Terms and Conditions

 

 

MES End User License Agreement

Last amended: March 2019 – GLOBAL VERSION - NOT APPLICABLE FOR GREATER CHINA AREA
▻ Go to Version for Greater China

IMPORTANT – THE USE OF MES PRODUCTS IS SUBJECT TO LICENSE RESTRICTIONS. PLEASE READ THIS END USER LICENSE AGREEMENT ("EULA") CAREFULLY BEFORE USING MES PRODUCTS. IF YOU DO NOT AGREE WITH THE EULA, DO NOT INSTALL OR USE A MES PRODUCT.

The following provisions govern the license terms and conditions for using a MES Product as a Perpetual License, manufactured by Model Engineering Solutions GmbH, business address: Waldenserstraße 2-4, 10551 Berlin, Germany (hereinafter "Licensor” or "MES")by you personally or the business entity on whose behalf you are acting (hereinafter "Licensee").

If the Licensor provides the Licensee with additions (e.g. patches, amendments to the Documentation) or new versions of a MES Product (e.g. updates, upgrades) which replace prior versions of a MES Product within the context of a software support and maintenance agreement, the rectification of defects or otherwise, then the newer version of the MES Product shall be subject to the terms of use set forth in this EULA unless agreed differently with our company in writing.

 

1 DEFINITIONS, INTERPRETATION

The following definitions apply to the EULA:

"Designated Territory" shall mean the geographical area EMEA (Europe/MidEast/Africa), APAC (Asia/Pacific), and the AMERICAS (North - and South America) as set forth in the individual License Certificate. The geographial area of the People’s Republic of China, including the Special Administrative Regions of Hong Kong and Macao, as well as Taiwan is governed by a specific EULA.

"Documentation" means written information, provided by MES, that is part of the MES Product and that describes the features and various aspects of the software's intended operation, e.g., tutorials, user guides, and product descriptions, whether distributed in print or electronic form, that are in effect as of the date on which the MES Product is shipped to the Licensee.

“Dongle” means a small piece of hardware that connects to a COMPUTERand that is used as a form of copy protection or digital rights management to authenticate a piece of installed MES Product.

"Infringement Claim" shall mean a claim by a third party against the Licensee asserting that the Licensee’s use of the MES Product in accordance with the EULA violates the Third Party’s intellectual property right in the Designated Territory.

"License" is the Right of Use under the EULA.

"License Certificate" shall mean the written confirmation by the Licensor, specifying the Type of License for a MES Product under the EULA.

"License Files" shall mean the specific technical details to run the MES Product.

"License Protection" shall mean a mechanism that protects the Licensor against an unauthorized use of a Certain License Type.

"MES Product" shall mean the computer programs MES Model Examiner^®, MES Test Manager^®, MES Quality Commander^®, MES Model & Refactor^®, and MES M-XRAY^® in object code along with its Documentation. MES Products may also include software by Third Parties, which are provided under separate license terms that may be subject to other or additional terms and conditions, which are typically provided in a "Read Me"-file of a MES Product

“Perpetual License” shall mean a license to use the Licensed MES Product in perpetuity under the EULA.

"Quality Defect" shall mean with regard to the MES Product a deviation of it in functionality and quality from the functionality and quality agreed of the EULA and with regard to the Documentation, if an average prudent user with basic knowledge of the use of the MES Product is unable to grasp the individual functions of it using the Documentation and reasonable effort.

“Third Party” shall mean any party other than the Licensor or the Licensee.

"Type of License" shall mean each of the license models defined in Section 4 of the EULA.

 

2 SUBJECT MATTER

Subject matter of this EULA is the use of a MES Product by the Licensor that is subject of a License Certificate. The MES Product shall have the functionality and quality specified and described in the Documentation. The Licensee was able to access the Documentation, provided on Licensees' request prior to the execution of this EULA and has informed itself about the functionality of the MES Product and its fitness for the intended use. The Licensor shall not be liable to the Licensee for any other functionality or quality of the MES Product, in particular the MES Product’s suitability for any particular use intended by the Licensee or its suitability for its ordinary use, its compliance with descriptions and statements of the Licensor or its employees made in public or in advertisements, unless the Licensor has approved such description and statements explicitly in writing. The specifications and descriptions of the MES Product in the Documentation shall not be deemed or construed a guarantee of quality given by the Licensor.

 

3 SCOPE OF LICENSE

3.1 Right of Use - The Licensor grants the Licensee a non-exclusive right to use the MES Product, during a period of time and within a scope set forth in the License Certificate on the condition precedent of the payment of all applicable license fees and subject to the terms of this EULA; this includes the right to access, install, download, copy or otherwise benefit from using the functionality of the MES Product in accordance with the Documentation. The right of use of the MES Product is granted for the Designated Territory and limited to the Type of License as provided in the License Certificate. The Licensee may only use the MES Product for its internal use. The Licensee shall not use the MES Product to render data processing center services, outsourcing services or application services to Third Parties and shall not let or sublicense the MES Product to Third Parties without the prior written consent of the Licensor.

3.2 Ownership - Unless explicitly set forth otherwise in the EULA, all rights in the MES Product and in all copies made thereof by the Licensee – whether amended or not – in particular the copyright and the right to and on inventions and other intellectual property rights remain exclusively with the Licensor.

3.3 Distributors - No distributor, or other Third Party contracted by the Licensor for the purposes of selling and distributing MES Products, shall have any rights in the MES Product, other than the right to distribute or sell the MES Product in accordance with such written agreement entered into between on the one hand, the Licensor, and on the other hand, such distributor or other Third Party. No such distributor or other Third Party shall at anytime be considered an authorized representative of the Licensor under the EULA. Furthermore, such distributors and other Third Parties shall have no rights whatsoever to enter into separate license agreements with licensees or users, nor to deliver or otherwise deal directly with the MES Products.

3.4 Term and Termination - The EULA is effective upon Licensee's acceptance or upon Licensee's downloading, installing, accessing or using the MES Product. The EULA shall continue in effect until expiration or termination as provided herein. Without prejudice to any other rights, the EULA will terminate automatically without notice if Licensor breaches or fails to comply with any of the limitations or other requirements described herein.

In case of a termination of the Licensee’s right of use in the licensed MES Product, in particular in case of a withdrawal from the EULA, the Licensee shall return all tangible storage media with the MES Product received – if any – and delete all copies of the MES Product, unless the Licensee is obliged to retain copies of the MES Product pursuant to mandatory statutory law and shall confirm such deletion in writing to the Licensor.

 

4 TYPES OF LICENSES

MES Products are licensed under the following licensing models:

4.1 Dongle License - A "Dongle License" permits the Licensee the use of one instance of the MES Product at a time on a single PC, but is not fixed to a designated PC. The Use of the MES Product on a specific computer is authorized by plugging the Dongle into the computer's USB port and by License Files. An external access to the MES Product installed on the computer e.g. by remote desktops, web interfaces, command line, batch functionality and continuous integration servers is not permitted. The use of Dongle management devices and software is not permitted.

4.2 Node-Locked License - A "Node-Locked License" permits the Licensee the use of one instance of the MES Product and is fixed to one designated computer by its MAC address. It uses the MAC address of a computer specified by the Licensee and License Files to authorize the Use of the MES Product. Each copy of the Licensed MES Product shall be installed and used by the Licensee on only one single computer. The Licensee agrees to provide the Licensor with the MAC address of each computer unit on which a copy of the MES Product will be installed, prior to installing or using the MES Product. An external access to the MES Product installed on the computer e.g. by remote desktops, web interfaces, command line, batch functionality and continuous integration servers is not permitted.

4.3 Floating Network License (FNL) - A “Floating Network License“ permits the Licensee the use of one or more instances of the MES Product on one or more work stations. The Use of the MES product is authorized by a license server in combination with the License Files. A Floating Network License is granted subject to the following restrictions:

a. Unless otherwise approved by the Licensor in writing, the Floating Network Licenses shall be used only in one of the Designated Territories. Floating Network License must not be invoked or used from outside the Designated Territory.

b. Depending on the Licensed MES Product, a timeout mechanism (linger time) may apply. The License Certificate provides information about any linger time that applies.

c. An external access to the MES Product installed on the computer e.g. by remote desktops, web interfaces, command line, batch functionality and continuous integration servers is not permitted.

