Software License Agreement
The Parties of this Software License Agreement (SLA) are:
1) the software supplier AnyBody Technology A/S, hereinafter referred to as ABT;
2) the person or organization that, from ABT or an authorized reseller, has acquired the right to use the Product on the terms set forth herein, hereinafter referred to as Licensee.
ABT and Licensee are individually referred as Party and collectively as Parties.
“SLA” means this agreement.
"AMMR" means the AnyBody Managed Model Repository™ including any add-ins, plug-ins or optional modules provided by ABT as part of the AnyBody Managed Model Repository™ or as stand-alone supplement to the AnyBody Managed Model Repository™.
"AMS" means the AnyBody Modeling System™ including any add-ins, plug-ins or optional modules and all related material for which Licensee has acquired the license from ABT or an authorized reseller.
“ASDK” means the AnyBody Software Development Kit™ including any add-ins, plug-ins or optional modules and all related material for which Licensee has acquired the license from ABT or an authorized reseller.
"Software License Agreement" (SLA) is this document specifying the terms for ownership of this license and use of the Product.
"Intellectual Property Rights" (IPR) means any intellectual property rights pertaining to the AMMR, the AMS and the ASDK, including without limitation copyrights, database rights, patents, trademarks and right in trade secrets.
"License Certificate" is a separate optional document signed by ABT, specifying different conditions for the Licensee than provided in this SLA. Such conditions supersede this SLA.
“Output” means any data output generated by the Products, whether in in physical, digital or other form and including without limitation representation in graphical or numerical form.
"Product" means AMMR, AMS or ASDK, while "Products" means combinations of AMMR, AMS, and ASDK, collectively.
"Use" or "Using" means to access, install, download, copy, or otherwise benefit from using the functionality of a Product in accordance with the documentation or the Output.
"AnyBody User" means the end user of AMS, AMMR or ASDK. The Licensee is responsible for ensuring that the AnyBody User is made aware of the terms of this SLA and complies with the terms hereof.
“Licensee SDK Application” means an application developed by or for the Licensee which includes the AMS, AMMR or the ASDK.
"End User" means the end user of a Licensee SDK Application. The Licensee is responsible for ensuring that End User’s comply with the terms of this SLA.
3. License and Restrictions
3.1 (a) AMS and AMMR are proprietary software protected by copyright legislation and other intellectual property laws and treaties. After acceptance of this SLA and subject to full payment of the license fees for the Product and upon acceptance of the order by ABT or its authorized reseller, ABT grants to Licensee a non-assignable, non-exclusive, non-transferable, and non-sublicensable right of use of the AMS in executable form only, without right to sublicense.
(b) ASDK is proprietary software protected by copyright legislation and other intellectual property laws and treaties. After acceptance of this SLA and subject to full payment of the license fees for the Product and upon acceptance of the order by ABT or its authorized reseller, ABT grants to Licensee a non-assignable, non-exclusive, and non-transferable right of use of the ASDK in executable form only, without right to sublicense. Licensee may not:
give End Users direct or indirect access to Licensee SDK Application except for quality control, testing, or internal demonstration purposes;
charge End Users or others for a service and/or a product or a service and/or product bundle, which includes Licensee SDK Application;
create or attempt to create a product that will understand and interpret the communications and commands between Products;
use the ASDK in any manner (a) that interferes with the operation of any Product, (b) to circumvent any technical or licensing restrictions of Products, (c) to upload or otherwise transmit any material containing software viruses or other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any software or hardware, (d) to use ASDK or any of its features to invade the privacy of any person or otherwise violate any law, including, but not limited to, by usage of GPS functionality, location/tracking services, etc;
to develop another ASDK.
3.2 The right to use AMMR is granted to Licensee on the same terms as set forth in item 3.1. New versions of AMMR may be released according to the decision of ABT and made available to the Licensee. ABT reserves the right to supplement or amend the terms herein with terms transpiring from the AMMR itself and accepted by the Licensee during installation, accessing or updating the AMMR.
