HMS SOFTWARE LICENSE AGREEMENT

THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is entered into by and between

HMS Analytical Software GmbH
Grüne Meile 29, 69115 Heidelberg
hereinafter referred to as ("Licensor")

and the User ("Licensee") of this software.

WHEREAS, the Licensor, as a specialized data science consultancy and development partner for custom software solutions, has independently created a collection of proprietary Software Tools designed to enhance the development process and service delivery for clients such as the User ("Licensee").

WHEREAS, the Licensor’s collection of Software Tools includes, but is not limited to, prototype software, application blueprints and templates, development tools, data and program migration tools, custom scripts, data analysis tools, security utilities, APIs, simulation software, software libraries and packages, testing and QA tools, and performance monitoring tools (collectively referred to as “Software Tools”). The Licensor is the sole owner of all rights and in particular the sole copyright owner of these Software Tools, which constitute the Licensor's background intellectual property.

WHEREAS the Licensor provides services to the Licensee only in a project covered by a “Project Service Agreement", which includes the necessary use of the Licensor’s Software Tools for efficient project execution, the use of these tools is strictly limited to the purposes and scope of this project. It is clarified that the Software Tools and any enhancements of the Software Tools or new tools created by the Licensor, not included in the scope of the "Project Service Agreement", remain the exclusive property of the Licensor.

WHEREAS, the Licensor agrees to grant, and the Licensee agrees to accept, a non-exclusive, non-transferable license to use the Software Tools solely for the purpose of achieving project goals as outlined in the Project Service Agreement, subject to the terms and conditions set forth in this Agreement;

NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. DEFINITIONS:

a. "Software Tools":

Refers to the collection of software developed by the Licensor, categorized into two distinct types:

i. Supportive Tools

These include development tools, data and program migration tools, custom scripts, data analysis tools, security utilities, APIs, simulation software, software libraries and packages, testing and QA tools, performance monitoring tools, and other similar tools. Supportive Tools are designed for direct application within project scopes to facilitate specific tasks or processes and are intended to be used 'as is'.

ii. Templates
This category includes prototype software and application blueprints. Templates are foundational frameworks or starting points provided for the purpose of enabling and accelerating project initiation and development. They are designed to be adapted, modified, and evolved as part of the project's development process.
In addition to the above, "Software Tools" encompasses all associated documentation, updates, and any subsequent versions or adaptations provided by the Licensor. The Licensor reserves the right, at its sole discretion, to determine if and when updates, enhancements, or modifications to the Software Tools, including both Supportive Tools and Templates, are to be made. It should be explicitly stated that the Licensor reserves the right to modify, update, or enhance the Supportive Tools and Templates at any time for reasons including but not limited to security patches, functionality improvements, or compliance with legal requirements. These alterations by the Licensor do not constitute a breach of the agreement. The Licensee acknowledges that the Licensor is under no obligation to provide any such updates or modifications.

b. “Copyright”:

Pertains not only to copyright as traditionally understood in the context of software but also extends to copyright-like laws that apply to other forms of creative works, such as the design of user interfaces, technical concepts, and methodologies.

c. “Modification”:

To “modify” a work means to copy from or adapt all or part of the work in a manner that requires copyright permission, other than the creation of an exact copy. The resulting product is termed a “modified version” of the original work or a work “based on” the original work.

d. “Covered Work”:

This term denotes either the original, unmodified Software Tools or any work based on the Software Tools, including any modifications or derivative works created from the Software Tools.

e. “Propagation”:

Refers to any action with the Software Tools that, without proper authorization, could result in direct or secondary liability for copyright infringement under applicable law. This includes but is not limited to copying, distributing (with or without modification), making available to the public, and other activities as defined by law.

f. “Conveyance”:

To “convey” a work means engaging in any form of propagation that enables other parties to make or receive copies of the work. This does not include mere interaction with a user through a computer network without a transfer of a copy.

g. “Appropriate Legal Notices”:

In the context of an interactive user interface or source code, this refers to the display of (1) an appropriate copyright notice, and (2) information clarifying that there is no warranty for the work (except as explicitly provided), that licensees may convey the work under this License, and how to access a copy of this License. If the interface involves a list of user commands or options, such as a menu, a prominently placed item in the list meets this criterion.