4.4 Continuous Integration License (CIL) - A ”Continuous Integration License” CIL permits the Licensee the Use of the MES Product within a centralized automated process environment. The CIL allows the remote triggering of the MES Product on an external installation via e.g. a script.

The total number of instances that can be used in parallel is specified in the license file that is subject for the Use of the MES Product. The Use of the MES product is authorized by a license server in combination with the License Files. Unless otherwise approved by the Licensor in writing, the Continuous Integration License shall be used only in one of the Designated Territories. A Continuous Integration License must not be invoked or used from outside of the Designated Territory.

The access of the CIL by a specific user requires a client access license (CAL) for this user. The Use of a CIL within a team of a given number of users thus requires CALs for every user who has access to the centralized process environment. Access shall be defined as either operating the MES Product in the centralized process environment, or accessing outputs e.g. reports created by the MES Product. The CAL does not permit the usage of the functions of the MES Product’s graphical user interface, configuration, or batch functions.

 

5 LICENSE PROTECTION, CONFIDENTIALITY

5.1 License Protection - The MES Product contains a License Protection. Licensee may not circumvent or try to circumvent the License Protection, either by using any technical means, hardware or software, in order to eliminate, evade, duplicate or otherwise manipulate the License Protection, or in any other way. This expressly includes the reproduction of the MES Product, the bypassing of the protection mechanism by means of a virtual machine, and the indirect use of a Dongle via a device server or other network technique. It is not allowed to mechanize or automate the process of checking out or in license keys for the MES Product, including by running a second session of a software, or rebooting the license manager, for a principal purpose of minimizing the license check out time of any programs, or otherwise circumventing the intended license manager operation. Any attempt to circumvent the License Protection is prohibited and constitutes a material breach of the EULA.

5.2 Confidentiality - Licensee shall permit only authorized users, who may rightfully use the licensed MES Product within the parameters of this EULA. Except as expressly authorized by the EULA, Licensee shall not make available the MES Product to any Third Party, or use the MES Product or any license key for any purpose other than exercising rights expressly granted to the Licensor hereunder. Licensor agrees to cooperate with and assist MES in identifying and preventing any unauthorized use, copying, or disclosure of the MES Product, Documentation, or any portion thereof.

5.3 Users – Licensor shall only authorize user with whom it has entered into an employment or other written agreement that is no less onerous on such user than the terms set out in the EULA, in particular with regard to what is stated herein under clauses 5.1 (License Protection), 5.2 (Confidentiality), 7 (Restrictions), and 8 (Export). The Licensee shall be fully liable vis-à-vis the Licensor for any EULA violations committed by its users.

 

6 TRANSFER

The Licensee may transfer the License in the MES Product to a Third Party, if (i) Licensee fully and permanently ceases to use the MES Product, (ii) Licensee has handed over all original copies of the MES Product to such Third Party and Licensee has deleted all copies made by Licensee and (iii) the Third Party has agreed in writing vis-à-vis the Licensor to comply with the terms of the EULA regarding use and transfer of the MES Product. Additional fees may apply to a transfer of the License, or the principal location of any licensed user, to another Designated Territory, or to contract for worldwide use.

 

7 RESTRICTIONS

The License is subject to the express restrictions set forth below:

7.1 Proprietary Markings - The Licensee shall not remove or destroy any proprietary markings or proprietary legends placed upon or contained within the MES Product.

7.2 Duplication / Copying - The Licensee may duplicate the Documentation, at no additional charge and for the Licensee's use only, as long as all the required proprietary markings are retained on all the duplicated copies. Copying of the MES Product is prohibited unless it is necessary for using the MES Product as intended according to the EULA or for normal archiving practices, or is otherwise permitted under applicable law. It is not allowed to disclose or transfer activation keys, login credentials, and/or License File to a Third Party, or allow them to be used by a Third Party.

7.3 No Modification, Decompilation, Etc. - The Licensee shall not copy, modify, adapt, translate or create derivative works based upon the MES Product or associated documentation. Further, the Licensee shall not reverse-engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Licensed MES Product, unless this is expressly permitted by the applicable law. Any proprietary markings, serial numbers or other attributes of identification shall not be modified. It is not permitted to access, enable access to, modify, translate, or deploy temporary intermediate files produced by a MES Product.

7.4 No Internet, Network Or Virtual Applications - The Licensee is not authorized to access (directly or indirectly) the Licensed MES Product or its license protection mechanism via Internet or network applications (e.g., Citrix, Microsoft Remote Desktop or other terminal/device servers) or to grant third parties such access. This restriction does not include the use of the Licensed MES Product within the framework of a Floating Network License and the Continuous Integration License as permitted under Section 4. Furthermore, the Licensee is not authorized to run the Licensed MES Product as an application program on a virtual machine separately from a physical computer where this enables the Licensed MES Product to be used outside or independently of the number or type of licenses granted.

 

8 EXPORT

The Licensee must not use the MES Product in a manner or ship, transfer or export it to a country to which export is prohibited under the export provisions of the United States or other export laws and regulations, restrictions or provisions (hereinafter "Export Laws"). If the MES Product is subject to export control pursuant to the Export Laws, the Licensee warrants that it is neither a citizen nor a resident of a country on which an embargo has been imposed and the Licensee is not prohibited under the Export Laws from receiving the MES Product. All rights to use the MES Product are granted subject to the condition that those rights are void if the Licensee fails to meet the terms and conditions of this EULA.

 

9 AUDIT RIGHTS

Upon at least fifteen (15) days prior notice, the Licensor may audit the Licensee’s compliance with the terms and conditions of this EULA, provided that such audit(s) shall be conducted during normal business hours and in such a manner as not to interfere unreasonably with the operations or to endanger confidential information of the Licensee. Such audits may be conducted only by an independent expert who is subject to professional secrecy or otherwise bound to confidentiality. Such expert may provide the Licensor with such information only – if any – to the extent required by the Licensor to assert claims for and to prosecute Licensee’s breaches of intellectual property rights of the Licensor or to identify potential violations against this EULA or other contractual responsibilities. If such an inspection reveals that the Licensee is not compliant with EULA, the Licensor may exercise any or all rights and remedies provided under this EULA or by law, including but not limited to the right to recover the cost of such audit.

 

10 LIMITED WARRANTY

10.1 Free of Quality Defects - The Licensor warrants that the Software Product is free of Quality Defects at the time the risk passes and does not infringe any rights of third parties in the Designated Territory. If the media on which the MES Product is supplied is found to be defective and the Licensor is notified of this by the Licensee within 14 days of delivery, the Licensor will replace the copy of the MES Product delivered to the Licensee.

10.2 Notification by Licensee - The Licensee shall notify the Licensor of any defect in writing and without undue delay. The assertion of warranty claims shall be otherwise excluded, regardless on which legal basis or theory.

10.3 Rectification of Quality Defects - The Licensor shall rectify Quality Defects at its own election by either repairing or replacing the defective MES Product or respective parts thereof.

10.4 New Versions of MES Product - The Licensor may replace a defective MES Product with newer versions of the same, provided that (i) the replacement is at least equal in performance and functionality to the MES Product to be replaced or (ii) the replacement does not require undue adjustments on the Licensee’s side, (e.g. the use of a different operating system or hardware with higher performance). For the avoidance of doubt, additional training of personnel required due to minor changes in the structure of the MES Product shall not be construed as undue adjustment in the meaning of the aforesaid sentence.

10.5 Workarounds - If a Quality Defect cannot be rectified by repairing or replacing the MES Product, the Licensor may provide the Licensee with workarounds for the respective defect. To the extent reasonable, such workarounds shall be considered a rectification of the Quality Defect.

10.6 Statutory Rights - The Licensee’s rights pursuant to mandatory statutory law to lower payment, withdraw from the Agreement and to claim damages or futile expenses in case of a Quality Defect remain unaffected.

