itemis Terms of Use for Evaluation Access

“Intellectual Property Rights” means patents, rights to inventions, copyrights and related rights, trade secrets, moral rights, trademarks, trade names and domain names, rights in goodwill, rights in designs, rights in computer software, database rights and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may exist now or in future.

“itemis Software” means the free evaluation versions of itemis CREATE, Tools, and any other itemis or third party software products and components which are made available to Licensee under this Agreement as part of the Service.

“Licensee Content” shall mean code, models, applications, configurations, data, or other electronic materials created by Licensee using the Tools and/or any itemis Software licensed hereunder.

“Service” means the web based software services made available by itemis to Licensee through an itemis web site and can be accessed by Licensee through a browser or a dedicated desk top app provided by itemis.

“Subscription Term” means the term of access to the Service, which is limited to (3) three months from Effective Date. itemis may extend the evaluation access for additional time periods as communicated to Licensee in advance before of the end of the Subscription Term.

“Tools” are the applications, SDKs, statecharts, state machines, templates, sample code, and other similar developer software, documentation, and reference materials including classes and methods, that are utilized by Licensee to create Licensee Content and made available to Licensee by itemis through the Service.

itemis will retain physical control over the itemis Software and provides Licensee with an evaluation and test access to the Service and the items Software in order to receive feedback from Licensee. Therefore, Licensee cannot rely on any features or functionalities nor that any data or content that Licensee is storing or processing as part of the Service will be saved or backed-up. Licensee shall only use testing data and save any Licensee Content regularly.

To register for the Services, Licensee must be authenticated through a unique, personal username and password or through an existing Google or AWS account. Licensee acknowledges and agrees that Licensee is solely responsible for (i) maintaining the confidentiality and security of any access information, and (ii) all activities that occur in connection with Licensee’s account, whether initiated by Licensee, by others on Licensee’s behalf or by any other means. Licensee will notify itemis immediately of any unauthorized use of Licensee’s account, passwords, or any other actual or potential breach of security. Licensee acknowledges and agrees that itemis will not be liable for any loss that may incur as a result of any party using Licensee’s access information, either with or without Licensee’s knowledge and/or authorization. itemis strongly recommends that Licensor keeps any access information in a secure location, take precautions to prevent others from accessing it and change it when necessary to maintain its confidentiality and security.

As the Service is provided hereunder for evaluation purposes only, itemis will not provide any support or maintenance for the Service or any itemis Software provided hereunder. itemis is entitled to modify or limit any features and functions of the Service during the Subscription Term without notice.

During the Subscription Term, itemis grants to License a limited, non-transferable, non-exclusive, non-perpetual, revocable right to access and use the Services and related documentation for internal development, evaluation, testing, or demonstration purposes on a trial basis ("Authorized Use").

The Service may be used by Licensee and any of its authorized registered users, provided that Licensee ensures that anyone who uses the Service or the itemis Software: i) does so only on Licensee’s behalf within Licensee’s Authorized Use; and ii) complies with this Agreement. Licensee acknowledges and agrees that the actions of any of Licensee’s users with respect to the Service will be deemed to be actions by Licensee and that any breach by any of Licensee’s users of the terms of this Agreement will be deemed to be a breach by Licensee.

Licensee may not use the Service or itemis Software for productive purposes, rent or lease the itemis Software, or provide commercial IT, hosting or timesharing services to any third party. Additional rights may be available for additional fees or under different terms.

Any use of the itemis Software and/or Service that is not expressly granted as Authorized Use is prohibited. In particular, Licensee shall not, or allow a third party to: (i) attempt to circumvent any technical devices of the itemis Software that are directed at, or have the effect of, enforcing the terms of the Agreement; (ii) modify, create derivative works, translate, decompile or create or attempt to create, by reverse engineering or otherwise, the source code or the object code of the itemis Software (except as expressly allowed by applicable law); (iii) remove, modify or obscure any Intellectual Property Right notice on the Service, or related data, manuals, documentation or other materials; or (iv) market, sell, lend, rent, lease, or otherwise distribute, or provide access to Service to third parties. This shall not affect Licensee’s mandatory statutory rights.

