Software License and Maintenance Agreement

THIS AGREEMENT including its Appendices is made by and between acontis technologies GmbH (hereinafter referred to as "acontis") and Licensee (hereinafter referred to as "Customer"), the parties hereto hereinafter collectively referred to as the “Parties”. This agreement is hereinafter referred to as the "Agreement".
Preamble
      WHEREAS, The EtherCAT Technology, the trade name and logo "EtherCAT" are the intellectual property of, and protected by Beckhoff Automation GmbH.
      WHEREAS, acontis has developed and distributes the EtherCAT Master Stack Software EC-Master.
      WHEREAS, acontis has developed and distributes the EtherCAT Slave Test Application Software EC-STA.
      WHEREAS, acontis has developed and distributes the EtherCAT Network Simulation Software EC-Simulator.
      WHEREAS, acontis has developed and distributes the EtherCAT Network Monitoring Software EC-Monitor.
       WHEREAS, acontis has developed and distributes the Windows EtherCAT real-time platforms EC-Win, Bundle CeWin with EC-Master, Bundle RTOS32Win with EC-Master.
      WHEREAS, acontis has developed and distributes the Windows real-time platforms LxWin and VxWin.
      WHEREAS, Customer wishes to obtain certain use and maintenance rights with respect to such products.
      WHEREAS, the Parties wish to cooperate under this Agreement in a mutual business relationship characterised by mutual trust and good faith in order to achieve the purposes of this Agreement.
NOW, THEREFORE, in consideration of the premises, and other good and valuable consideration received and to be received, acontis and Customer agree as follows:
     
Definitions
“Software” means one or multiple software products (excluding related example software that show how to use the Software) which acontis has developed and which is documented in the related software documentation.

“Example Application” means applications shipped in binary or in source code format that show how to use the Software.

“Software Version” means a specific standard version of the Software which is officially released by acontis and identified by a Software Version Number.

“Software Version Number” is a number identifies a specific Software Version by multiple separated digits in the version number. The first digit defines the major and the second digit defines the minor version number. The major and the minor version number as well as additional digits uniquely identify different Software Versions.

“Compatible Software Version” means Software Versions (e.g. service packs and/or software builds) which are identified by the same major and minor version number within the Software Version Number of such Software Versions.

“SDK” is that portion of a Software that allows a user to develop certain components of that user’s software and/or hardware system, and a “Runtime” is that portion of the Software that permits the Software to run in a stand-alone configuration and that allows a user to deploy a software and/or hardware system that was developed using the SDK. By way of example and to be slightly more specific, an EtherCAT bus that might execute to control an entire CNC machine and the configuration do drive that machine is developed with the SDK. 

“Documentation” means all Documentation related to the Software in printed or electronic form or available online.

“Product” or “Single Product” means a uniquely identified article (product) which a) can be used standalone and b) which is not part of another Product and which has specific functions and features. By way of example and to be slightly more specific, an example of a Product is a Humanoid Robot that consists of a) the mechanics and b) a Robot Controller. If in the foregoing example Customer is selling the Robot Controller as a separate product to End Customers not used in conjunction with the Humanoid Robot Product of Customer, then such Robot Controller would be another Product besides the Humanoid Robot.

“Product Line” means line of Products where all the Products have the same or similar function and same or similar user interface. By way of example and to be slightly more specific, an example of a Product Line is a set of microwave-ovens where different units (variants) have different features (e.g. level of max. microwave power). Another example for two separate Product Lines would be a set of Humanoid Robots (Product Line 1) and a set of Robot Controllers (Product Line 2).

“Target System” means the CPU board where the Software is executed. A Single Product of the Customer contains one or multiple such Target Systems.

“System Software” means the software that manages computer hardware and software resources and provides the services for running the Software on the computer hardware (the Operating System) as well as the software that is used to generate object code from the source code of the Software and to debug the Software when it is executed on the computer hardware (the Development Environment). By way of example and to be slightly more specific, an Operating System including, without limitation,  Linux and a Development Environment, including, without limitation, Eclipse and the GNU tools.