10.7 Notification and Indemnification - The Licensee shall notify the Licensor without undue delay of any Infringement Claim giving reasonable details. The Licensor shall promptly assume full control over any court- or out-of-court defense activities of the Licensee against such Infringement Claim and shall indemnify the Licensee of all reasonable expenses and costs, including reasonable attorney’s fees and damages finally awarded against the Licensee.

If (a) a final and binding court decision confirms the infringement of Third Party’s intellectual property rights through the MES allowed use of the MES Product by the Licensee in the Designated Territory, or (b) a preliminary injunction is properly served upon the Licensee, or (c) the Licensor concedes that the MES Product infringes third party’s intellectual property right, the Licensor shall promptly procure an irrevocable release for the Licensee, free of cost to the Licensee, from such alleged Infringement Claim(s) for past use; and for continued use of the MES Product, subject to the Infringement Claim(s), do one of the following:

• procure for the Licensee a license for future use of the MES Product free of charge for the Licensee, and if unable to procure such right,
• modify or replace the MES Product so as to make it non-infringing to the satisfaction of such third party while retaining their form, fit and functionality.

10.8 Failure To Assume Control - If the Licensor fails to assume full control over the defense of the Licensee as set forth in the section above within thirty (30) days upon notification by the Licensee, the Licensee may conduct the defense and the Licensor shall reimburse the Licensee for the costs incurred by it including reasonable attorney’s fees and damages finally awarded against the Licensee to the extent of the MES allowed use of the MES Product.

10.9 Assistance by the Licensee - The Licensee shall provide, upon the Licensor’s written request and at the expense of the Licensor, reasonable assistance to the Licensor to support the Licensor in the settlement of and/or defense against the Infringement Claim. The Licensor agrees to provide such reasonable assistance to the Licensee where the Licensee undertakes to conduct the defense pursuant the provisions of this Section.

10.10 No Liability under this Section 10 - The Licensor shall not be liable to the Licensee under this Section 10, if and to the extent the Infringement Claims or Quality Defects are based solely on an alteration or modification or use of the MES Product by the Licensee which is not in compliance with the EULA..

10.11 No warranty - The warranty of this Section 10 shall be void in so far as the MES Product is a free copy, a pre-release version, a beta tester version, a demonstration product or a free copy not meant for resale (NFR copy).

 

11 LICENSORS LIABILITY

No claims for damages shall be asserted against the Licensor (including its legal representatives and agents) on any legal grounds whatsoever except in compliance with the following terms:

11.1 The Licensor is liable for intentional acts and in cases where liability is mandatory by law, including, but not restricted to, cases where product liability law applies, where there is culpably caused injury or damage to health or loss of life, or material damage due to the absence from the Licensed MES Product of features that are guaranteed by the Licensor.

11.2 If none of the foregoing applies, the Licensor is liable as follows:

a. In cases of gross negligence. In such cases, the liability for damage to property and assets shall be limited to the amount of damage that might reasonably be predicted, unless the damage is caused by members of the Licensor´s executive body or by the Licensor´s authorized managers, or unless an essential contractual duty, which has to be fulfilled in order to reasonably fulfill the contract and which the contractual partner may reasonably expect to be fulfilled (cardinal duty), is violated.

b. In cases of slight negligence, in as much as a cardinal duty is violated. In such cases liability for damage to property and financial damage shall be limited to the damage that might reasonably be expected in such cases.

11.3 In the event of data loss, the Licensor is liable under the conditions stated above only for and up to the cost of recovering the data, and only on the condition that proper data backup has been performed by the Licensee.

11.4 No liability is otherwise accepted. This particularly applies to consequential harm caused indirectly by a defect, including loss of profit or non-achievement of savings.

11.5 To the extent possible and allowed by law the parties herewith explicitly agree that any punitive damages shall be excluded from the Licensor’s liability.

 

12 PUBLIC USE OF LICENSOR'S NAME

The Licensee consents to the public use of its name as a Licensee of MES Products, unless the Licensee notifies MES in writing that it withholds such consent.

 

13 MISCELLANEOUS

13.1 Written Form Requirement - Any amendments or additions to this Agreement must be made in writing and must be expressly marked as such. This also applies to this written form requirement.

13.2 Severability - In the event that any of the above terms is or becomes invalid, the remaining terms shall continue in full force and effect.

13.3 Headings - Any headings in the EULA are included for convenient reference only and shall not affect the interpretation of the EULA.

13.4 Waiver - Any failure to enforce, or any waiver of, any right under the EULA by the Licensor shall not be construed as a waiver of future rights.

13.5 Choice of Law - Except in cases where the provisions of the EULA differ from the mandatory legal regulations, the latter shall apply additionally. This Agreement shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

13.6 Place of Jurisdiction - The courts of Berlin, Germany, shall have the exclusive jurisdiction over all disputes arising from or in connection with the EULA.

13.7 Trademark Notice - MES Model Examiner^®, MES Test Manager^®, MES Quality Commander^®, MES M-XRAY^®, and MES Model & Refactor^® are registered trademarks in Germany. All other trademarks referenced in the Documentation are the property of their respective owners.

 

MES EVALUATION LICENSE AGREEMENT

Last amended: May 2017

IMPORTANT – THE USE OF MES PRODUCTS IS SUBJECT TO LICENSE RESTRICTIONS. PLEASE READ THIS EVALUATION LICENSE AGREEMENT ("Agreement") CAREFULLY BEFORE USING MES PRODUCTS. IF YOU DO NOT AGREE WITH THE AGREEMENT, DO NOT INSTALL OR USE A MES PRODUCT.

The following provisions govern the license terms and conditions for using a MES Product, manufactured by Model Engineering Solutions GmbH, business address: Waldenserstraße 2-4, 10551 Berlin, Germany (hereinafter "Licensor”) by you personally or the business entity on whose behalf you are acting ("Licensee") for evaluation purposes only.

 

1 DEFINITIONS, INTERPRETATION

The following definitions apply to the EULA:

"Designated Territory" shall mean the geographical area (Europe, Asia and/or the Americas) set forth in the License Certificate.

"Documentation" means written information, provided by the Licensor that is part of the MES Product and that describes the features and various aspects of the software's intended operation, e.g., tutorials, user guides, and product descriptions, whether distributed in print or electronic form, that are in effect as of the date on which the MES Product is shipped to the Licensee.

“Dongle” means a small piece of hardware that connects to a PC and that is used as a form of copy protection or digital rights management to authenticate a piece of installed MES Product.

"Evaluation Period" means the period of days, authorized by Licensor to Licensee to run the MES Product for evaluation purposes. Under no circumstances the Evaluation Period shall exceed 28 days without MES‘ prior written consent.

"License" is the right of use of a purchased MES Product under its end user license agreement.

"License Certificate" shall mean the written confirmation by the Licensor, specifying the Type of License for a MES Product under the Agreement.

"License Files" shall mean the specific technical details to run the MES Product.

"License Protection" shall mean a mechanism that protects the Licensor against an unauthorized use of a certain License Type.

"MES Product" shall mean the computer programs MES Model Examiner®, MES Test Manager®, MES Quality Commander® and MES M-XRAY®, owned by the Licensor, in object code along with its Documentation. MES Products may also include software by Third Parties, which are provided under separate license terms that may be subject to other or additional terms and conditions, which are typically provided in a "Read Me"-file of a MES Product.

“Third Party” shall mean any party other than the Licensor or the Licensee.

"Type of License" shall mean each of the license models defined in Section 4 of the Agreement.

 

2 SUBJECT MATTER

Subject matter of this Agreement is the use of a MES Product by the Licensor that is subject of a License Certificate. The MES Product shall have the functionality and quality specified and described in the Documentation. The Licensee was able to access the Documentation provided on Licensees’ request prior to the execution of this Agreement and has informed itself about the functionality of the MES Product and its fitness for the intended use.