Furthermore, Licensee shall not: (i) use the Service to store or transmit infringing, libelous, and/or otherwise unlawful material, and/or material in violation of third-party privacy rights, and/or (ii) use the Service to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, and (iii) interfere with or disrupt the integrity or performance of the Service or data contained therein, and/or d) build a competitive product or service; and/or (iv) copy any features, functions or graphics of the Service or itemis Software.

Subject to the limited rights expressly granted under this Agreement, itemis reserves all right, title and interest in and to the Service, the Tools and the itemis Software and any content provided as part of the Agreement, including all related Intellectual Property Rights. Nothing in this Agreement shall in any way convey to Licensee any ownership rights or title in or to the itemis Software or Service. Further, itemis shall retain all right and title in and to all modifications and/or enhancements to the Service, the Tools and the itemis Software, regardless of the source of inspiration for any such enhancement or modification and regardless of whether Licensee has provided input regarding such modifications and/or enhancements. Licensee grants to itemis a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service or the itemis Software any suggestions, enhancement requests, recommendations or other feedback as provided by Licensee or its users.

Subject to itemis’ ownership of the Service and itemis Software, the ownership of any Licensee Content that Licensee develops under this Agreement shall vest in Licensee. itemis shall assume no responsibility or liability of any kind which arises out of or related to any Licensee Content. Licensee agrees to fully indemnify, hold harmless and defend itemis against any claims that Licensee Content infringes any Intellectual Property Right of a third party.

The license granted hereunder shall commence upon Effective Date and shall continue for the Subscription Term. Licensee may terminate the Agreement at any time by deleting Licensee’s account. Itemis may terminate this Agreement at any time giving (10) days’ notice.

itemis may terminate this Agreement and the license to use the Service and itemis Software immediately, if (i) Licensee is using the Service or the itemis Software outside the Authorized Use, or (ii) Licensee fails to comply with any of the terms of this Agreement.

Upon termination Licensee will remove any of Licensee’s Content or other data from the Service and Licensee will promptly destroy all copies of the itemis Software downloaded by Licensee during the Subscription Terms. itemis will not provide any data back-up or data migration.

Any terms that by their nature extend beyond the termination remain in effect until fulfilled and apply to successors and assignees.

If Licensee is located outside the US or Canada: AS THE SERVICE AND THE ITEMIS SOFTWARE IS PROVIDED TO LICENSEE FREE OF CHARGE FOR EVALUATION PURPOSES, ITEMIS DOES NOT (I) GUARANTEE OR WARRANT ANY FEATURES OR QUALITIES OF THE SERVICE OR THE ITEMIS SOFTWARE OR (II) GIVE ANY UNDERTAKING WITH REGARD TO ANY OTHER QUALITY. NO SUCH WARRANTY OR UNDERTAKING SHALL BE IMPLIED BY LICENSEE FROM ANY DESCRIPTION IN THE SERVICE OR THE ITEMIS SOFTWARE OR ANY AVAILABLE DOCUMENTATION OR ANY OTHER COMMUNICATION OR ADVERTISEMENT. IN PARTICULAR, ITEMIS DOES NOT WARRANT THAT SERVICE AND THE ITEMIS SOFTWARE WILL BE PERMANENTLY AVAILABLE OR UNINTERRUPTED, OR ERROR FREE. ALL WARRANTY CLAIMS ARE SUBJECT TO THE LIMITATION OF LIABILITY SECTION BELOW.

If Licensee is located in the US or Canada: THE SERVICE AND THE ITEMIS SOFTWARE ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY, MAINTENANCE, OR SERVICE OBLIGATIONS WHATSOEVER. ITEMIS DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND CONDITIONS OF MERCHANTABLE QUALITY, WHETHER ARISING BY STATUTE OR IN LAW OR AS A RESULT OF A COURSE OF DEALING OR USAGE OF TRADE. NEITHER ITEMIS NOR ITS SUBSIDIARIES NOR ANY OF ITS LICENSORS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS LOSSES, BUSINESS INTERRUPTION, LOSS OF DATA, AND THE LIKE) ARISING OUT OF LICENSEES USE OF THE SERVICE AND THE ITEMIS SOFTWARE, EVEN IF ITEMIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

If Licensee is located outside the US or Canada: IRRESPECTIVE OF THE LEGAL BASIS, ITEMIS SHALL ONLY BE LIABLE FOR DAMAGES UNDER THIS AGREEMENT IF SUCH DAMAGE IS BASED ON (I) CLAIMS UNDER THE GERMAN PRODUCT LIABILITY ACT, OR (II) ITEMIS’ INTENTIONAL MISCONDUCT, OR (III) PERSONAL INJURY CLAIMS. IN ALL OTHER CASES, NEITHER ITEMIS NOR ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS SHALL BE LIABLE FOR ANY KIND OF DAMAGE OR CLAIMS HEREUNDER.