3.3 The Licensee acknowledges that the AMMR constitutes a database, cf. Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, and that the IPR in the database belong to ABT. Except as set forth below, the Licensee may not build or develop any derivative database based on or derived from the AMMR or containing the Output except for purely internal purposes. This inter alia means that such derived databases and the Output may not be made available to any third party whether against a fee or not.
3.4 The use of the Products may be restricted in particular, but without limitation, to a certain computer or network or a maximum number of seats, hardware locks, concurrent users, sessions, nodes, or to a certain type of transactions, features, functionalities, or capabilities, or provide temporal or geographical limits. The Products may contain license keys, which may limit their use and require Licensee to obtain extension keys or additional network keys from ABT from time to time.
3.5 This SLA does not convey to the Licensee any interest or ownership in or to any or all of the Products, but only a limited right of use always subject to the terms of this SLA. Thus, nothing contained in this SLA shall be construed to convey to Licensee any title, ownership, copyright or any other intellectual property rights in or related to the Products.
3.6 The terms in this SLA apply to any updates, patches, new versions etc. of any of the Products unless otherwise stated in other license pertaining to said updates, patches, new versions etc.
3.7 The Licensee may make copies of the Products for backup purposes only. Such backups are subject to this SLA.
3.8 Notwithstanding the foregoing, Licensee shall not attempt to modify, make unauthorized copies, reverse engineer, un-bundle, decompile, or disassemble the Products except to the extent mandated by mandatory legislation in Licensee's jurisdiction. Prior to decompiling a Product, Licensee must give written notice requiring ABT within a reasonable limited period of time that cannot be less than ninety (90) calendar days to provide the information and documentation necessary to produce interoperability. Licensee is entitled to decompile a Product only after ABT has failed to comply with such notice within a reasonable limited time period.
3.9 The Licensee may not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Product.
3.10 This SLA becomes effective ("effective date") upon the Licensee's first installation of any of the Products or upon the Licensee's receipt of this SLA, whichever occurs first.
4. License Types
4.1 Standard license
Standard License: Licenses referred to as Standard Licenses are for commercial entities, government agencies, and non-profit entities or institutions doing classified research, i.e. research which is not meant to be public. The Licensee is not permitted to sell any data, results, models, or images generated using the Products under a Standard license, nor is the Licensee permitted to sell or distribute any Licensee SDK Application or products or services incorporating such data, results, models, or images. The Licensee is not permitted to develop and sell or distribute any Licensee SDK Application or concepts derived from the Products.
4.2 Academic licenses
Faculty Research License: Licenses referred to as Faculty Research License are for non-confidential research (including graduate student research) aimed at academic publication and teaching at universities, colleges, and other institutions with a primary obligation for teaching only. Use of a Faculty Research License for revenue-generating activities such as but not limited to corporate research and development, development of inventions that are patented, consultancy and bureau services, classified research not meant to be public, clinical applications (with the exception of clinical research), and product and production facility development, is explicitly prohibited. The Licensee, if using a Faculty Research License, agrees to acknowledge the use of the Products in any publication, presentation, or grant application that presents or refers to data or results generated by the Product, or that contains images or any reproductions of images created with the Products. The Licensee shall provide ABT upon request with lists of published works (with copies of reprints if possible) in which the Products is referenced and/or acknowledged. The Licensee is solely entitled to publish research results containing Output in generally well reputed research journals or web sites and is not permitted to sell any data, results, models, or images generated using the Products under a Research license, nor is the Licensee permitted to sell or distribute any products or services incorporating such data, results, models, or images. The Licensee is not permitted to develop and sell or distribute any Products based on the Products or concepts derived from AMS, AMMR, or ASDK.
Non-Faculty Research License: Licenses referred to as Non-Faculty Research Licenses carry the same right and obligations as Faculty Research Licenses, but is for researchers at non-profit entities and institutions conducting non-confidential research aimed at publication.