 

3 SCOPE OF LICENSE

3.1 Right of Use - Subject to Licensee’s compliance with the terms and conditions of this Agreement, Licensor grants to Licensee a nonexclusive, non-transferable license, solely during the Evaluation Period, to use and operate the MES Product solely for the purpose of evaluating the MES Product for a potential purchase of a License. The right of use of the MES Product is granted for the Designated Territory and limited to the Type of License as provided in the License Certificate. The Licensee may only use the MES Product for its internal use. The Licensee shall not use the MES Product to render data processing centre services, outsourcing services or application services to Third Parties and shall not let or sublicense the MES Product to Third Parties without the prior written consent of the Licensor.

3.2 Ownership - Unless explicitly set forth otherwise in the Agreement, all rights in the MES Product and in all copies made thereof by the Licensee – whether amended or not – in particular the copyright and the right to and on inventions and other intellectual property rights remain exclusively with the Licensor.

3.3 Term and Termination - The Agreement is effective upon Licensor's acceptance or upon Licensee’s downloading, installing, accessing or using the MES Product. The Agreement shall continue in effect until expiration of the Evaluation Period or termination as provided herein. Without prejudice to any other rights, the Agreement will terminate automatically without notice if Licensor breaches or fails to comply with any of the limitations or other requirements described herein. In case of a termination of the Licensee’s right of use in the licensed MES Product, in particular in case of a withdrawal from the Agreement, the Licensee shall return all tangible storage media with the MES Product received – if any – and delete all copies of the MES Product, unless the Licensee is obliged to retain copies of the MES Product pursuant to mandatory statutory law and shall confirm such deletion in writing to the Licensor. The provisions of Sections 5.2 and 8 shall survive termination or expiration of this Agreement for any reason.

 

4 TYPES OF LICENSES

MES Products are licensed under the following licensing models:

4.1 Dongle License - A "Dongle License" permits the Licensee the use of one instance of the MES Product at a time on a single PC, but is not fixed to a designated PC. The use of the MES Product on a specific PC is authorized by plugging a Dongle into the PC's USB port and by License Files. An external access to the MES Product installed on the workstation e.g. by remote desktops, web interfaces, command line integration, batch functionality and continuous integration servers is not permitted.

4.2 Node-Locked License - A "Node-Locked License" permits the Licensee the use of one instance of the MES Product and is fixed to one designated PC by the MAC address. It uses the MAC ad-dress of a PC specified by the Licensee and License Files to authorize the use of the MES Product. Each copy of the Licensed MES Product shall be installed and used by the Licensee on only one single computer. The Licensee agrees to provide the Licensor with the MAC address of each computer unit on which a copy of the MES Product will be installed, prior to installing or using the MES Product. An external access to the MES Product installed on the workstation e.g. by remote desktops, web interfaces, command line integration, batch functionality and continuous integration servers is not permitted.

4.3 Floating Network License (FNL) - A “Floating Network License“ permits the Licensee the use of one or more instances of the MES Product on a client and is limited only by the number of Licenses available on the Licensees’ server that is subject for the use of the MES Product. It uses this server and License Files to authorize the use of the MES Product. A Floating Network License is granted subject to the following restrictions:

a. Unless otherwise approved by the Licensor in writing, the Floating Network Licenses shall be used only in one of the Designated Territories. A Floating Network License must not be invoked or used from outside the Designated Territory. Global sharing of centrally installed licenses is not permitted.

b. Depending on the Licensed MES Product, a timeout mechanism (linger time) of 30 minutes may apply, i.e. the licenses are not released and made available to other users until 30 minutes after the last action triggering an automatic license check. The License Certificate provides information about any linger time applies.

c. An external access to the MES Product installed on the workstation e.g. by remote desktops, web interfaces, command line integration, batch functionality and continuous integration servers is not permitted.

4.4 Continuous Integration License (CIL) - A ”Continuous Integration License” permits the Licensee to use the MES Product in an automated process. It is allowed to trigger the MES Product by a script, server and by a continuous integration server. The MES Product is limited only by the number of licenses available for the server that is subject for the use of the MES Product. Unless otherwise approved by the Licensor in writing, the Continuous Integration License shall be used only in one of the Designated Territories. A Continous Integration License must not be invoked or used from outside that of the Designated Territory. Global sharing of centrally installed licenses is not permitted.

 

5 LICENSE PROTECTION, CONFIDENTIALITY

The MES Product contains a License Protection. Licensee may not circumvent or try to circumvent the License Protection, either by using any technical means, hardware or software, in order to eliminate, evade, duplicate or otherwise manipulate the License Protection, or in any other way. This expressly includes the reproduction of the MES Product, the bypassing of the protection mechanism by means of a virtual machine, and the indirect use of a Dongle via a device server or other network technique. It is not allowed to mechanize or automate the process of checking out or in license keys for the MES Product, including by running a second session of a software, or rebooting the license manager, for a principal purpose of minimizing the license check out time of any programs, or otherwise circumventing the intended license manager operation. Any attempt to circumvent the License Protection is prohibited and constitutes a material breach of the Agreement.

 

6 CONFIDENTIALITY

Licensee shall permit only authorized users, who may rightfully use the licensed MES Product. Except as expressly authorized by the Agreement, Licensee shall not make available the MES Product to any Third Party, or use it, or use the MES Product or any license key for any purpose other than exercising rights expressly granted to the Licensor hereunder. Licensor agrees to cooperate with and assist the Licensor in identifying and preventing any unauthorized use, copying, or disclosure of the MES Product, Documentation, or any portion thereof.

 

7 RESTRICTIONS

The License is subject to the express restrictions set forth below:

7.1 Proprietary Markings - The Licensee shall not remove or destroy any proprietary markings or proprietary legends placed upon or contained within the MES Product.

7.2 No Modification, Decompilation, Etc. - The Licensee shall not copy, modify, adapt, translate or create derivative works based upon the MES Product or associated documentation. Further, the Licensee shall not reverse-engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Licensed MES Product, unless this is expressly permitted by the applicable law. Any proprietary markings, serial numbers or other attributes of identification shall not be modified. It is not permitted to access, enable access to, modify, translate, or deploy temporary intermediate files produced by a MES Product.

7.3 No Internet, Network Or Virtual Applications - The Licensee is not authorized to access (directly or indirectly) the Licensed MES Product or its license protection mechanism via Internet or network applications (e.g., Citrix, Microsoft Remote Desktop or other terminal/device servers) or to grant Third Parties such access. This restriction does not include the use of the Licensed MES Product within the framework of a Floating Network License or within the Continuous Integration License as permitted under Section 4. Furthermore, the Licensee is not authorized to run the Licensed MES Product as an application program on a virtual machine separately from a physical PC where this enables the Licensed MES Product to be used outside or independently of the number or type of licenses granted.

 

8 EXPORT

The Licensee undertakes not to use the MES Product in a manner or to ship, transfer or export it to a country to which export is prohibited under the export provisions of the United States or other export laws, restrictions or provisions (hereinafter "Export Laws"). If the MES Product is also subject to export control pursuant to the Export Laws, the Licensee warrants that it is neither a citizen nor a resident of a country on which an embargo has been imposed and the Licensee is not prohibited under the Export Laws from receiving the MES Product. All rights to use the MES Product are granted subject to the condition that those rights are void if the Licensee fails to meet the terms and conditions of this Agreement.

 

9 AUDIT RIGHTS

Upon at least fifteen (15) days prior notice, the Licensor may audit the Licensee’s compliance with the terms and conditions of this Agreement, provided that such audit(s) shall be conducted during normal business hours and in such a manner as not to interfere unreasonably with the operations or to endanger confidential information of the Licensee. Such audits may be conducted only by an independent expert who is subject to professional secrecy or otherwise bound to confidentiality. Such expert may provide the Licensor with such information only – if any – to the extent required by the Licensor to assert claims for and to prosecute Licensee’s breaches of intellectual property rights of the Licensor. If such an inspection reveals that the Licensee is not compliant with Agreement, the Licensor may exercise any or all rights and remedies provided under this Agreement or by law, including but not limited to the right to recover the cost of such audit.

 

10 NO WARRANTY

The MES Product is being submitted "as is". Licensor disclaims all warranties, conditions and representations with regards to the MES Product, including those related to fitness for a particular purpose, satisfactory quality, accuracy or completeness of results, conformance with the documentation, and rights of Third Parties.