If Licensee is located in the US or Canada: IN NO EVENT SHALL ITEMIS BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY DAMAGES IN AN AMOUNT IN EXCESS OF 100 USD ARISING IN CONNECTION WITH LICENSEE’S USE OF OR INABILITY TO USE THE SERVICE AND THE ITEMIS SOFTWARE OR IN CONNECTION WITH ITEMIS’ PROVISION OF OR FAILURE TO PROVIDE SERVICES PERTAINING TO THE ITEMIS SOFTWARE, OR AS A RESULT OF ANY DEFECT IN THE SERVICE OR THE ITEMIS SOFTWARE. THIS DISCLAIMER OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION THAT MAY BE BROUGHT AGAINST ITEMIS, WHETHER IN CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION ANY ACTION FOR NEGLIGENCE. LICENSOR’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF BREACH OF THIS AGREEMENT BY ITEMIS OR FOR ANY OTHER CLAIM RELATED TO THE SERVICE AND THE ITEMIS SOFTWARE SHALL BE TERMINATION OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES SHALL ITEMIS AND ITS LICENSORS BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANYAND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES.

In the event Licensee is provided or granted access to confidential information of itemis in connection with the performance of this Agreement which information is expressly identified or reasonably identifiable as confidential or proprietary based on the circumstances of its disclosure ("Confidential Information"), Licensee shall hold in confidence such Confidential Information and use such Confidential Information only for the purposes of this Agreement. Itemis’ Confidential Information shall include, but are not limited to, the itemis Software, Tools, the Service, any related road maps, programming techniques and concepts, processing methods, designs, inventions, documentation, and application programming interface specifications.

Each Party shall comply with applicable data protection laws and regulations. itemis will only capture and save information about users of the Service as required to provide Licensee with the Services as set forth under this Agreement. All information how itemis captures and stores will be treated in accordance with itemis privacy statement which may be viewed at www.itemis.com/en/data-protection/rights.

If Licensee is located outside the US or Canada: The Agreement shall be governed by, and construed in accordance with, the substantive laws Germany without reference to its conflict of law provisions. If Licensee is a consumer with a residence in a member state of the European Union, the mandatory consumer protective provisions of the residential EU state shall apply in addition to German law. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the Parties under this Agreement. In case Licensee is not a consumer, the exclusive place of jurisdiction for all disputes arising from this contract shall be Lünen, Germany.

If Licensee is located in the US or Canada: This Agreement, including the validity hereof and the rights and obligations of the Parties hereunder, shall be construed in accordance with and all disputes, controversies or claims arising out of or relating to this Agreement shall be governed by the laws of the State of Delaware applicable to contracts made and to be performed entirely in such State (without giving effect to the conflicts of laws provisions thereof). The U.N. Convention of Contracts for the Sale of International Goods will not apply. In any action or proceeding to enforce rights under this Agreement, the prevailing Party shall, pursuant to an order or direction of a court, be entitled to recover costs and attorneys’ fees.

Licensee may not assign or otherwise transfer any of Licensee’s rights under this Agreement, by operation of law or otherwise, without itemis’ prior written consent.

The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.

This Agreement and Licensees access and use of the Service and the itemis Software is subject to any governmental regulations, laws, orders or other restrictions on the export of software and related information and documentation that may be imposed by governmental authorities. Licensee confirms that Licensee will comply in all respect with any governmental regulations, laws, orders, or other restrictions on the export of software and any related information and documentation which may be imposed by the governments and regulatory agencies of the United States, European Union, the Federal Republic of Germany and any country to which any software is shipped to Licensee, or downloaded by Licensee, from itemis.

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.