I. Delivery of Software 
§ 1	Subject Matter
1.1	acontis shall deliver to Customer as agreed in Appendix 1 the Software in source code or in binary format together with the related  Documentation, in the following altogether referred to as “Software”. In return, Customer shall pay the prices as agreed in Appendix 1 to this Agreement.
	The Software shall operate as described in the relevant product description and more detailed in the relevant Documentation, which may describe functions which have not been ordered by Customer.
1.2	acontis shall provide the Software to Customer on data storage media or via the Internet or e-mail. Acontis shall provide the Documentation either as a printed copy or in electronic format.
1.3	acontis refers to the fact that it is not possible, according to the latest developments in technique, to develop the Software to the effect that the Software works free of defects in any combinations and/or applications. Thus, the Software shall only be usable with regard to the scope of the Agreement as pointed out in § 1.1.
1.4	acontis shall not be held liable in case the Software cannot be used for the solution of any task defined by Customer, and acontis shall not be held liable, in case the Software cannot be used on any hardware Customer uses. Acontis will be liable in case the Software cannot be used for reasonable tasks defined by Customer.
§ 2	Right of Use
2.1	In the case acontis provides the Customer with the source code of the Software this source code is provided only in order to bring Customer in a position to examine such source code. Customer may in particular, but without limitation, not modify or extend the source code of the Software in any way.
	Thus, acontis hereby only grants Customer the nonexclusive, nontransferable and perpetual right to use the Software for the sole purpose to (i) generate object code from the source code of the Software and (ii) integrate such object code and (iii) integrate object code of the Software provided by acontis in Products of Customer as specified in § 2.2.
2.2	Object code of the Software provided by acontis, object code generated from the source code of the Software and object code generated from the source code of the Example Application – but not the SDK and source code itself – by Customer may be copied and distributed by Customer to Customer´s customer as an integrated part of one Single Product or Product Line of Customer as defined in Appendix 1. If not specified within this Agreement, the Product Line, the CPU Architecture and the Operating System of the EtherCAT master stack have to be specified outside of this Agreement, e.g. in a separate Amendment or in the Purchase Order of Customer.
	Customer is not entitled to pass such object code to any third party unless such object code is integrated in Customer’s Products as described in the foregoing sentence. In any case such object code can be used by subcontractors assigned by the Customer for the purpose of this agreement.
2.3	Once the Customer creates a Product that includes the Software as an integrated part and Customer wish to ship it to others, or use it internally other than for software development purpose, Customer will need a runtime license. The runtime license grants Customer a non-exclusive, personal and non-transferable limited license to: 
(a) Reproduce, as an integral part of a Target System with a single EtherCAT Network, one copy of the Software for each Runtime License that Customer has purchased from acontis or its local authorized distributor for the purpose of manufacturing Target Systems. Target Systems with multiple EtherCAT Networks require a separate runtime license for each EtherCAT network.
(b) Distribute copies of the Software made under section 2.3(a) to Customer´s customer as part of and only for use in association with corresponding Target, both: (1) directly; and (2) indirectly by authorizing third parties to resell Target Systems and associated Runtime Licenses (“Distributors”) provided that Customer shall at all times remain responsible to acontis for the full performance of any obligations, and compliance with any restrictions, required by this Agreement.
Customer must provide (and require its Distributors to provide) appropriate Runtime License Stickers to authorized Customer´s customer  of its Target System. Customer is obliged to affix at least one sticker (i.e. one sticker per licensed EtherCAT Network) to each Target System created pursuant to this Agreement and require that these stickers not be removed by Distributors. Each Runtime License Sticker authenticates a copy of the Software as having been created under this Agreement and authorizes use of that copy in the Target System on one computer in conjunction with one single EtherCAT Network. A separate Runtime License Sticker is required for each EtherCAT Network on each Target System. 
2.4	In the case acontis provides the Customer with the source code of the Example Application this source code is provided in order to bring Customer in a position to understand the usage of the Software and to use such source code. Customer may modify or extend the source code of the Example Application in any way.