 

11 LICENSORS LIABILITY

No claims for damages may be asserted against the Licensor (including its legal representatives and agents) on any legal grounds whatsoever except in compliance with the following terms:

11.1 The Licensor is liable for intentional acts and in cases where liability is mandatory by law, including, but not restricted to, cases where product liability law applies, where there is culpably caused injury or damage to health or loss of life, or material damage due to the absence from the licensed MES Product of features that are guaranteed by the Licensor.

11.2 If none of the foregoing applies, the Licensor is liable as follows:

a. In cases of gross negligence. In such cases, the liability for damage to property and assets shall be limited to the amount of damage that might reasonably be predicted, unless the damage is caused by members of the Licensor´s executive body or by the Licensor´s managers, or unless an essential contractual duty, which has to be fulfilled in order to reasonably fulfill the contract and which the contractual partner may reasonably expect to be fulfilled (cardinal duty), is violated.

b. In cases of slight negligence, in as much as a cardinal duty is violated. In such cases liability for damage to property and financial damage shall be limited to the damage that might reasonably be expected in such cases.

11.3 In the event of data loss, the Licensor is liable under the conditions stated above only for and up to the cost of recovering the data, and only on the condition that proper data backup has been performed by the Licensee.

11.4 No liability is otherwise accepted. This particularly applies to consequential harm caused indirectly by a defect, including loss of profit or non-achievement of savings.

 

12 MISCELLANEOUS

12.1 Written Form Requirement - Any amendments or additions to this Agreement must be made in writing and must be expressly marked as such. This also applies to this written form requirement.

12.2 Severability - In the event that any of the above terms is or becomes invalid, the remaining terms shall continue in full force and effect.

12.3 Headings - Any headings in the Agreement are included for convenient reference only and shall not affect the interpretation of the Agreement.

12.4 Waiver - Any failure to enforce, or any waiver of, any right under the Agreement by the Licensor shall not be construed as a waiver of future rights.

12.5 Choice of Law - Except in cases where the provisions of the Agreement differ from the legal regulations, the latter shall apply additionally. This Agreement shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

12.6 Place of Jurisdiction - The courts of Berlin, Germany, shall have the exclusive jurisdiction over all disputes arising from or in connection with the Agreement.

12.7 Trademark Notice - MES Model Examiner®, MES Test Manager®, MES Quality Commander®, MES M-XRAY® are registered trademarks in Germany. All other trademarks referenced in the Documentation are the property of their respective owners.

 

MODEL ENGINEERING SOLUTIONS GMBH - GENERAL TERMS AND CONDITIONS ("GTC")

For: Support and Maintenance Services for MES Products with Perpetual Licenses
Last amended: January 2017

 

1 GENERAL

1.1 The following General Terms and Conditions shall apply for all contracts between Model Engineering Solutions GmbH, business address: Waldenserstraße 2-4, 10551 Berlin, Germany (hereinafter: "MES"), and its client (hereinafter: "Customer") for support and maintenance services.

1.2 Subject matter of the pertinent agreement is the provision of product updates for MES Products which the Customer has purchased as a Perpetual License and support by MES for the Customer in using MES Products.

1.3 Other General Terms and Conditions of either party shall not apply. This shall apply even if a contractual party has not expressly objected to the General Terms and Conditions of the other contractual party. Additional terms and conditions of the Customer shall require the express written consent of MES.

1.4 Offers are always non-binding. Contracts shall only come about upon written confirmation on the part of MES. If the service is rendered without the Customer first receiving an order confirmation, the contract shall come about when the rendering of the service commences.

 

2 DEFINITIONS

"Customer Support" shall mean support services to be rendered to the Customer during the times and to the extent stated in the corresponding agreement and/or the GTC.

"Designated Territory" shall mean the geographical area (Europe, Asia and/or the Americas) set forth in the License Certificate.

“Documentation” means written information, provided by MES, that is part of the MES Product and that describes the features and various aspects of the software's intended operation, e.g., tutorials, user guides, and product descriptions, whether distributed in print or electronic form, that are in effect as of the date on which the MES Product is shipped to the Customer as licensee of a MES Product.

"EULA" shall mean an End User License Agreement for a MES Product.

"Force Major" shall mean any event beyond the reasonable control of either party including, amongst other things, unpredictable adverse weather conditions, national industrial strikes (excluding strikes or labour disputes originated by or involving only the relevant party’s workforce or any part of it or the workforce of its agents or sub-contractors), war, acts of God, acts of terrorism, floods, earthquakes or civil disturbance.

"Infringement Claim" shall mean a claim by a third party against the Customer asserting that the Customer’s use of the MES Product in accordance with the EULA violates the third party’s intellectual property right in the Designated Territory.

"License Certificate" shall mean the written confirmation by MES, specifying the type of license and the Designated Territory for a MES Product under the EULA.

"Maintenance" shall mean the supply by MES to the Customer with updates and upgrades for the designated MES Product stated in the corresponding agreement and the GTC.

"MES Product" shall mean the computer programs MES Model Examiner®, MES Test Manager®, MES Quality Commander® and MES M-XRAY® in object code along with its Documentation. MES Products may also include software by Third Parties, which are provided under separate license terms that may be subject to other or additional terms and conditions, which are typically provided in a "Read Me"-file of a MES Product.

"Perpetual License" shall mean a license to use the Licensed MES Product in perpetuity under the EULA.

"Update" shall mean functional and/or feature improvements made to the MES Product at MES’s discretion, and which are deemed to be paid on the basis stated in the corresponding agreement that is intended to keep the current shipping version of the MES Product release competitive with related technology in the respective market, including but not limited to bug fixes, performance enhancements, improvements, or error corrections, but excluding Upgrades.

"Upgrade" shall mean the unique and significant functional and/or feature improvements made at MES’s discretion that are deemed to be a new software product for which Licensor charges separately, or for which MES provides a specific Upgrade path for licenses of previously released MES Product.

 

3 MAINTENANCE: RANGE OF SERVICES, RIGHTS OF USE

3.1 MES shall supply the Customer with updates and upgrades for the designated MES Product. The updates and upgrades shall be made available to the Customer electronically via the internet. The Customer has to register for the newsletter of MES on its website to receive the notification about updates and upgrades. The Customer is obliged to send a request to MES via email to its support email address, as provided by MES, to receive download links for the respective updates and upgrades that were notified in the actual respective newsletter.

3.2 The updates and upgrades shall only be provided with respect to the last software release supplied by MES for MES Product. The information provided by MES for MES Product, such as installation information and manuals, shall be updated by MES and made available to the Customer together with the update or upgrade.

3.3 Personal support on site at the Customer and customized changes to MES Product and restoration of data pools are not subject matter of this agreement.

3.4 All updates or upgrades shall be made available to the Customer on the basis of the EULA valid for a MES Product.

3.5 All licenses at a distinguished customer site have to be under maintenance. Support and maintenance services can not be purchased for individual licenses at one customer site.

 

4 CUSTOMER SUPPORT: RANGE OF SERVICES

4.1 MES shall also render the following services under Customer Support:

• Advice and services in conjunction with MES Product functions;
• Dealing with defects arising during the proper and intended use of MES Product or becoming apparent in the related Documentation.

4.2 The services also cover defects or other faults reported to MES about MES Product, regardless of use, by the Customer. This shall be without prejudice to the Customer's existing warranty claims.

4.3 Fault handling within the meaning of this agreement includes localisation of the cause, fault diagnosis and services aimed at rectifying the fault (especially patches and service packs). MES accepts no responsibility for rectification of the fault. MES can also opt to provide fault handling in the form of a workaround, update or upgrade delivery and, after liaison with the Customer, also by supplying a new version.

4.4 Customer Support does not include:

• Services outside agreed support hours;
• Services for MES Product not used under the operating conditions stipulated by MES;
• Services for MES Product changed by programming work not carried out by MES;
• Services for computer programs or parts thereof not forming part of MES Product;
• Services for a MES Product with a release version no longer maintained by MES;
• Services required because the Customer fails to meet duties to participate.