2. GRANT OF LICENSE:

a. Subject to the terms and compliance with this Agreement, Licensor grants Licensee a non-exclusive, non-transferable, revocable license to use the Software Tools solely for the purpose and scope of the Project Service Agreement, with the specific conditions for revocation outlined in the Termination clause of this Agreement.
b. All rights, title, and interest in and to the Software Tools, including all intellectual property rights therein, are owned by Licensor.
c. The Licensee is permitted to operate the Software Tools within the context of the project as outlined in the Project Service Agreement. This includes:

i. Using Supportive Tools 'as is' without alteration by the licensee. Any reclassification of a Supportive Tool as a Template for further development by the Licensee must be mutually agreed upon and documented as per the agreement process outlined in the FURTHER DEVELOPMENT OF SUPPORTIVE TOOLS clause.
ii. Using Templates allowing the Licensee to modify and develop it within the project’s scope.
iii. When a Supportive Tool is reclassified as a Template under the agreed terms, it then falls under the Covered Work category, allowing the Licensee to modify and develop it within the project’s scope. This transition and its terms should be documented as per the agreement process outlined in the Transition of Supportive Tool to Template clause.
iv. The use of Supportive Tools as provided by Licensor, and the modified or developed use of Templates (formerly Supportive Tools), will both be regarded as part of the "Covered Work" under this Agreement, subject to its terms and conditions.

d. Any use beyond the Project Service Agreement scope requires prior written consent from the Licensor and may have additional terms.

3. COVERED WORK

a. Distinction Between and Use of Supportive Tools and Templates: The suite of Software Tools developed by the Licensor encompasses both Supportive Tools and Templates. Supportive Tools are to be used 'as is' and as provided by Licensor for aiding in achieving the project goals. Templates are designed and provided for easy initiation and are intended for modification and further development within the project scope in alignment with the Project Service Agreement.
b. Definition and Scope of Covered Work: "Covered Work" includes any output generated from the use of both the Supportive Tools and Templates within the scope of the Project Service Agreement. For Supportive Tools, this output must align with their use in an unmodified form. For Templates, Covered Work includes any modifications, adaptations, or further developments made in accordance with the Project Service Agreement. Such Covered Work is subject to the terms of this License, acknowledging the distinct uses and purposes of Supportive Tools and Templates.
c. Exclusion of New Developments: In cases where the development or modification of Templates leads to new Foreground IP, as described in clause "d.", such IP is not deemed “Covered Work” but is subject to joint ownership and specific licensing arrangements as outlined in that clause.
d. Foreground Intellectual Property (IP) in Joint Development from Template Development:

a. Template-Based Contributions: This clause becomes applicable specifically in instances where the modification and development of Templates, as provided under the Project Service Agreement, lead to significant new Foreground IP. It recognizes the substantial and joint contributions of both the Licensor and the Licensee in such developments.
b. Joint Ownership and Licensing of Template-Derived IP: Foreground IP that arises specifically from the development and modification of Templates is considered joint property of both the Licensor and the Licensee. Licensee is granted a non-exclusive, non-transferable license to use this Foreground IP for their respective internal business purposes. Commercial exploitation or external distribution of this Foreground IP by Licensee requires a separate written agreement outlining the terms of such use. The licensor is not subject to any restrictions on the use of Foreground IP.