Student License: Licenses referred to as Student Licenses are restricted Faculty Research Licenses, which may only be used by bachelor and master students at universities, colleges, and other institutions with a primary obligation for teaching. Results obtained with a Student License must not be published except in the form of student reports and on-campus seminar presentations. Results cannot be published or presented at conferences. Student licenses may have a limited function set.
4.3 Trial and Demo Licenses:
Trial and Demo Licenses: Licenses referred to as Trial or Demo Licenses cannot be used for any other activity than evaluation of the Products with the purpose of acquiring a license for the Products. Any other use is explicitly prohibited. Trial and Demo licenses are time limited. After expiration of the License, all parts of the Products must be removed from any storage media in the Licensee’s possession and destroyed or returned to ABT. Results and models developed using a Trial or Demo License must solely be used for evaluation purposes and must be destroyed after expiration of License. Illustrative use of images, graphs, and results may be used in project proposals, grant applications and internal budget proposals. Trial and Demo Licenses may have a limited function set.
5. License audit
5.1 Licensee is at all times obliged to ensure that the use of the Products corresponds to Licensee's license.
5.2 Licensee accepts that ABT monitors Licensee's use of the Products to the extent necessary for ensuring compliance with this license.
5.3 Licensee shall allow ABT to audit each installation once every six (6) months. The audits shall allow ABT to check that the usage corresponds to Licensee's license, so that ABT receives the license payments to which ABT is entitled and furthermore to observe that the Products are used according to this SLA. Licensee shall at Licensee's own cost assist ABT in performing any such audits and shall, at ABT's request, perform any measurement of AnyBody Users and installations requested by ABT and report the result of such measurements to ABT without undue delay.
5.4 If Licensee's usage exceeds the Licensee's licensed usage, or if ABT can otherwise demonstrate that additional license- or maintenance fees are due, then ABT is entitled to invoice Licensee in accordance with ABT's at that time current general price list. ABT's right to such payments shall not lapse even if ABT does not claim the payments upon the audit but only at a later date.
5.5. Nothing in the above shall restrict ABT from exercising any other remedies ABT has according to this SLA. This right includes without limitation the right to terminate the SLA.
Licensee hereby acknowledges that the Product contains confidential and proprietary information including trade secrets of ABT or third parties. Licensee shall not disclose such information to any third parties.
7. Limited Warranty, Limitation of Liability
7.1 ABT warrants to Licensee that the Products will substantially perform as specified in the most current user's manuals or official documentation and that any hardware locks delivered with AMS are free from defects in workmanship. This warranty applies for thirty (30) days from the delivery of the Product ("Warranty Period"). ABT gives no other warranties, neither express nor implied.
7.2 ABT does not warrant the accuracy and/or the applicability of the results obtained from the use of the Products. The Licensee agrees that it is the responsibility of the Licensee to validate by physical experiments or otherwise that the results obtained with the Products are correct. AMS should not be relied on as the sole basis to solve a problem whose incorrect solution could result in injury to a person or property.
7.3 The Licensee bears the full risk and any economic consequences of the use of the Products and accepts that Licensee has no claims against ABT in this respect even if ABT, its officers or agents was informed that a loss on the Licensees part might arise. Licensee is advised not to make any decisions based on the use of the Products without having obtained expert advice and performed real life testing.
7.4 The Licensee specifically acknowledges that Licensee is aware that the data contained in the AMMR stems from many different sources and constitutes a compilation of research data or refinements hereof. The Licensee accepts that the data, which are certain to be incomplete and may be false even if ABT has taken reasonable steps to avoid this, are provided "as is" and that ABT grants no warranty in this respect.
7.5 The warranties provided under this section shall only apply to the most current version of the Products made available to Licensee. These warranties shall not apply if ABT has notified Licensee in writing that ABT no longer supports the operating system version on which the Products are licensed.
7.6 The warranties under this section shall further not apply to any breach of warranty (defects or infringements) caused by modifications to the Products made by Licensee or by any combination of the Products with any other software, or by use of other than the most-current version of the Products.