4.5 Customer Support shall be rendered during MES' service hours that are from Monday to Friday between 9 am to 5 pm CET/CEST excluding German public holidays.

4.6 Upon receipt of a sufficiently specific fault description, sent via email to MES' to the support email address, which includes the fault behaviour, affected product components and steps already taken, the stated reaction times pursuant to MES offer shall apply. A specific reaction time is not provided. The reaction shall be within a reasonable time period.

4.7 If failing to meet a given performance period is due to events for which MES is not answerable, also in the event of Force Majeure, the performance periods shall be postponed by the duration of the resulting downtime plus a reasonable period for recommencing provision of the services.

 

5 THE CUSTOMER’S DUTIES TO PARTICIPATE, DATA BACKUP

It shall be the Customer's sole responsibility to install the update or upgrade. It is also the Customer's responsibility to regularly back up data, especially before installing updates or upgrades.

 

6 REMUNERATION

6.1 For the contractually agreed services for Maintenance and Customer Support the Customer shall owe the pertinent agreed remuneration due and payable for the agreed term in advance, within 14 days after invoicing at the latest. Unless agreed otherwise in a particular case, prices are quoted "net", plus the pertinent sales tax valid at the time. Payments shall only be deemed rendered once they have been credited to a MES bank account.

6.2 The Customer can only offset against undisputed or legally established claims; this also applies for the assertion of a right of retention.

 

7 WARRANTY

7.1 Free of defects - MES and the Customer are aware that independently of the current state of the art, defects in MES Product cannot be excluded completely even when taking the greatest possible care; unlimited functionality of MES Product and/or correction of all defects cannot therefore be completely warranted. MES warrants that the services are free of defects at the time the risk passes and does not infringe any rights of third parties in the Designated Territory.

7.2 Notification by Customer - The Customer shall notify MES of any defect in writing and without undue delay. The assertion of warranty claims is otherwise excluded.

7.3 Rectification of Quality Defects - MES shall rectify defects at its own election by either repairing or replacing the defective MES Product or respective parts thereof.

7.4 New Versions of MES Product - MES may replace a defective MES Product with newer versions of the same, provided that (i) the replacement is at least equal in performance and functionality to MES Product to be replaced and (ii) the replacement does not require undue adjustments on the Customer’s side, (e.g. the use of a different operating system or hardware with higher performance). For the avoidance of doubt, additional training of personnel required due to minor changes in the structure of MES Product shall not be construed as undue adjustment in the meaning of the aforesaid sentence.

7.5 Workarounds - If a Quality Defect cannot be rectified by repairing or replacing MES Product, MES may provide the Customer with workarounds for the respective defect. To the extent reasonable, such workarounds shall be considered a rectification of the Quality Defect.

7.6 Statutory Rights - The Customer’s rights pursuant to mandatory statutory law to lower payment, withdraw from the agreement and to claim damages or futile expenses in case of a Quality Defect remain unaffected.

7.7 Notification and Indemnification - The Customer shall notify MES without undue delay of any Infringement Claim giving reasonable details. The MES shall promptly assume full control over any court- or out-of-court defense activities of the Customer against such Infringement Claim and shall indemnify the Customer of all reasonable expenses and costs, including reasonable attorney’s fees and damages finally awarded against the Customer.

If (a) a final and binding court decision confirms the infringement of Third Party’s intellectual property rights through the use of MES Product by the Customer in the Designated Territory, or (b) a preliminary injunction is properly served upon the Customer, or (c) MES concedes that MES Product infringes third party’s intellectual property right, MES shall promptly procure an irrevocable release for the Customer, free of cost to the Customer, from such alleged Infringement Claim(s) for past use; and for continued use of MES Product, subject to the Infringement Claim(s), do one of the following:

• procure for the Customer a license for future use MES Product free of charge for the Customer, and if unable to procure such right,
• modify or replace MES Product so as to make it non-infringing to the satisfaction of such third party while retaining their form, fit and functionality.

7.8 Failure To Assume Control - If MES fails to assume full control over the defense of the Customer as set forth in the section above within thirty (30) days upon notification by the Customer, the Customer may conduct the defense and MES shall reimburse the Customer for the costs incurred by it including reasonable attorney’s fees and damages finally awarded against the Customer.

7.9 Assistance by the Customer - The Customer shall provide, upon the written request by MES and at the expense of MES, reasonable assistance to MES to support MES in the settlement of and/or defense against the Infringement Claim. MES agrees to provide such reasonable assistance to the Customer where the Customer undertakes to conduct the defense pursuant the provisions of this Section.

 

8 LIABILITY

No claims for damages may be asserted against MES (including its legal representatives and agents) on any legal grounds whatsoever except in compliance with the following terms:

8.1 The MES is liable for intentional acts and in cases where liability is mandatory by law, including, but not restricted to, cases where product liability law applies, where there is culpably caused injury or damage to health or loss of life, or material damage due to the absence from the services that are guaranteed by MES.

8.2 If none of the foregoing applies, MES is liable as follows:

a. In cases of gross negligence. In such cases, the liability for damage to property and assets shall be limited to the amount of damage that might reasonably be predicted, unless the damage is caused by members of the executive body or managers of MES, or unless an essential contractual duty, which has to be fulfilled in order to reasonably fulfill the contract and which the contractual partner may reasonably expect to be fulfilled (cardinal duty), is violated.

b. In cases of slight negligence, in as much as a cardinal duty is violated. In such cases liability for damage to property and financial damage shall be limited to the damage that might reasonably be expected in such cases.

8.3 In the event of data loss, MES is liable under the conditions stated above only for and up to the cost of recovering the data, and only on the condition that proper data backup has been performed by the Customer.

8.4 No liability is otherwise accepted. This particularly applies to consequential harm caused indirectly by a defect, including loss of profit or non-achievement of savings.

 

9 DURATION OF CONTRACT / TERMINATION

9.1 The concluded contract has the term as individually agreed between the Customer and MES.

9.2 An ordinary termination is excluded. This shall be without prejudice to the right to terminate for good cause.

9.3 Termination shall require the written form.

 

10 CONFIDENTIALITY, DATA PROTECTION

10.1 MES and the Customer undertake to keep business secrets and other information marked confidential secret. Passing on such information to persons who are not involved in concluding, executing or winding up the contractual relationship is permitted - in so far as there is no statutory duty - only with the written consent of the other contractual partner. Unless the contractual parties have agreed other-wise, this obligation shall end three years after the pertinent information becomes known, but not before the contractual relationship between MES and the Customer ends. The contractual partners shall also impose these obligations on their employees and any third parties they might involve.

10.2 In so far as MES has access to the Customer's personal data, this shall only be as a contract data processor, so that such data shall be processed and used by MES only to carry out the contract and in compliance with the statutory data protection regulations. The Customer shall draw MES's attention to any requirements such as compliance with deletion and blocking duties. The Customer shall bear any detrimental consequences of such instructions on the execution of the contract. The contractual partners shall also impose these obligations on their employees and any third parties they might involve.

 

11 FINAL PROVISIONS

11.1 MES Model Examiner®, MES Test Manager®, MES Quality Commander® and MES M-XRAY® are registered trademarks in Germany.

11.2 MES Products and their updates and upgrades may be subject to export and import restrictions; in particular, there may be permit requirements and/or their use or associated technologies may be subject to restrictions abroad. Fulfilment of the contract by MES is subject to the provision that this is not prevented by any impediments arising from national or international foreign trade legislation or by any other regulations.

11.3 Unless expressly agreed otherwise, all declarations by the parties shall always require the written form. This shall also apply to the revoking of this written form requirement. The parties are in agreement that transmission by fax and email satisfy the written form requirement, in so far as receipt of the same can be proven.

11.4 Should individual provisions be invalid, this shall have no effect on the validity of the remaining provisions. A valid or feasible provision shall be agreed instead of the void or infeasible one that comes closest to the commercial intention of the void or infeasible provision.

11.5 The place of fulfilment is where MES has its registered offices. German law with the exclusion of UN international trade law and laws referring to foreign jurisdictions shall apply.