4. DISTRIBUTION AND USAGE OF SUPPORTIVE TOOLS:

a. Limited Distribution: Redistribution is permissible solely within Licensee’s entity only and explicitly approved business partners, requiring written approval from Licensor.
b. Attribution: Any approved redistribution must provide clear attribution to Licensor as the provider and developer of the Software Tools.
c. Restricted and Contextual Use: Usage and distribution are limited to entities with which Licensor has an active Project Service Agreement.
d. Propagation: The Licensee is prohibited from engaging in Propagation of the Software Tools without obtaining proper authorization from the Licensor. This includes the prohibition of unauthorized copying, distribution, public performance, or public display of the Software Tools. The Licensee shall not engage in any form of Propagation that would infringe upon the copyright of the Software Tools or otherwise violate applicable law. The Licensee agrees to report any unauthorized Propagation of the Software Tools that comes to their attention via sales@analytical-software.de, and to assist in any reasonable compliance or enforcement efforts as requested by the Licensor. Any unauthorized Propagation by the Licensee, or any third party facilitated by the Licensee, shall be deemed a material breach of this Agreement and may result in immediate termination of the License, in addition to any other remedies available to the Licensor under law.

5. MODIFICATIONS:

a. Licensee agrees not to modify, adapt, or create derivative works from the Software Tools, unless otherwise agreed in this agreement or the Project Service Agreement.

6. FURTHER DEVELOPMENT OF SUPPORTIVE TOOLS

a. In the context of this Agreement, when a Supportive Tool is identified and agreed upon by both parties for further development, it will be reclassified as a 'Template'. This reclassification signifies a change in the permissible use of the software tool: from being used 'as is' (as intended for Supportive Tools) to being adaptable and modifiable for project-specific needs (as is typical for Templates). This transition allows for greater flexibility and creativity in the project development process while maintaining clear distinctions between the original categories of Software Tools.
b. Transition of Supportive Tool to Template: If the parties agree to further develop a specific Supportive Tool, such a software tool will be reclassified as a 'Template'. This reclassification is subject to mutual agreement and is intended to facilitate the customization and modification of the tool for the specific needs of the project.
c. Usage Rights Post-Transition: Once a Supportive Tool is reclassified as a Template, the Licensee is granted the rights to modify and develop this tool in line with the permissions associated with Templates, as defined in this Agreement. This includes adapting the tool to meet project-specific requirements and creating derivative works based on it, within the scope of the Project Service Agreement.
d. Documentation and Formal Agreement: The decision to reclassify a Supportive Tool as a Template must be documented in writing, either as an amendment to this Agreement or as a separate written agreeemt. This documentation will detail the specific software tool being reclassified, the scope of permitted development, and any other relevant terms or conditions.
e. Intellectual Property Rights in Reclassified Tools: All new intellectual property created as a result of modifying or developing the reclassified Supportive Tool (now a Template) will be treated according to the terms governing Foreground Intellectual Property in this Agreement.

7. CONDITIONAL USE AND FURTHER DEVELOPMENT:

a. Conditional Use: The Licensee acknowledges the distinct purposes of Supportive Tools (for use 'as is') and Templates (for further development within the project scope). Any use of these software tools beyond their intended purpose is conditional upon the terms set forth in this clause.
b. Further Development: If the Licensee wishes to develop or modify Supportive Tools, or use Templates beyond the initial project scope, Licensee must notify the Licensor and provide a detailed description of the proposed development.
c. Negotiation of New Agreement: Upon receiving the notification of Proposed Development from the Licensee, the Licensor shall have the option, within 30 days from receipt of such notice, to enter into negotiations for a separate agreement (“Development Agreement”) to govern the terms of the Proposed Development. The Development Agreement shall include, but not be limited to, terms regarding intellectual property rights, royalties, licensing fees, scope of development, and any necessary modifications to this Agreement.
d. Restrictions on Unauthorized Development: Until such a Development Agreement is duly executed, the Licensee shall not commence any Proposed Development of the Software Tools. Any unauthorized development, modification, or derivative creation by the Licensee without a fully executed Development Agreement shall be considered a breach of this Agreement.
e. Rights in Developed Software Tools: All intellectual property rights arising from any authorized development of the Software Tools remain the sole property of the Licensor, unless stipulated otherwise in the Development Agreement.
f. No Obligation to Enter into Development Agreement: The parties acknowledge that the Licensor is under no obligation to agree to enter into a Development Agreement or to permit any Proposed Development of the Software Tools. Any decision to permit further development shall be at the sole discretion of the Licensor.
g. Exclusive Right to Further Develop Software Tools: The Licensor retains the exclusive right to modify, update, or otherwise develop the Software Tools. No party other than the Licensor may alter or create derivative works of the Software Tools unless explicitly authorized through a separate written agreement. In contrast, the Templates are provided with the expectation of modification and further development by the licensor together with the Licensee within the scope of the Project Service Agreement as stated in the "Covered Work" clause.
h. Joint Co-Development to Further Develop Software Tools: Notwithstanding the above, the Licensor may, at its discretion, engage in joint development efforts with the Licensee. Such collaborative development shall be subject to additional terms and conditions, mutually agreed upon and documented in a separate written agreement or the Project Service Agreement.

