IMPROVEit END-USER LICENSE AGREEMENT

PLEASE READ THESE LICENSE TERMS CAREFULLY. BY PLACING ANY ORDER AND USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. CERTAIN TERMS SHALL BE APPROVED SPECIFICALLY, READ THEM CAREFFULLY.

 

This is a legal agreement between You and XC Engineering S.r.l. (“Licensor”, “us” or “we”) for the use of the Software and any Documentation (as defined herein below). We license the use of the Software to You on the basis of this Agreement. We do not sell the Software or the Documentation to You. We remain the owners of the Software and the Documentation at all times.

 

1. Definitions

The following definitions apply:

• “Agreement” means this End-User License Agreement.
• “Authorized User(s)” means the individual inside your network authorized by You to use the Software and the Documentation. Authorized User(s) may include Contractors and your employees, with the exclusion of any employees belonging to your affiliates, subsidiaries or group companies (except where acting as Contractors), unless differently provided in any Order.
• “Contractor(s)” means any external contractor (including, without limitation, outsourcers or external consultants) you authorize to use the Software under your License, provided they are acting on Your behalf to exercise license rights granted in this Agreement and further provided that You are responsible for their compliance with this Agreement in such use, and subject to any limit set out in the relevant Order. You must have a written agreement with Your Contractor(s) that strictly limits their right to use the Software and that otherwise protects our intellectual property rights to the same extent as this Agreement.
• “Distributor” means third party business entities that are authorized by Licensor to distribute and support the Software. Any service obligations of Licensor defined under this Agreement shall, if Your license was acquired through a Distributor, be the responsibility of that Distributor.
• “Documentation” means those materials prepared by Licensor to assist You in the use of the Software, including, but not limited to, user manuals, tutorials, training videos, and release or installation notes, including electronic versions thereof.
• “IMPROVEit Product” means optimization and regression analysis software programs sold and distributed individually as IMPROVEit, and any other similar product which may become available from Licensor under the same family name.
• “Interfacing Node(s)” means the various nodes included in the Software’s library which allow the Software to communicate and interact with third-party programs, as made available by us from time to time, and selected by You in the relevant Order.
• “License” means the license on the Software granted to You under this Agreement and any Order.
• “License Fee” means the fees agreed in any Order for any License.
• “License Server” means the workstation or other physical server designated by You.
• “License Term” means the duration of the License indicated in the relevant Order or otherwise agreed between You and us under this Agreement.
• “Maintenance Service” means the maintenance services, including updates to the Software and technical support services, specified in any Order and regulated under Clause 5.
• “Order” means any order to purchase one or more License or Maintenance Services from us (or through our Distributors), wherein the terms upon which You acquire the right to use the specific IMPROVEit Product that is licensed to You, including, without limitation, the number of allowed concurrent solver instance tokens and/or allowed core/CPU tokens, price, license duration, and any rights to technical support and upgrades, are set forth.
• “Registered User” means a person appointed by You as Your representative and liaison with Licensor for purposes of coordinating Your receipt of technical support and modifications to the Software, including new version releases and interim updates and corrections.
• “You” and “Your” refers to the legal entity which has acquired a License, as well as its principals and duly-authorized officers, employees, and agents.
• “Software” means such computer program from among the IMPROVEit Products that is licensed to You hereunder, the Documentation, and any backups or other copies.

 

2. Grant and scope of license  
   • In consideration of payment by You of the License Fee and You agreeing to abide by the terms of this Agreement, we license You to use the Software on a non-exclusive and non-transferable basis, throughout the License Term, subject to the commercial terms specified in any Order, including the Interfacing Nodes selected, and subject to the terms and conditions set forth herein.
   • You may:
     • download, install on the License Server and use the Software for Your internal business purposes only, in a network license mode, for use by an unlimited number of Authorized Users or as differently provided in the relevant Order;
     • provided You comply with the provisions in Clause 2, make up to 1 copy of the Software for back-up purposes only;
     • if Maintenance Services are purchased, receive and use any free supplementary software code or update of the Software incorporating “patches” and corrections of errors as may be provided by us from time to time; and
     • use any Documentation in support of the use permitted under this Clause 2.2 and make up to 3 copies of the Documentation as are reasonably necessary for its lawful and internal use, provided that each copy includes all of the copyright or related notices of the original.