7.7. In case that the Product fails to perform as warranted in this SLA, the sole obligation of ABT to Licensee shall be, at ABT's option, to provide a correction or another update of the Products to correct the error or correct the manual (if the manual is in error) or to terminate the license for the Products and refund to Licensee a pro-rata share of the license fees for the Product.
7.8 THE REMEDIES OF LICENSEE IN CASE OF A BREACH OF WARRANTY SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE REMEDIES TO WHICH LICENSEE IS ENTITLED REGARDLESS WHETHER THE LICENSE HAS BEEN PURCHASED FROM ABT OR AN AUTHORIZED RESELLER.
7.9 LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ABT, ITS OFFICERS OR ITS AUTHORIZED RESELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, FAILURE TO MEET ANY DUTY, NEGLIGENCE, AND 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 PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT, OR OTHER SERVICES AND RELATED CONTENT THROUGH THE PRODUCT OR OTHERWISE ARISING OUT OF THE USE OF THE PRODUCTS, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS SLA, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY OF ABT, EVEN IF ABT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
8. Third party rights
8.1 If a third party makes a claim against the Licensee that any part of the Products infringes any patent, copyright or other intellectual property right (hereafter "Claim"), ABT shall be entitled – but not obligated – to assume the defense of the Licensee against the Claim and pay all costs, damages and expenses - including reasonable attorney's fees - finally awarded against the Licensee by a court having jurisdiction over the matter; provided that: (i) the Licensee notify ABT in writing no later than five (5) days after the Licensee has become aware of a Claim or a potential Claim; (ii) ABT may assume sole control of the legal handling of the Claim and all related actions and negotiations; and (iii) the Licensee – at his own cost - provide ABT with the assistance, information and authority, which in the opinion of ABT will be necessary to perform ABT's obligations under this clause.
8.2 Notwithstanding the above, ABT shall have no liability for (i) any Claim based on the combination of the Products with products or services not provided by ABT and (ii) the modification of the Products by any person other than ABT or (iii) any Claim not solely based on ABT's circumstances.
8.3 If, due to a Claim or the threat of a Claim, (i) any part of the Products is held by a court having jurisdiction over the matter, or in ABT's reasonable opinion may be held to infringe the rights of a third party by such a court, (ii) the Licensee receive a valid court order preventing the Licensee from using any part of the Products, or (ii) in ABT's reasonable opinion the Licensee may receive such an order, ABT may at its own choice and at its own expense (i) obtain for the Licensee the right to continue the use of this part of the Products, or (ii) delete, replace or modify the Products to make the Products non-infringing. If ABT chooses to delete, replace or modify data or functionality that forms a substantial part of the Products, then ABT may - in whole or in part - terminate the License and refund to the Licensee the license fee paid by the Licensee for the infringing part of the Products. Unless otherwise explicitly stated in this clause any claim due to a Claim or the threat of a Claim - including claims for damages and/or pro rata reduction - shall be governed by the limitation of liability in clause 7. For the avoidance of doubt, this provision shall also apply under the circumstances stated in clause 8.1.
9.1 ABT may without the Licensee's consent assign its rights under this SLA to a third party, or entrust the performance of its obligations or parts hereof to subcontractors.
9.2 The Licensee may not assign his rights under this License to any third party without the prior written consent of ABT.
10.1 The license shall continue until terminated according to Sections 10.2 below unless otherwise stated in the License Certificate.
10.2 ABT may terminate the SLA and the license if (1) Licensee has materially beached any of the provisitons of the SLA, (2) ABT is required to do so by law. When the SLA comes to an end, all of the legal rights, obligations and liabilities that Licensee and ABT have benefited from, been subject to, or which have accrued over time while SLA has been in force or which are expressed to continue indefinitely, skal be unaffected by this cessation, and the provitions of chapter 14 in this SLA shall continue to such rights, obligations, and liabilities indefinitely.