	Thus, acontis hereby grants Customer the nonexclusive, nontransferable and perpetual right to use the Example Application for the sole purpose to (i) generate object code from the source code of the Example Application and (ii) integrate such object code and (iii) integrate object code of the Example Application provided by acontis in Products of Customer as specified in §2.2.
2.5	In the case acontis provides the EC-STA Software to Customer, the right of use for such EC-STA Software as specified in §2.1 to §2.4 is restricted to such Products of Customer that can be used for EtherCAT Slave Device testing only or that can be used to demonstrate EtherCAT Slave Device functionality only. 
§ 3	Performances
3.1	It shall be the responsibility of Customer to install the Software and to bring the Software into operation. To this end, Customer shall inspect the Software under Customer’s conditions of use before Customer uses the Software productively or integrates the software into its Products. acontis is prepared to assist Customer in this respect upon request in return for compensation based on expense. 
3.2	After delivery, Customer shall examine the Software (including any parts of the Software designed only for occasional use) for defects within a reasonable time.
3.3	acontis shall appoint a customer adviser and Customer a contact person. Customer adviser and contact person shall either make decisions or bring about decisions without delay. Customer adviser shall record decisions in writing. The contact person shall be available to acontis to provide all necessary information. acontis shall be obliged to involve such contact person if necessary for the execution of the agreement. 
§ 4	Customer's Obligations Regarding Software Protection
4.1	Customer acknowledges that the Software and its source code, including the Documentation and additional documents, even in future Software Versions, are copyright-protected and constitute business and trade secrets proprietary to acontis. 
4.2	Customer shall not be entitled to reveal any parts of the Software in source code format to any third party (including subcontractors); in particular Customer shall not be entitled to give any third party access to the source code of the Software. This obligation shall be valid for modified, extended or integrated Software Versions as well. 
4.3	Customer shall take all necessary steps to avoid disclosure of the Software in source code and the Documentation to any third party (including subcontractors) without acontis’s permission. This obligation is permanent. However, Customer shall have no obligation with respect to any information which is already in its possession, is independently developed, or becomes publicly known through no wrongful act of Customer. 
	In each case Customer is in breach of the stipulations under this § 4.3 and – as a result of such breach – any third party has obtained access to the source code of the Software, Customer shall be liable to acontis for the damage. The amount of the damage shall be discussed and agreed upon between the Parties.  If an agreement cannot be made, a German court, selected by acontis, shall then define the amount of the damage and the Customer shall be liable for such damage and compensate acontis accordingly. All cost to determine the amount of the damage in respect to such breach shall be taken over by the Customer. Customer shall be obliged to manage Software under this § 4.4
4.4	Customer shall ensure that the Software and its source code cannot be misused. Customer shall only grant access to the source code to such employees that have coercively to work on the source code.
4.5	Customer may only use the Documentation for internal purposes and only copy it to the extent admissible with regard to Customer’s right of use. Customer shall not translate, modify or enhance the Documentation or develop any works based on the Documentation. 
4.6	Notwithstanding the foregoing provisions of § 4, Customer shall be entitled to grant its subcontractors, at Customer’s place of business, access to the source code temporarily, so that subcontractors are in the position to work on the source code to the extent Customer itself is entitled to work on the source code according to this Agreement. Customer shall ensure that
(a)	Any relevant subcontractor is, towards Customer, bound by the same obligations as Customer is towards acontis under § 2 and/or § 4. Customer is responsible towards acontis that any subcontractor adheres to any such obligation. Furthermore, any breach of any of such obligation by any subcontractor is considered as a breach by Customer itself; and
(b)	Any relevant subcontractor will, upon the end of the relevant assignment, immediately (i) return the Software to Customer and (ii) delete any copies of the Software.
II.	Maintenance and Support for the Software
§ 5	Subject Matter
5.1	As far as maintenance and support are agreed on between the Parties according to Appendix 1, maintenance and support services of acontis shall include (i) the delivery of further developed Software Versions of the Software and/or (ii) the remedy of defects as well as telephone and email support during the usual business hours, in each case in return for a lump-sum compensation.
	The first level support will be provided by the distribution partner. The second level support will be provided by acontis.
	Support shall be performed starting with the delivery of the Software. 