 

3. Restrictions
   • We only supply the Software and the Documentation for internal use by Your business, and You agree not to use the Software or the Documentation for any re-sale purposes.
   • Except as expressly set out in this Agreement or as permitted by any local law, You undertake:
     • not to copy the Software or the Documentation except where such copying is incidental to normal use of the Software, or where it is necessary for the purpose of back-up or operational security;
     • not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or the Documentation;
     • not to make alterations to, or modifications of, the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
     • not to publish the Software for others to copy;
     • not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such thing except to the extent such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by You during such activities:
       • is used only for the purpose of achieving inter-operability of the Software with another software program; and
       • is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
       • is not used to create any software which is substantially similar to the Software;
     • to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
     • to supervise and control use of the Software and ensure that the Software is used by Your employees in accordance with the terms of this License;
     • to include our copyright notice on all entire and partial copies You make of the Software on any medium, and not to remove or modify any copyright notices or other proprietary markings contained within or generated by the Software;
     • not to copy and use any image from the Software (including screen captures) in any document intended for display to or consumption by persons or entities that are not the licensed user of the Software without the prior written consent of Licensor;
     • not to provide or otherwise make available the Software in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person other than Your employees without prior written consent from us;
     • not to use the Software in any way that is against the law or contrary to the terms of this Agreement; 
     • to comply with all applicable technology control or export laws and regulations.

 

4. License Management
   • In connection with the License granted herein, Licensor will issue one or more electronic license files. Such license file(s) will enable the running of the Software’s components and control the number of concurrent instances of the Software’s solver and modules.
   • You agree not to take any steps to avoid or defeat the purpose of Licensor’s licensing measures. Use of the Software without a license file or in excess of the number of authorized concurrent instances is expressly prohibited. Upon request, You agree to submit log files to Licensor for audit/verification purposes.
   • If arrangements for Maintenance Service have been made, You may request one (1) no-cost change of license file to accommodate a desired change of License Server during the agreed period of Maintenance Service. This will terminate the previous license file which is replaced by the new one and will no longer be valid, and You undertake (i) not to access or use the Software in connection with prior license files; (ii) to immediately destroy and erase such prior license files; and (iii) to provide us with certification in writing that You have complied with Your obligations pursuant to this Clause 3, upon our request. Any additional changes during such Maintenance Service period, and any requests for a change of License Server during a period when no Maintenance Service has been acquired, shall be provided by Licensor, at its discretion, upon payment by You of an administrative fee.

 

5. Maintenance Service
   • If arrangements for Maintenance Service have been made, only the Registered User or persons who have completed an IMPROVEit training course will be entitled to contact Licensor or its authorized distributor to seek technical support. Technical support will be provided via telephone, e-mail, web-based meetings, fax, and/or mail during the normal business hours of Licensor or its authorized distributor, as applicable.
   • In order to enable Licensor to provide timely and beneficial technical support for the Software, You agree to install updates, fixes, circumventions, and corrective code to the Software in a reasonable time after receipt thereof and to be responsible for the installation and administration of the Software on platforms officially supported by Licensor. Licensor shall have no obligation to provide technical support (i) for other than the two most recent commercially-available releases of the Software; (ii) if the Software has been altered, damaged or modified by You or on Your behalf; or (iii) for any problems caused by Your negligence or misuse of the Software.
   • In the event that Maintenance Service is discontinued by You for any reason, Licensor shall have no obligation to permit reinstatement of Maintenance Service. Licensor’s election to permit reinstatement of Maintenance Service shall be subject to its then-current reinstatement policy as communicated from time to time.

 

6. Intellectual Property Rights and Confidential Information
   • You acknowledge that all intellectual property rights in the Software and the Documentation anywhere in the world belong to us, that rights in the Software are licensed (not sold) to You, and that You have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this License.
   • The Software is licensed, not sold. No title to or ownership of the Software or any part thereof is hereby transferred to You, and all rights not specifically granted to You shall remain with Licensor, as appropriate. You acknowledge that, by virtue of this Agreement, You acquire only the right to use the Software pursuant to the terms of this Agreement.
   • You acknowledge that You have no right to have access to the Software in source code form.
   • Besides the copyrights, the Software contains trade secrets and proprietary information of Licensor, and You agree not to act in contravention of any of Licensor’s intellectual property rights. You acknowledge that Licensor own the aforementioned rights and have the following exclusive rights with regard to the applicable portions of the Software: to reproduce it; to adapt, transform or rearrange it; to prepare derivative works from it; and to control its distribution.
   • You acknowledge that the Software embodies confidential and proprietary information owned by Licensor and You agree to take all necessary action to protect such confidential and proprietary information to avoid the disclosure of the contents of the Software to any other person, firm, or corporation, and to treat the Software with the same degree of care that You use to protect Your own confidential information. You agree to acknowledge expressly the use of the Software in any written or verbal presentation, oral or written, where results obtained using the Software are discussed.

