Software and Know-how License Agreement
Version 1.0
between ParTec Cluster Competence Center GmbH
place of business: Possartstr. 20, 81679 München
represented by: Bernhard Frohwitter
- in the following referred to as ParTec -
and you
- in the following referred to as "Licensee" -
Preamble
ParTec has developed a cluster middleware software, comprising a
high-performance communication layer. ParTec decided to license a
base version of such software including a significant portion of
the high-performance communication layer royalty free to
educational institutions, such as universities, in order to
enable them to evaluate, study and enhance the software. It
should, however, be noted that the use of the software is solely
allowed for non-commercial purposes.
If any party, such as enterprises or governmental authorities,
wishes to use the software for commercial purposes in any sense,
need to contact ParTec in order to ask for a commercial license.
They have, however, the opportunity to use the software according
to this license one-time for a limited period of three (3)
months.
It is acknowledged that ParTec has invested an massive amount of
labour and financial means into the development of the software.
It is therefore, requested from each licensee to return the
results of their studies, amendments and enhancements free of
charge to ParTec in return for the granted rights as specified in
this contract.
§ 1 Definitions
"Technology" means ParTec's cluster middleware solution
ParaStation Base Version.
"Software" means the computer implementation of the Technology,
in object code, source code or any other machine readable
form, the source code of which is available for download.
"Base Version Code" means the Software in form of source code.
"Modifications" means any improvement and/or extensions by
Licensee of the Base Version Code, including the
underlying concepts.
"Derivative Work Code" means the Base Version Code with
Modifications.
"Documentation" means specifications and description of the
Technology.
"University Use" means evaluation, research, development and
educational use within the educational institution,
excluding use for direct or indirect commercial (including
strategic) gain or advantage.
"Commercial Use" means any non-consumer use that is not covered by
University Use.
"Know-how" means program documents and information which relates to
Software, also in machine readable form, in particular the
Base Version Code and the detailed comments on the Base
Version Code, provided together with the Base Version
Code.
§ 2 Granted Rights
Subject to and conditioned upon Licensees full compliance with
the terms and conditions of this license as specified in the Preamble, ParTec grants Licensee of this contract a non-exclusive and worldwide license for University Use and Commercial Use only to:
(a) reproduce, prepare derivative works of, display and
perform the Base Version Code, in whole or in part, alone
or as part of Derivative Work Code;
(b) reproduce, prepare derivative works of and display the
Documentation;
(c) use the Know-how.
§ 3 Assignment and Sublicenses
Licensee does not have the right to assign the license to third
parties or to grant sublicenses.
§ 4 Confidentiality
(1) Licensee promises to maintain in confidence the Know-how
provided to him by ParTec, in particular not to transfer it
to third parties, and to use the Know-how only in the scope
of this agreement.
(2) For this purpose Licensee will keep all documents and data
carriers containing Knowhow of ParTec locked up in the same
way as he keeps its own secret documents, and Licensee shall
require all of its staff having access to the know-how of
ParTec to sign a written confidentiality obligation, which
complies with this agreement.
(3) Furthermore Licensee promises not to publish the Software as
object code or as source code, nor the corresponding comments
either totally or in part on his own publications or other
documentation. Any functional description of Licensee's
Modifications, in particular source code of Modifications,
which shows Know-how, such as the structure of the Software,
is prohibited.
(4) The above limitations do not apply to information
(a) which Licensee already had in written form prior to
signing this agreement,
(b) which have become accessible to the public due to
publication of third parties without the activity of
Licensee.
The Licensee has the burden of proof for the existence of
such an exception.
(5) The above obligations also remain after the termination of
this agreement.
§ 5 Licensee's Duties
(1) Licensee shall submit to ParTec any suggestions for
improvements and further developments of the Technology.
ParTec may on its own discretion use, implement, publish,
exploit, commercialize those suggestions.
(2) Licensee shall provide source code and any documentation for
its Modification to ParTec as soon as practicable, but before
the publication of a functional description of Licensee's
Modifications. Licensee shall include
(a) a declaration about the origin of the contributed
material to the Modification, as in Attachment I,
(b) a file with the source code of Licensee's Modification
showing all changes and additions made,
(c) proper description of its Modification in English language.
(3) Licensee shall keep intact all existing copyright notices,
any notices referring to particular licenses and any warranty
related statements.
§ 6 Grant-Back
(1) Licensee grants ParTec for Modifications being severable
improvements a nonexclusive, perpetual, irrevocable,
worldwide and royalty-free license, and for Modifications
being non-severable improvements an exclusive, perpetual,
irrevocable, worldwide and royalty-free license to
(a) use, reproduce, modify, display, prepare derivative works
of and distribute its Modifications and derivative works
thereof, in whole or in part, in source code and object
code form, as part of the Software or other technologies
based in whole or in part on Base Version Code or
Technology;
(b) use, reproduce, modify, display, prepare derivative works
of and distribute Licensee's documentation of its
Modifications;
(c) sublicense any of the foregoing through multiple tiers of
distribution
(2) As far as the license granted in section §6(1) covers
Licensee's patents and patent applications, Licensee grants
ParTec a non-exclusive, perpetual, irrevocable, worldwide and
royalty-free license.