8. WARRANTY AND LIABILITY:

a. The Software Tools are provided "as-is" without any warranties, express or implied. The Licensor disclaims all warranties, including any implied warranties of merchantability and fitness for a particular purpose. The Licensee assumes all risks related to quality and performance of the Software Tools.
b. The Licensor recommends, but does not require, expert consultation for optimal use of the Software Tools, available as a fee-based service.
c. The Licensor is not liable for any direct, indirect, incidental, or consequential damages arising from the use or inability to use the Software Tools.
d. Notwithstanding the foregoing provisions, the liability provisions of the Project Service Agreement shall apply to the use of templates.

9. PRICING AND FUTURE ADJUSTMENTS:

a. Current Version Pricing: The current version of the Software Tools is provided to Licensee free of charge, and no license fees are applicable.
b. Future Version Pricing: Licensor reserves the right to impose license fees or other charges for any future versions or updates of the Software Tools. However, no fees will apply to the Licensee for the use of any future versions or updates as long as it constitutes a "Covered Work" as defined in this Agreement. Pricing adjustments for future versions or updates shall not affect the Licensee's use of the version of the Software Tools available at the time of entering into this Agreement. Any fees or charges for subsequent versions will only be applicable to the Licensee upon their acceptance of such future versions and the associated license agreement.
c. No Obligation to Update: Licensee is under no obligation to use or accept any future versions of the Software Tools. Continued use of the current version shall remain governed by the terms of this Agreement, irrespective of the release of any future versions and their associated terms.
d. Notification of Changes: The Licensor will email the Licensee one month in advance of any changes to the terms or pricing for future versions or updates of the Software Tools. For example, if a change is decided on February 15th, the notification will be sent by the end of February, and the change will take effect on April 1st. It is the Licensee's responsibility to provide and maintain a current contact email address for these notifications. This ensures the Licensee has ample time to review and respond to changes, especially for updates or versions outside the scope of "Covered Work”.

10. Future Amendments and Supplements

a. Flexibility for Amendments: This Agreement may be amended or supplemented to address future needs, technological changes, or evolving business practices.
b. Process for Supplements:

I. Initiation: Either party may propose amendments or supplements in writing.
II. Negotiation and Execution: Proposed changes require mutual agreement, documented in writing and signed by both parties.
III. Integration with Agreement: Supplements will be consistent with this Agreement's terms. In case of conflict, this Agreement prevails unless the supplement explicitly states otherwise.
IV. Voluntary Supplements: Supplements are optional and subject to both parties' discretion.
V. Continuity of Agreement: This Agreement remains effective unless explicitly modified by an executed supplement.

11. THIRD-PARTY COMPONENTS AND SOFTWARE:

a. Acknowledgement: Licensee acknowledges that the Software may include components and software developed by third parties ("Third-Party Components").
b. Compliance with Third-Party Licenses: Licensee agrees to comply with all terms and conditions of the licenses applicable to the Third-Party Components. Licensee is responsible for obtaining and managing licenses for all Third-Party Components where applicable.
c. No Warranties: Licensor makes no representations or warranties concerning Third-Party Components, and Licensee agrees to look solely to the applicable third parties with respect to any issue, warranty, or claim related thereto.
d. Indemnification Exclusion: Licensee agrees to exclude Licensor from any liabilities, claims, or issues arising out of or related to the use of Third-Party Components.
e. Availability: Licensor does not guarantee the continued availability of Third-Party Components and shall not be liable for any discontinuation, alteration, or withdrawal thereof.