5.2	All other performances shall be compensated separately, in particular the transfer of Customer specific modifications to further developed Software Versions, and the adaptation of Customer specific enhancements to further developed Software Versions.
5.3	The maintenance and support agreement shall run for an indefinite period of time. It may be terminated by Customer or by acontis to the end of a contract year, in writing, giving three (3) months prior written notice.
	However, acontis may not terminate until the end of the third (3rd) support year, but shall be entitled to termination with the option of alterations to the agreement even earlier on objective grounds, particularly in the event support for system software required by the Software or other software needed for the operation of the Software is limited by the supplier thereof.
5.4	Customer shall name one (1) technically qualified employee as contact person for support purposes (such person is hereinafter referred to as the “Support Contact”) as well as one (1) further technically qualified employee as backup for the Support Contact. In case the Support Contact or its backup person is not available for a period longer than four (4) weeks, Customer shall appoint another technically qualified employee as Support Contact or backup person, respectively.
5.5	Any support inquiries of Customer shall only be addressed by the Support Contact or a designated backup person. Any such inquiry shall contain the relevant acontis license number and the names and version numbers of other products used in connection with acontis’ products (e.g. operating systems, compilers, etc.).
§ 6	Correction of Defects
6.1	Defects are defined as deviations from the features the Software shall have in accordance with § 1.1 or which the Software must have for customary use.
6.2	The duty to remove defects as a specified performance and to provide telephone support shall relate to the current and the preceding Software Version of the Software. acontis’s obligation to remove defects of the preceding Software Version shall end six (6) months after the release of the latest Software Version. However, acontis’s obligation to remove defects of preceding Software Versions shall continue to exist as long as the acceptance of a newer Software Version is unreasonable to Customer, provided acontis is capable of rendering such performances. In the foregoing case, acontis is entitled to claim for reimbursement of additional costs and expenses, including costs and expenses accruing for maintenance of the required support and maintenance environment.
6.3	§ 12 shall apply accordingly for the execution of defect removal as a specified performance. 
§ 7	Further Development of the Software under Maintenance
7.1	On Customer’s request, acontis shall deliver further developed Software Versions of the Software including associated Documentation to Customer as set forth in § 1.2, after the release of such Software Version by acontis. The foregoing shall not apply to the extent acontis offers enhancements separately, i.e. as separate software in acontis’s price list. 
	Customer shall test any new Software Version before Customer uses it.
7.2	In the event the manufacturer of the system software necessary for use of the Software for which acontis performs maintenance and support releases a new version of the system software under a maintenance agreement with acontis, acontis shall examine after the availability thereof whether such version works properly together with the Software under maintenance with Customer. If that is the case, acontis shall release such Software Version. Otherwise, acontis shall adapt the Software to the further developed version of the system software within a reasonable period. The reasonable period shall begin upon the release and availability thereof for acontis.
7.3	For system software the manufacturers of which do not offer new versions within the framework of maintenance and support performances, instead offering new generations for sale from time to time, the following shall apply: In the event the manufacturer offers improvements (e.g. service packs), acontis shall act in accordance with § 7.2. 
	In the event the manufacturer offers a new generation, acontis shall evaluate if acontis adapts the Software to the new generation with due regard for user requirements. In the event acontis adapts the Software to the new generation, acontis shall only further develop the Software on this basis.
7.4	Customer shall ensure that Customer’s IT-equipment, particularly the system software thereof meets the state of technology required by the Software under maintenance within the framework of further development in accordance with § 7.2 and § 7.3. acontis shall notify Customer promptly which state of technology must be provided for maintenance and support services.
	Customer shall notify acontis in advance if Customer plans to install a new version of the required system software. 
7.5	§ 7.2 through § 7.4 shall apply accordingly for other third-party software with which the Software has to work together. § 7.3 and § 7.4 shall also apply for third-party software which are freeware or in the public domain (e.g. Linux).
