its combination, operation, or use with programs or equipment not specified by ESI, which non-expected combination would infringe a patent.

In the event of a prohibition on the use of the Software Products supplied by ESI, the latter will endeavour, at its own discretion and expense:

  • either to obtain the right for the Client to continue using the infringing element ;
  • replace it with an element that is not the subject of an infringement action; or
  • modify the infringing element in such a way as to avoid said infringement.

The foregoing provisions set the limits of the Service Provider's liability for infringement.

9.3. Open-source

In the event that ESI integrates software components subject to so-called "free" (or "open-source") software licenses in their Software Products, of which it is not the author and/or publisher, any rights granted to the Client in respect of said software shall be governed by the provisions specific to said software. Those components don’t restrict the rights of use granted to the Client. The original licensors of said open source software components provide them on an “as is” basis and without any liability whatsoever from ESI to Client.

Article 10 – Warranty

10.1. Good functioning of the Software Product

ESI shall guarantee the conformity of the Software Product with the specifications mentioned in the user manual and the good functioning of the Software Product, according to said specifications, on a platform set up to match the required hardware configuration as defined in the user manual.

10.2. Exclusions of warranty

Warranties set out in Articles 10.1 and 10.2 are the sole ones given by ESI.

ESI does NOT guarantee:

- that the functions contained in the Software Product will meet the Client’s requirements or objectives;

- that said functions will operate in the combination selected by the Client if different from the specifications indicated in the user manual;

- that the operation of the Software Product will be uninterrupted or free of errors;

- the adequacy of the Software Product with any other configuration.

The Client shall have exclusive responsibility for:

- taking adequate measures to properly test, operate and use the Software Product,

- all Results obtained therefrom and cannot be liable in any way for direct or indirect consequences of the use of the Results, and

- selection, use and results of any other computer program, database or programming equipment or services used in connection with the Software Product.

Any warranty or responsibility given by ESI shall cease immediately upon the Client’s use of the Software Product in a non-appropriate configuration, or in case of modification of the Software Product made by Client.

Article 11 – Liability

NOTWITHSTANDING ANY DAMAGES THAT THE CLIENT MIGHT INCUR FOR ANY REASON WHATSOEVER, INCLUDING WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN THE AGREEMENT OR ANYTHING ELSE, THE ENTIRE LIABILITY OF ESI UNDER ANY PROVISION OF THIS AGREEMENT AND THE CLIENT’S EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY THE CLIENT FOR THE SPECIFIC SOFTWARE PRODUCT CAUSING THE DAMAGE WITHIN 12 MONTHS PRIOR TO THE DAMAGING EVENT. 

NOTWITHSTANDING THIS LIMITATION, ESI MAY, AT ITS SOLE OPTION, CORRECT THE DEFECT OF THE SOFTWARE PRODUCT OR REPLACE SUCH SOFTWARE. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ESI BE LIABLE FOR ANY SPECIAL, INCIDENTIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUE, RECOVERY COSTS, LOSS OF SALES, COVER COSTS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, FOR LOSS OF GOODWILL, FOR DAMAGE TO REPUTATION, OR FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT.

 

Article 12. Data Privacy

12.1. The Parties undertake to comply with the regulations in force applicable to the processing of personal data and, in particular, if applicable, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Each Party guarantees the other Party of compliance with its legal and regulatory obligations under the protection of personal data, without prejudice to the obligations they may have towards each other and their responsibility towards the persons concerned.

12.2 In the context of this contract, ESI may collect personal data for the proper performance of the Terms & Conditions. In this case, ESI acts as a processor and the Client acts as a controller within the meaning of the aforementioned regulations.

12.3 The terms set out at https://www.esi-group.com/data-privacy-terms-for-clients are incorporated herein by reference  and shall apply to the execution of the Terms & Conditions and related Quotation.

Article 13. Export control

ESI has an export compliance program to comply with all trade regulations in all countries in which it operates.

The Client acknowledges that some Software Products provided by ESI may be subject to export control laws and regulations (see below list of concerned products)

  • The Client agrees to comply with all applicable export control laws, regulations, and restrictions.
  • The Client warrants that he will not engage in any activity that violates these laws, regulations, or restrictions, including but not limited to the export, re-export, transfer, or provision of ESI's products to any prohibited destination, entity, or individual, or for any prohibited end use.
  • The Client warrants that he is not located in, under the control of, or a national or resident of any country embargoed or sanctioned by the applicable authorities.
  • The Client agrees to obtain any necessary licenses or authorizations required under applicable export control laws and regulations before engaging in any export or transfer of ESI's concerned listed products below.
  • ESI may provide a reasonable assistance to help Client in obtaining the necessary export compliance licenses: This information may include product descriptions, technical specifications, and any other relevant information may facilitate the Client application for export compliance licenses or authorizations. But ESI cannot guarantee the success or approval of any export compliance license or authorization application.
  • The issuance of such licenses or authorizations is solely determined by the relevant government authorities. ESI has no control over their decision
  • ESI reserves the right to suspend or terminate the Client’s access to its products to comply with applicable export control laws or if the Client has violated this trade export compliance.
  • ESI shall not be liable for any direct or indirect damages, losses, penalties, or legal actions arising from the Client’s failure to comply with export control laws and regulations.

Concerned Product Software :

  • CAFÉ Module is classified 9D001 and subject to US EAR and EU Dual Use Regulations.
  • VAONE and PROCAST solutions are not controlled but designated EAR99.

Article 14. Client’s feedback on the Software Product

Subject to the Client’s prior written authorization, ESI will have the right to make any commercial or informative reference to the Client’s use of the Software Product, without compromising any existing confidentiality obligations.

ESI is free to use without restrictions any feedback about the Software Product that is communicated by the Client to ESI and irrespective of the communication format, and the Client shall not be entitled to any rights in any such changes or compensation for same.  The Client shall and hereby does waive, release, and assign any and all rights, if any, in such ideas, suggestions of changes, or feedback to ESI.

Feedback shall mean the Client’s communication of any ideas, suggestions, guidance or other information, including but not limited to the Client test results or suggested improvements of the Software Product.

Article 15. Termination of the License

Should the Client be in breach to its rights to use the license granted of the Terms & Conditions or is in the situation described in Article 13 – Export Control, ESI shall have the right to terminate immediately the License upon formal notice by registered letter with acknowledgement of receipt.

Upon receipt of the termination letter, the Client shall remove or erase the Software Product including all backup copies from any computer or device and to return or destroy all copies of the user manual without delay.

The Client shall send thereupon and without delay written confirmation to ESI that this obligation has been met.