 

7. Termination
   • This Agreement shall terminate upon expiration of the License Term and upon occurrence of any of the following events: (i) any breach of Clause 3, 4, and 6 in which event the termination shall be deemed to have occurred with immediate effects; (ii) Your failure to observe or perform any other material covenants, terms, and conditions of this Agreement where such non-performance is not fully remedied by You within thirty (30) days after written notice from Licensor; or (iii) the filing of a petition for Your bankruptcy, whether voluntary or involuntary, or an assignment of Your assets made for the benefit of creditors, or the appointment of a trustee or receiver to take charge of Your business for any reason, or Your becoming insolvent or voluntarily or involuntarily being dissolved.
   • Upon termination of the Agreement for any reason:
     • all rights granted to You under this License shall cease;
     • You must immediately cease all activities authorised by this License; and
     • You must immediately and permanently delete or remove the Software from all computer equipment in Your possession, and immediately destroy or return to us (at our option) all copies of the Software and of any Documentation then in Your possession, custody or control and, in the case of destruction, certify to us that You have done so.
   • Licensor is entitled to reimbursement from You for any expenses, legal fees, and/or court costs incurred in the enforcement of its rights hereunder or in the collection of damages.

 

8. Limited Warranty
   • We warrant that, for a period of 1 year from the date of Your installation of the Software (Warranty Period):
     • the Software will, when properly used and on an operating system for which it was designed, perform substantially in accordance with the functions described in the Documentation; and
     • the Documentation correctly describe the operation of the Software in all material respects.
   • If, within the Warranty Period, You notify us in writing of any defect or fault in the Software as a result of which it fails to perform substantially in accordance with the Documentation, we will, at our sole option, either repair or replace the Software, provided that You make available all the information that may be necessary to help us to remedy the defect or fault, including sufficient information to enable us to recreate the defect or fault.
   • The warranty does not apply:
     • if the defect or fault in the Software results from You having altered or modified the Software; and
     • if the defect or fault in the Software results from You having used the Software in breach of the terms of this License.
   • We warrant that we have the right to grant to You a license and warrant that the Software does not infringe third party intellectual property rights. Licensor shall indemnify and hold You harmless from and against any claim of infringement of a patent or copyright based upon the Software, provided You give Licensor prompt notice (within 5 days from receipt of any complaint) of and the opportunity to defend any such claim. Licensor shall have the right to settle such claim or, at Licensor’s option, provide You:

(i) substitute functionally equivalent software; or

(ii) a refund of a pro rata portion of the License Fee paid for the Software.

• Licensor will not be responsible for any breach of warranty caused by modifications (or attempted modifications) to the Software made by or on behalf of You, whether authorized or unauthorized, or any combination of the Software with any other software by You or on Your behalf.
• Licensor reserves the right, without limitation, and without obtaining prior approval from or notice to You, to make changes in and to the Software.

9. The Software supports a feature known as remote solving, which allows You to configure one or more machines as servers that will establish connections with the client, e. the Software. When configuring a server, the administrator of the server can register one or more of Your users to submit jobs to the server. During the registration process, a password will be provided by the user. A cryptographic hash will then be generated from the password provided and saved to a configuration file under the app folder of Your user profile. The original password is discarded, and the hash is used for validating jobs for the given user. None of the data transferred between the Software and the server is encrypted.
   • The importation or use of encrypted protocols may contravene the laws of the jurisdiction in which You reside, and You acknowledge and accept that (i) it is Your responsibility to insure that You are in compliance with Your local laws and (ii) Licensor is not responsible to insure Your compliance with local laws or to support You in the use of the encryption described above, if it is against the law in Your jurisdiction. To facilitate compliance with local laws, You can forego configuring the Software to use its remote solving feature.

 

 

10. Limitation of liability
    • You acknowledge that the Software has not been developed to meet Your individual requirements, unless differently agreed in any Order, including any particular cybersecurity requirements You might be subject to under law or otherwise, and that it is therefore Your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet Your requirements.
    • We shall not in any circumstances whatever be liable to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the License for:
      • loss of profits, sales, business, or revenue;
      • business interruption;
      • loss of anticipated savings;
      • loss or corruption of data or information;
      • loss of business opportunity, goodwill or reputation;

where any of the losses set out in Clauses 9.2.1 to 9.2.5 are direct or indirect; or

• any special, indirect or consequential loss, damage, charges or expenses.

• Other than the losses set out in Clause 2 (for which we are not liable), our maximum aggregate liability under or in connection with this License whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to 100% of the License Fee in the calendar year in which any such liability took place. This maximum limit does not apply to Clause 9.3.
• Nothing in this License shall limit or exclude our liability for:
  • death or personal injury resulting from our negligence.
  • fraud or fraudulent misrepresentation or gross negligence.
  • any other liability that cannot be excluded or limited by Italian law.
• This License sets out the full extent of our obligations and liabilities in respect of the supply of the Software and Documentation. Except as expressly stated in this License, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation which might otherwise be implied into, or incorporated in, this License whether by statute, uses and customs or otherwise, is excluded to the fullest extent permitted by law.