10.3 If the license for the Products granted hereunder is terminated for any reason, Licensee must immediately uninstall the Products from the computer on which it is installed and shall certify to ABT in writing that the Products is uninstalled and all copies thereof have either been destroyed or returned to ABT.
All license fees for the Products are exclusive of taxes, withholdings, duties, or levies. Licensee shall pay all taxes associated with the Products, exclusive of any tax based on the income of ABT or its authorized reseller. If claiming a tax exemption, Licensee must provide a valid tax exemption certificate.
12.1 This SLA constitutes the entire agreement between the Parties with respect to the use of the Products and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this SLA will be binding unless in writing and signed by both Parties. If any portion of this SLA is held invalid, the Parties agree that such invalidity shall not affect the validity of the remainder of this SLA.
12.2 The Licensee accepts to use his best efforts to ensure that the AnyBody Users of the Product abide by the terms and conditions of this SLA and in particular but without limitation do not reproduce, redistribute, retransmit, publish or republish, or otherwise commercially or in any other way exploit the Product save only as permitted under the terms of this SLA. Furthermore, the Licensee accepts to monitor compliance by each user with the terms of this SLA and immediately on becoming aware of any unauthorized use by an authorized User of the Products or any part thereof or other breach of this SLA take all reasonable steps both to ensure that such user ceases such activity and to prevent any recurrence of it including where necessary by terminating that user's access to the Products or any part thereof.
12.3 Licensee shall comply with all Danish laws and regulations controlling the export of certain commodities and technical data, including without limitation all Export Administration Regulations of the Danish Department of Commerce. Among other things, these laws and regulations prohibit or require a license for the export of certain types of commodities and technical data to specified countries. Licensee will comply with, and will cause any employees, agents or affiliates to comply with, all Danish export control laws and regulations, that it bears sole responsibility for any violation of such laws and regulations by itself or its employees, agents or affiliates, and that it will indemnify, defend, and hold ABT and its licensors and Indemnified Parties harmless for the consequences of any such violation. Licensee represents, warrants and covenants that (1) Licensee is not, and is not acting on behalf of any person who is a citizen, or resident of, or who is controlled by the government of any country to which Denmark has prohibited export transactions and (2) Licensee will not permit the ASDK to be used for any purposes prohibited by law, including, any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
12.4 ABT shall be entitled to use Licensee's name and logo in ABT's list of references, including on ABT's website, as a user of the Products. Such use of Licensee's name and logo shall at all times be loyal to Licensee.
12.5 The Licensee declares to understand that the inherent methods of AMS as well as the models it can analyze are mathematical simplifications of the reality they are constructed to represent, and that these simplifications can lead to erroneous or misleading results.
12.6 The Licensee is encouraged to make all models developed with the Products available to the public at the Anyscript.org community without charge.
14. DISPUTES, CHOICE OF LAW AND VENUE
14.1 THIS SLA SHALL BE GOVERNED BY, AND EXCLUSIVELY CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE KINGDOM OF DENMARK, NOT TAKING INTO ACCOUNT ITS PROVISIONS THAT MAY LEAD TO THE APPLICATION OF ANY OTHER SUBSTANTIAL LAW THAN DANISH LAW.
14.2 ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE OR THE BREACH, TERMINATION OR INVALIDITY THEREOF OR THE PRODUCTS SHALL BE SETTLED BY THE ORDINARY DANISH COURTS.
14.3 THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE CITY COURT OF AALBORG, DENMARK, AS THE AGREED VENUE IN THE FIRST INSTANCE.
14.4 NOTWITHSTANDING THE ABOVE, ABT SHALL AT ITS SOLE DISCRESSION BE ENTITLED TO INITIATE PROCEEDINGS AGAINST THE LICENSEE IN A COURT OF ITS CHOICE INCLUDING WITHOUT LIMITATION IN CASE OF NON-PAYMENT BY THE LICENSEE OR THE LICENSEES INFRINGEMENT OF ABT'S INTELLECTUAL PROPERTY RIGHTS OR TRADE SECRETS OR BREACH OF THE LICENSE BY THE LICENSEE.