12. INDEMNIFICATION:

a. By Licensee: Licensee agrees to indemnify, defend, and hold harmless Licensor, its affiliates, officers, directors, employees, consultants, agents, and representatives from any and all third-party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from:

I. Licensee's access to or use of the Software Tools;
II. Violation of this Agreement by Licensee;
III. Infringement by Licensee, or any third party using Licensee’s account, of any intellectual property or other rights of any person or entity.

b. By Licensor: Licensor agrees to indemnify, defend, and hold harmless Licensee, its affiliates, officers, directors, employees, consultants, agents, and representatives from any and all third-party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from:

I. Willful misconduct or fraudulent actions taken by Licensor;
II. Breach of the representations and warranties set forth in this Agreement by Licensor;
III. Infringement of intellectual property rights by the Software Tools provided by Licensor.
c. Notice and Cooperation: Each party agrees to promptly notify the other party in writing of any indemnifiable claim, allow the other party to control the defense and settlement of such claim, and cooperate fully with the other party in defending or settling such claim.
d. Exceptions: Neither party shall be required to indemnify the other party in the event that the claim arises from the use of the Software Tools in a manner not authorized under this Agreement, or in violation of applicable law or the terms and conditions of this Agreement.

13. COPYRIGHT NOTICE FOR SOURCE CODE

a. Incorporation of Appropriate Legal Notices: In adherence to the "Appropriate Legal Notices" requirement outlined in this Agreement, all source code of the Software Tools provided under this Agreement shall include the following copyright notice:

/*************************************************************************
* Copyright (C) <YYYY> HMS Analytical Software GmbH - All Rights Reserved.
*
* CONTACT: sales@analytical-software.de
*
* NOTICE: All source code contained herein is, and remains
* the property of HMS Analytical Software GmbH.
* This source code is part of the <Supportive Tools OR Templates> provided by HMS Analytical Software GmbH.
* <It is intended to be used 'as is' without modification OR for further development within project scope>.

*
* This software is used and distributed exclusively under the terms
* of the HMS SOFTWARE LICENSE AGREEMENT, which can be accessed at
* https://www.analytical-software.de/licenses/.
*
* You should have received a copy of the HMS SOFTWARE LICENSE AGREEMENT
* along with this program. See file <path/filename>.
* If not, visit the website link above.
*/

b. Purpose and Compliance: This notice is intended to inform users and recipients of the source code that they are engaging with proprietary software governed by the terms of this Agreement. The Licensor will include this copyright notice in all source code that qualifies as a Software Tool. It is the responsibility of the Licensee to ensure that this notice remains included in any authorized copies or derivatives of the Software Tools, as required by this Agreement.
e.

14. TERMINATION:

a. This Agreement will terminate automatically with the end of the Project Service Agreement.
b. This Agreement will terminate immediately upon Licensee’s breach of any of its terms and conditions.
c. Upon termination, License will be revoked and Licensee must cease all use and destroy all copies of the Software Tools.

15. VIOLATION OF TERMS:

a. Licensee agrees that violation of the terms may result in termination of access to licensor tools, revoke of the license, legal action, and reparation towards Licensor.

16. COMPLIANCE WITH LAWS:

a. Licensee agrees to comply with all applicable international and national laws and regulations regarding the use of the Software Tools.

17. MISCELLANEOUS:

a. If any provision of this Agreement is held to be unenforceable, the remainder shall remain in full force and effect.

18. GOVERNING LAW

a. This agreement and any disputes arising out of or in connection with it shall be governed by the laws of Germany.

BY USING THE SOFTWARE, LICENSEE ACKNOWLEDGES HAVING READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

END OF TERMS AND CONDITIONS