7.6	acontis agrees to further develop the respective current Software Version in the event changes in legal regulations or other provisions applicable for the Software require such further development.
7.7	Not covered by the lump-sum maintenance compensation shall be the inclusion of changes pursuant to § 7.2 through § 7.6 which can only be realized through full or partial reprogramming of the Software, or changes pursuant to new regulations or provisions. In such a case, acontis may request a reasonable additional compensation with due regard for all customers which require and request reprogramming. 
7.8	acontis shall keep a further developed Compatible Software Version compatible with the preceding Compatible Software Version with regard to acontis own performances. However, if circumstances not attributable to acontis cause the incompatibility of the Software, e.g. if pre-supplier software cause the incompatibility, acontis shall only be obliged to transmit the migration aids provided by the pre-supplier.
§ 8	Compensation for Maintenance
8.1	The initial annual lump-sum compensation shall be equal to the amount(s) as determined in Appendix 1. 
8.2	Customer shall pay the lump-sum compensation annually in advance.
8.3	With effect to the beginning of each calendar year, acontis is entitled to raise the compensation but the maximum increase will not exceed 4% of the previous annual compensation, with a notice period of three (3) months. In that case, Customer may terminate maintenance in writing within six (6) weeks. acontis shall be obliged to pass on reductions without a notice period.
III.	General Terms and Conditions
§ 9	Charges and Payments
9.1	Unless otherwise agreed, the compensation for the delivery of the Software shall be due after delivery is made. 
9.2	All performances which are not part of this Agreement (particularly pre-installation support, preparations for use, installation and demonstration of operational readiness, conversion of old data, instruction, training or consulting) shall – unless otherwise agreed – be compensated based on expense, unless otherwise agreed. Hourly rates, travel expenses and ancillary costs in this regard shall be in accordance with acontis’s price list. acontis may invoice monthly. 
9.3	Payments shall be made without any deduction within 30 days after receipt of the invoice by Customer.
9.4	Duties, taxes and levies including VAT – if applicable – shall be paid by Customer on all prices. 
9.5	If payments are delayed, Customer shall not be allowed to use the Software. 
§ 10	Disruptions in the Performance, Default
10.1	In the event that any event for which acontis is not responsible, including strikes or lockouts, impairs compliance with a deadline, acontis may request reasonable extension of the deadline. In the event the expense is increased due to a cause falling within the scope of responsibility of Customer, acontis may request reimbursement for its added expenses as well. 
10.2	In the event acontis is defaulted for over 30 days, Customer may claim for a contractual penalty in the amount equal to 0.5 % of the value of the performances which cannot be used for the intended purpose, but in no case higher than 5 % of the contract value, for each additional week of default from that date. In the event of a default in the delivery of a further developed Software Version within the framework of support performances (cf. § 7), the annual lump sum for support then applicable shall be set as the contract value.
§ 11	Remote Support
11.1	Upon acontis’s request, Customer shall enable acontis to perform remote support (remote diagnosis, remote corrections, transfer of new Software Versions) to the extent technically possible. 
11.2	If Customer does not enable acontis to perform tele support, Customer shall reimburse acontis additional costs, in any event travel time and additional costs for the correction of defects. 
11.3	If Customer transfers data to acontis for restoration or for the analysis of defects, acontis shall establish all technical and organizational measures in acontis’s organization equivalent to those Customer has to establish for security and privacy pursuant to the laws and statutes on data protection applicable to Customer. At Customer’s and/or acontis’s request, details shall be agreed on separately.
§ 12	Remedy of Defects
12.1	In the event a defect (cf. § 6.1) occurs during the proper use of the Software, Customer shall give notice of such defect in comprehensible form, thereby specifying in reasonable detail the information necessary for identification of the defect, and, upon the request of acontis, in writing. 
	A precondition for all claims against acontis shall be that the defect is reproducible or can be displayed through mechanically generated output.
	Customer shall assist acontis to the extent reasonable in the removal of defects, particularly by (i) transmitting the Software as used upon occurrence of the defect upon acontis’s request, (ii) making available machine time or (iii) integrating replacement deliveries provided by acontis.
12.2	In case of a defect of the Software, acontis shall, at its option, remedy such defect within a reasonable period either by removing the defect or by replacing the Software (any such removal and/or replacement measure is hereinafter referred to as “Supplementary Performance”). 