11.6 Legal forum for all legal disputes arising under contracts and for all disputes relating to the creation and effectiveness of those contractual relationships with respect to merchants, a legal person under public law or a special fund under public law is where MES has its registered offices. The above notwithstanding, MES shall be entitled to assert claims under the Customer's registered address.

 

TERMS AND CONDITIONS FOR THE DEVELOPMENT OF SOFTWARE

Last update: December 2008

 

1 SCOPE OF THE CONTRACT

1.1 MES shall develop computer programs/software (in the following: programs) as specified in writing, on the basis of MES’s rules for development and documentation, following the current state of the art. Those requirements finally defined pursuant to § 2.3 (final specification) and § 4.2 shall be binding.

1.2 If MES inserts standard routines into the programs, MES may deliver them in object code without any documentation referring to their source code. At the customer's request, MES shall render maintenance services for these routines. Details shall be agreed on separately.

 

2 PERFORMANCES

2.1 Each party shall name a project manager. Both shall have the authority to make the necessary decisions or shall obtain authorization for them in a timely manner. The project manager of MES shall put decisions in writing. The customer’s project manager shall provide all required information. MES’s project manager shall contact the customer’s project manager as is required to ensure the proper performance of the mutual obligations.

2.2 In concert with the customer, MES shall prepare a detailed time schedule for the performance of the tasks at the beginning of the performance and revise it from time to time if necessary. MES shall regularly inform the customer of the progress of the performances on the basis of this schedule. In addition, the customer may review all documents generated for the performances under the contract and obtain copies, subject to reimbursement of MES’s costs.

2.3 If it is necessary to detail the customer’s requirements listed in the contract or requested pursuant to § 4, MES shall develop a detailed specification with the customer’s assistance and shall submit it to the customer for approval. The customer shall respond in writing within 14 days. The approved detailed specification shall be the basis for the realization of the programs. In the course of the realization of the programs, the detailed specification may be further detailed by MES with the customer’s assistance.

2.4 The services shall be performed at the customer’s location to the extent necessary.

 

3 RIGHTS OF USE

3.1 All rights in the programs arising from the performance of the contract shall accrue to the customer.

3.2 MES shall not be restricted to use the gained know-how and to develop and distribute software in the same application area as the programs developed for the customer, provided that MES complies with § 10.

 

4 CHANGE REQUESTS

4.1 If the customer requests MES to undertake any modification of the agreed on requirements including any addition to it, and if the requested modification is reasonable and acceptable, MES shall agree. If the realization of such a request results in any burden on MES's side, MES is entitled to an appropriate adap-tation of the terms of the contract, in particular to the extension of time for the completion of the programs and/or to additional compensation.

4.2 Modifications and resulting adaptations of the terms of the contract must be confirmed in writing by both parties. If the customer requests a modification orally, MES may request the customer to deliver it in writing, or MES may confirm it in writing. If MES confirms the customer’s request for modification in writing, the wording of MES’s confirmation shall be deemed to express the customer's requirements correctly, unless the customer objects in writing without delay.

4.3 MES shall submit requests for adaptations of the contract without delay. The customer shall notify MES without delay, if the customer disagrees with the requested adaptation.

 

5 DELIVERIES AND ACCEPTANCE

5.1 At the customer’s request, MES shall install the programs, subject to reimbursement of MES´s costs. In this event, the customer shall confirm the installation in writing.

5.2 The customer agrees to test the programs and to confirm their acceptance in writing if the programs meet the final specification. The customer shall test in particular those parts of the programs which will be used only occasionally, for instance at the end of the year.
Unless otherwise agreed, the acceptance test period shall be three (3) weeks.
At the customer’s request, MES shall support the customer in performing an acceptance test. In this event the customer may supply test data or test sequences, however no later than one (1) week before the performance of the acceptance test.

5.3 It shall be deemed that the customer has accepted the programs according to agreement if the customer has not reported a material defect within two (2) weeks after the agreed on acceptance test period.

5.4 If partial deliveries are specified, each partial delivery is subject to acceptance by the customer. The interaction of the components of each partial delivery shall be tested with the last partial delivery.

 

6 CHARGES AND PAYMENTS

6.1 Unless otherwise agreed, all support (including specifically installation, brief or extended training, consultancy) shall be reimbursed on the basis of costs incurred. Working time, traveling expenses and incidental expenses shall be paid in accordance with MES´s price list. MES may submit invoices on a monthly basis.

6.2 In case the value of an order exceeds EUR 25.000, a fixed price shall be paid as follows, unless otherwise agreed on in the contract:

• 30 % with the conclusion of the contract,
• 50 % with delivery,
• 20 % with acceptance.

All support (including specifically installation, brief or extended training, consultancy) shall be reimbursed separately unless it is expressly included in the fixed price.

6.3 Payments shall be due without deductions thirty (30) days after invoicing.

6.4 Duties, taxes and levies including VAT – if applicable – shall be paid by the customer on all prices.

6.5 If payments are delayed, the customer shall not be allowed to use the programs.

 

7 MES'S CLAIMS, MES'S DELAY

7.1 In the event of any circumstances for which MES is not responsible and which adversely affect the performance of the contractual obligations, including strike and lock-out, MES is entitled to an appropriate adaptation of the terms of the contract, in particular to an appropriate extension of the delivery date. If the cause is attributable to the customer and results in additional efforts to MES, MES is also entitled to additional compensation.

7.2 If MES's delay exceeds 30 days, the customer is entitled for every subsequent week to a penalty of 0.5 % of the value of that part of the programs that cannot be used in accordance with the purpose of the contract, but the penalty shall be limited to 5 % of the total contract value.

 

8 CORRECTIONS OF DEFECTS

8.1 If the customer finds, in the course of correct use of the programs, what the customer believes to be a defect in a program, the customer shall provide MES with a written report containing reasonably specific information as to the nature of the defect and the conditions under which it occurs, in writing, if so requested by MES
The customer is only entitled to raise claims, if the customer can reproduce it or demonstrate it by using computer output.
Upon request, the customer shall give all necessary support to MES, and in particular provide a copy of the relevant program being used when the defect appeared. The customer shall provide testing time on the customer's IT-system and install corrections delivered by MES.

8.2 MES shall, without delay and at no cost to the customer, effect subsequent performance (i.e. at MES’s discretion replace the defective program or correct any defects). If a defect substantially restricts the use of the programs, MES shall provide a workaround, if needed, so that the defect is not substantial any longer.

8.3 The obligation to effect subsequent performance is expressly excluded if the customer modifies the programs or manipulates them in any other way, unless the customer proves that the defect did not result from the modification or manipulation.

8.4 If the customer cannot prove that a reported defect has turned out to be a defect, MES shall be entitled to reimbursement of MES’s costs for the investigation of the alleged defect.

 

9 MES'S LIABILITY

9.1 If MES is in delay with the primary or subsequent performance, the customer is entitled to ask for it within an adequate period of time. If MES definitely fails to effect the primary or the subsequent performance, in particular to cure the breach of contract within the notified period, the customer may exercise its statutory rights, claims for damages within the limitations pursuant to § 9.3. MES is entitled to set a period within which the customer must declare whether or not the customer still requests primary or subsequent performance. If the customer does not request primary or subsequent performance timely, the customer cannot claim for it any longer.

9.2 The period of warranty (the limitation period for claims based on defects) shall be 24 months.

9.3 MES – including any person engaged in performing any obligation under this contract – shall be liable for damages under any claim based on normal negligence only if MES breaches a basic obligation of the contract which puts the contract goal at risk (cardinal obligation). In this event, MES’s liability shall be restricted to the higher of the following amounts:

• EUR 100,000.00,
• The contract value,
• The characteristic and foreseeable damages.

The customer is entitled to claim for a higher maximum, but MES may then require a surcharge for the aggravated risk.
The restrictions shall not apply if and to the extent to which damages are covered under MES's business liability insurance and the insurance company has effected payment to MES. MES agrees to maintain the coverage of this insurance as provided at the time of the execution of the contract.
Claims for personal injury shall remain unaffected.