 

11. Force majeure and events outside our control  
    • We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this License that is caused by an Event Outside Our Control. An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation failure of public or private telecommunications networks, pandemic events or other force majeure events.
    • If an Event Outside Our Control takes place that affects the performance of our obligations under this License:
      • our obligations under this License will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
      • we will use our reasonable endeavours to find a solution by which our obligations under this License may be performed despite the Event Outside Our Control.

 

12. Controls and audit
    • Licensor takes certain steps to attempt to minimize unauthorized use and piracy of the Software. In this context, the Software may include a security mechanism that can detect the installation or use of illegal copies of the Software, and collect and transmit data about those illegal copies. By using the Software, You consent to such detection and collection of data, as well as its transmission and use if an illegal copy is detected.
    • Licensor shall have the right, upon reasonable notice to You, to audit Your use of the Software no more than once each calendar year to assure compliance with the terms of the agreement between XC Engineering Srl and You. If an audit reveals that You have underpaid license fees to Licensor as a result of misuse or overuse of solver tokens, You shall compensate Licensor based upon Licensor’s price list in effect at the time the audit is completed. If the underpaid fees exceed five percent (5%) of the License Fees previously paid by You, then You shall also pay (i) Licensor’s reasonable cost of conducting the audit and (ii) a contractual penalty in the amount of twice the underpaid license fees revealed by the audit pursuant to this Clause 2.

 

13. How we may use Your personal information  
    • You acknowledge and agree that You (and any third party acting on Your behalf) may be required to provide, and Licensor may need to obtain from You, certain information and data with respect to You (including, without limitation, certain limited personal information) and Your business in connection with ordering, registration, activation, updating, validating entitlement to, auditing, monitoring installation of and access to the Software.
    • Under data protection legislation, we are required to provide You with certain information about who we are, how we process the personal data of those individuals who use the Software and the Documentation and for what purposes and those individuals’ rights in relation to their personal data and how to exercise them. This information is provided in [LINK TO PRIVACY NOTICE] and it is important that You read that information and share it with those individuals who use the Software and the Documentation.

 

14. Other important terms
    • A party’s exercise of, or failure to exercise, any right, remedy, or privilege under this Agreement will not constitute a waiver of any rights of that party under this Agreement.
    • This License and any document expressly referred to in it, including any Order, constitutes the entire agreement between You and us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between You and us, whether written or oral, relating to its subject matter. You agree that You shall have no claim or remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this License or any document expressly referred to in it, including any Order.
    • A judicial determination that any provision of this Agreement is invalid, illegal, or unenforceable shall not affect the enforceability of any other provision, which will remain in full force and effect.
    • The provision of Clauses 6, 7, 9, and 11 will survive termination of the this Agreement or any License for the Software.
    • We may transfer our rights and obligations under this License to another organisation, but this will not affect Your rights or our obligations under this License.
    • You may only transfer Your rights or Your obligations under this License to another person if we agree in writing.
    • We may apply changes to this Agreement and will notify You in advance in that event.

 

15. Applicable law and exclusive jurisdiction
    • This Agreement, its subject matter and its formation (and any non-contractual disputes or claims) are governed by Italian law, without regard to conflict of law principles, and shall not be governed by or otherwise subject to the United Nations Convention for the International Sale of Goods.
    • Any civil suit or proceeding relating to this agreement shall be brought only in Italy, to the exclusive jurisdiction of the Court of Milan, and each of the Parties consent to the personal jurisdiction and venue of such courts. Judgment upon any award made in such proceeding may be entered and enforced in any court of competent jurisdiction.
    • In the event of any conflict between the terms of this Agreement and the applicable Order, the terms of the Order shall prevail. If there are any terms in either agreement which are different from, but not inconsistent or in conflict with the other agreement, then such terms shall bind the parties.

 

16. Third party libraries and licenses.
    • The Software is compiled and distributed imbedding third party programming libraries which have their own license agreements. All third party libraries and licenses used in the Software are listed here:

 

1. Extended WPF Toolkit:

© 2018 Microsoft

[Microsoft Public License (Ms-PL)]

 

1. HelixToolkit:

Copyright (c) 2018, Helix Toolkit contributors

[MIT License]

 

• RenchiSSH.Net:

Copyright (c) 2020, RenchiSSH contributors

[MIT License]

 

1. NetworkUI:                                                                         Copyright (c) 2019, Code Project contributors

[MIT License]

 

1. Protobuf:

Copyright 2014, Google Inc. All rights reserved.

[BSD License]

 

17. Specific approval of certain terms of this Agreement

With this Agreement, You specifically approve the following terms: 8 (Limited Warranty), 9 (Limitation of Liability), 11 (Controls and Audit), 13 (Other important terms), and  14 (Applicable law and exclusive jurisdiction)