	In the event of defects which seriously impair use of the Software, acontis shall provide a workaround solution prior to the final Supplementary Performance, if necessary, so that the defect no longer has a serious impact. 
	acontis needs to remove other defects only at the time scheduled by acontis within the framework of proper Software Version support. acontis shall provide workaround solutions for such defects as well if such is reasonable for acontis (in the event of software expressly identified as such by pre-suppliers, acontis only needs to attempt corrective measures of the pre-supplier).
12.3	The duty for Supplementary Performance shall expire for software which Customer modifies or in which Customer otherwise intervenes, unless Customer demonstrates that the intervention did not cause the defect.
12.4	acontis may request reimbursement for its own expenses in the event acontis performed work based on receiving notice of a defect (beyond telephone support in accordance with § 5.1) and Customer fails to demonstrate a defect.
§ 13	acontis’s Liability
13.1	Except with respect of the breach of any confidentiality obligations and except in cases of negligence or willful misconduct of acontis or any of acontis’ directors, officers, employees or agents, to the maximum extent permitted by applicable law, acontis shall not be liable to the Customer for indirect, consequential, punitive or similar damages.
	acontis shall defend, indemnify and hold harmless Customer (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and attorneys’ fees) which Customer may suffer or incur in connection with any claim, demand, action or other proceeding by any third party alleging that the Software, when used within the scope of this Agreement, infringes, violates or misappropriates a valid third party patent, copyright or other proprietary right.
13.2	The limitation period for claims based on defects shall be 12 months starting from the delivery. 
13.3	acontis – 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 acontis breaches a basic obligation under this contract. In this event, acontis shall not be liable for any amount representing damages in excess of characteristic and foreseeable damages.
	Customer is entitled to claim for a higher liability of acontis, but acontis may then require a surcharge for the aggravated risk. 
	The restrictions pursuant to § 13.3 shall not apply if and to the extent to which damages are covered under acontis’s business liability insurance and the insurance company has effected payment to acontis. acontis agrees to maintain the coverage of this insurance as given at the time of the execution of the contract.
	Claims for personal injury and claims on the grounds of the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
§ 14	Confidentiality Obligations
14.1	acontis shall keep Customer's trade and business secrets confidential for an unlimited period of time, as well as all other information obtained by acontis under or in connection with this contract designated in writing as confidential by Customer. However, acontis shall have no obligation with respect to any information which is (i) already in acontis’s possession at the time of the execution of the contract, (ii) independently developed by acontis, or (iii) which is publicly known through no wrongful act of acontis. 
14.2	Notwithstanding § 14.1, acontis is not obliged to keep confidential any of acontis’s ideas, concepts, know-how or techniques related to the development of software.
14.3	acontis shall oblige its employees to observe the above confidentiality obligations.
14.4	acontis may include the name Customer and a brief description of the rendered performances in a reference list. All other advertising references to Customer shall be discussed in advance with Customer.
§ 15	Miscellaneous
15.1	This Agreement constitutes the entire agreement between acontis and Customer and supersede any prior or contemporaneous communications, representations or agreements between the Parties, whether oral or written, including but not limited to any e-mails or website information regarding the subject matter of this Agreement. This Agreement may not be changed except through a written amendment to this Agreement, signed by an authorized representative of each party.
15.2	This Agreement shall 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. 
15.3	If any provision of this Agreement is, for any reason, invalid and/or unenforceable, the remaining provisions shall continue to be valid and enforceable to the fullest extent permitted by law. The Parties agree to replace an invalid and/or unenforceable provision with a valid and/or enforceable provision which most closely approximates the intent and economic effect of said invalid and/or unenforceable provision.
15.4	All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one (1) or more arbitrators appointed in accordance with said Rules. Any arbitration proceedings shall be held in Frankfurt/Main, Germany. The arbitration language shall be English.

Appendix 1
§ 1 Product Line 1
Name:   _____________________________________________
Software
Product
CPU Architecture
Operating System

acontis technologies GmbH  88212 Ravensburg/Germany
Tel. +49 (0) 751 / 5 60 30 30   Fax +49 (0) 751 / 5 60 30 31   http://www.acontis.com
V 2.5.3