 

10 CONFIDENTIALITY OBLIGATIONS

10.1 MES shall keep the customer's trade and business secrets confidential for an unlimited period of time, as well as all other information obtained by MES under or in connection with this contract designated in writing as confidential by the customer. However, MES shall have no obligation with respect to any information which is (i) already in MES’s possession at the time of the execution of the contract, (ii) independently developed by MES, or (iii) which is publicly known through no wrongful act of MES.

10.2Notwithstanding § 10.1, MES is not obliged to keep confidential any of MES’s ideas, concepts, know-how or techniques related to the development of software.

10.3MES shall obligate its employees to observe the above confidentiality obligations.

10.4MES may include the name the customer and a brief description of the rendered performances in a reference list. All other advertising references to the customer shall be discussed in advance with the customer.

 

11 MISCELLANEOUS

11.1 The contract and its modifications require written form.

11.2 The contract shall conform with and be governed by the laws of the Federal Republic of Germany without regard to its choice of law rules and excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods.

11.3 If the customer is merchant in terms of law exclusive venue shall be MES's main place of business.

 

TERMS AND CONDITIONS FOR CONSULTANCY SERVICES

Last update: December 2008

 

1 CONSULTANCY SERVICES

1.1 MES shall perform consultancy services in accordance with the current state of the art as specified in writing.

1.2 The customer shall support MES where required, in particular provide all required information.

 

2 COOPERATION

2.1 The customer shall name a contact person; MES shall name a customer consultant. Both shall have the authority to make the necessary decisions or shall obtain authorization for them in a timely manner. The customer consultant shall put decisions in writing. The contact person shall provide all required information. The customer consultant shall contact the contact person as is required to ensure the proper performance of the mutual obligations.

2.2 The services shall be performed at the customer's location if necessary, otherwise at MES’ location. In the first case, the customer shall provide MES’s employees with adequate working conditions.

 

3 CHARGES AND PAYMENTS

3.1 Unless otherwise agreed, the customer shall remunerate MES on the basis of costs incurred. Hourly rates, travel expenses and incidental expenses shall be paid in accordance with MES’ price list, unless otherwise agreed. MES may submit invoices on a monthly basis.
Persons engaged by MES shall fill out detailed time sheets which MES shall hand over to the customer if requested. The customer may audit these sheets at any time.
In case of fixed prices, travel and incidental expenses shall be reimbursed separately.

3.2 Payments shall be due within 30 days after invoicing.

3.3 Duties, taxes and levies including VAT – if applicable – shall be paid by the customer on all prices.

 

4 RIGHTS

4.1 All rights in the documents and results arising from the services shall accrue to the customer. MES shall not be restricted to use the gained know-how and to render similar consultancy services for other customers of MES, provided MES complies with § 6.

4.2 If MES provides documents or programs not developed under the contract, the customer may utilize them only within the framework of the work results under the contract and not isolated provided MES has notified the customer of such delivery in advance.

 

5 MES'S LIABILITY

5.1 MES – including any person engaged in performing any obligation under this contract – shall be liable for damages under any claim based on normal negligence only if MES breaches a basic obligation of the contract which puts the contract goal at risk (cardinal obligation). In this event, MES’s liability shall be restricted to the higher of the following amounts:

• EUR 100,000.00,
• The contract value,
• The characteristic and foreseeable damages.

The customer is entitled to claim for a higher maximum, but MES may then require a surcharge for the aggravated risk.
The restrictions shall not apply to the extent the damages are covered under MES’s business liability insurance and the insurance company has effected payment to MES. MES agrees to maintain the coverage of the business liability insurance as provided at the time of the execution of the contract.
Claims for personal injury shall remain unaffected.

5.2 If MES’ delay exceeds thirty (30) days, the customer is entitled, for every further week, to a penalty of 0.5 % of the value of those performances which cannot be used in accordance with the purpose of the contract, but the penalty shall be limited to 5 % of the total contract value.

 

6 CONFIDENTIALITY OBLIGATIONS

6.1 MES shall keep the customer's trade and business secrets confidential for an unlimited period of time, as well as all other information obtained by MES under or in connection with this contract designated in writing as confidential by the customer. However, MES shall have no obligation with respect to any information which is (i) already in MES’ possession at the time of the execution of the contract, (ii) independently developed by MES, or (iii) which is publicly known through no wrongful act of MES.

6.2 Notwithstanding § 6.1, MES is not obliged to keep confidential any of MES’ ideas, concepts, know-how or techniques related to the development of software.

6.3 MES shall obligate its employees to observe the above confidentiality obligations.

6.4 MES may include the name the customer and a brief description of the rendered performances in a reference list. All other advertising references to the customer shall be discussed in advance with the customer.

 

7 MISCELLANEOUS

7.1 The contract and its modifications require written form.

7.2 The contract shall conform with and be governed by the laws of the Federal Republic of Germany without regard to its choice of law rules and excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Exclusive venue shall be MES's main place of business.

 

MES AGB - Training Classes in Germany

Last amended: December 2018

 

COST AND CONDITIONS OF PARTICIPATION

The number of training class participants is limited to a maximum of 15 for better individual supervision. Registrations will be processed on a first-come, first-serve basis. Registration should be completed 14 days prior to the training class. The minimum number of participants required for the training class to run is 2 persons. Written confirmation will be sent to participants. The pricing for a 1-day training class is € 950 plus VAT (where applicable). The 2-day training classes cost € 1,350 plus VAT (where applicable). During the class “Model-based Development of Embedded Software in Compliance with ISO 26262 – Challenges and Effective Solutions”, participants have the option of attaining the SAE Certificate of Competency by passing an evaluation exercise. The costs for the SAE Certificate of Competency is € 400 plus VAT (where applicable). We offer an early bird discount of 10% for registrations received 35 days prior to the event. An additional 25% discount on the booking is available for companies registering more than one participant or more than one training class at the same time. The training class fee is payable upon receipt of invoice prior to the training classes. The price for the training class includes training materials, refreshments, and lunch.

 

CANCELLATION POLICY

Participation may be cancelled free of charge up to 21 days prior to the training class. For cancellations up to 7 days prior to the relevant training class, the cancellation fee comprises 50% of the training fee plus VAT. 100% of the participation fee will be charged for all cancellations after this date or non-appearance on the day. You may find a replacement participant if desired. This change is free of charge. If a training class cannot take place as scheduled, you will receive a full refund of all fees that have already been paid. The agendas described in the MES Training Program brochure may vary and may be adapted in the class.

For the MES Summer School, other terms and conditions apply.

 

MES SUMMER SCHOOL
COSTS AND CONDITIONS OF PARTICIPATION

The number of training class participants is limited to a maximum of 15 for better individual supervision. Registrations will be processed on a first-come, first-serve basis. Registration should be completed 28 days prior to the training class. The minimum number of participants required for the MES Summer School to run is 5 persons. The costs for the MES Summer School comprise € 2,950 plus VAT (where applicable). An academic discount is available for students and university faculty members. In this case, the fee amounts to € 980 plus VAT (where applicable) for the whole event. During the MES Summer School, participants have the option of attaining the SAE Certificate of Competency by passing an evaluation exercise. The costs for the SAE Certificate of Competency is € 400 plus VAT (where applicable). We offer an early bird discount of 10% for registrations received before March 31, 2019. An additional 25% discount is available for companies registering more than one participant for the same or for a second training class in 2019. The MES Summer School fee is payable upon receipt of invoice prior to the training class. The MES Summer School fee includes training materials, accommodation, breakfast, lunch, and refreshments, as well as participation in a leisure program in Berlin organized by MES. Dinner will be provided on the dates stated in the leisure program (Monday, June 24, 2019 and Thursday, June 27, 2019).

 

CANCELLATION POLICY

Participation may be cancelled free of charge before May 10, 2019. A cancellation fee of 50% of the training fee plus VAT will be charged for cancellations before June 7, 2019. 100% of the participation fee will be charged for all cancellations after this date or non-appearance on the day. You may find a replacement participant if desired. This change is free of charge. If the MES Summer School cannot take place as scheduled due to circumstances beyond our control, you will receive a full refund of all fees that have already been paid.