§ 7 Procedure against Infringers
Licensee shall promptly inform ParTec about infringement acts
related to the Software, particularly about offers and
distribution of piracy copies.
§ 8 Trademarks and Source Indication
Licensee does not have the right, except in the copyright notice,
to use the company name or any trademark of ParTec. Licensee may,
however, in the usual way refer to the fact that Licensee uses
ParTec's Software.
§ 9 Exclusion of Liability
(1) ParTec is not liable for errors and does not guarantee the
specific utility of the Technology for Licensee's purpose. In
particular, ParTec is not liable for indirect or subsequent
damages due to errors of the licensed Software.
(2) ParTec is not aware of any rights of third parties which
would oppose University Use or Commercial Use. ParTec is not
liable however for the licensed Software and the licensed
Know-how being free of rights of third parties.
(3) If Licensee is accused by third parties of infringing
intellectual property rights due to the use of the licensed
Software or the licensed Know-how, ParTec promises to provide
Licensee with information and documents in defense against
such claims as far as ParTec is able to do so without breach
of third party obligations and while maintaining its own
confidentiality interests. All costs involved in such
activities shall be borne by Licensee.
§ 10 Duration
(1) If licensee solely makes University Use of the licensed
Software and Know-how, this agreement is entered into for a
duration of 1 year. It is extended year by year unless it is
terminated 6 months beforehand by one of the parties.
(2) For licensees, which make Commercial Use of the licensed
Software or Know-how, this agreement is entered into for a
duration of three (3) months only. Licensee acknowledges that
he may only take advantage of this license for Commercial Use
once. For any subsequent retrieval of the Software, licensee
needs to obtain a separate License from ParTec.
§ 11 Termination
(1) A termination for cause is possible particularly in the case
of one of the following reasons.
(a) A breach by the Licensee of one of the obligations under
this agreement and the fruitless expiration of a period
of 10 days after warning by ParTec.
(b) Beginning of bankruptcy or receivership proceedings
relating to the property of the other party.
(c) An essential change in the control over the other party,
in particular merger or major control by a third company.
(2) A breach by Licensee of any one of the obligations under
sections §4, §5 and §6, will automatically terminate
Licensee's rights under this license.
§ 12 Rights after Expiration of the Agreement
(1) All rights of Licensee on the use of the Base Version Code
end at the expiration or termination of this agreement.
(2) Licensee promises to return to ParTec within one week after
the expiration or termination of the agreement all relevant
documents relating to the Base Version Code, whether secret
or not, as well as all copies made and to delete any copies
retrieved by downloading or copies thereof.
§ 13 Salvatorian clause
(1) Should a provision of this agreement be invalid or become
invalid or should this agreement contain an omission, then
the legal effect of the other provisions shall not thereby be
affected.
(2) Instead of the invalid provision a valid provision is deemed
to have been agreed upon which comes closest to what the
parties intended commercially; the same applies in the case
of an omission.
§ 14 Changes to this agreement
Any change of this agreement shall be made in writing, no
collateral agreements to this agreement have been made.
§ 15 Jurisdiction and Applicable Law
For all controversies out of this agreement the patent chamber of
the District Court Munich I shall have jurisdiction. The
applicable law shall be that of the Federal Republic of Germany
excluding United Nations Convention on Contracts for the
International Sale of Goods (CISG) and International Private Law.
Attachment I - Declaration of Origin
Material covered by this certificate (version, release, etc.):
_________________________________________________
Was any portion of the software material written by
anyone other than you or your employees within the
scope of their employment? YES/NO
Was any portion of the software material (e.g.,
Code, associated documentation, etc.) derived from
pre-existing works (either yours or a third party's),
including any code from freeware, shareware,
electronic bulletin boards, or the Internet? YES/NO
Please let us know any circumstance which might affect ParTec's
ability to reproduce, distribute and market this software
material, including whether your software material was prepared
from any pre-existing materials which have any: (a)
confidentiality or trade secret restrictions to others; (b) known
or possible royalty obligations to others; (c) used other
pre-existing materials developed for another party or customer
(including government) where you may not have retained full
rights to such other pre-existing materials.
You recognize that, for copyright registration or enforcement of
legal rights relating to the furnished software material, ParTec
may need you to produce additional information related to the
software material. You hereby agree to cooperate with ParTec and
provide such information to ParTec at ParTec s request. As an
authorized representative of your institution, you hereby certify
the above to be true and accurate.
BY: ________________________________ (Authorized Signature)
Name: ________________________________ (Type or Print)
Title: ________________________________
