SISW End User License Agreement for Freeware

This SISW End User License Agreement for Freeware (“EULA” or “the Agreement”) governs your use of certain materials provided hereunder by Siemens Industry Software Inc. (“SISW”) free of cost in relation to certain SISW software products or service offerings (collectively, “SISW Products”). These materials may include software, sample code, scripts, libraries, technology, documentation, or other proprietary material or information (collectively, “Freeware”). By using Freeware, you signify and agree to be bound by this EULA. If you are entering into this EULA for an entity, such as the company you work for, you represent that you have the authority to bind such entity to this EULA, in which case the term “you” or “your” shall refer to such entity. SISW retains the right to utilize its affiliated companies in pursuing any of its rights and fulfilling any of its obligations under this EULA. Therefore, the term “SISW” as used herein may also refer to affiliated companies of Siemens Industry Software Inc. who have been authorized by Siemens Industry Software Inc. to distribute the Freeware.

1 License Grant

SISW grants you a non-exclusive, royalty-free, limited right to install and use the Freeware solely for your internal business purposes as an end-user. You may copy and distribute the object code of the Freeware to third parties only as required to support your internal business purposes, provided all such third parties agree to the terms of this EULA. Each copy must include all notices, legends and terms embedded in the Freeware and affixed to its medium as received from SISW. Customer may use the Freeware as a basis to create derivative works solely for its internal business purposes (“Derivative Works”). Unless otherwise provided in this EULA or required to be permitted by applicable law, you shall not: (i) use or allow use of the Freeware for any technology other than SISW Products; (ii) reverse-engineer or decompile the Freeware; or, (iii) remove or modify SISW copyright, patent, trademark, or attribution notices in the Freeware.

2 Ownership

SISW or its licensors retain title to and ownership of the Freeware. SISW reserves all rights in the Freeware, including any software, ideas, concepts, know-how, development tools, techniques or any other proprietary material or information or any improvement or modification thereof. No ownership of the Freeware is transferred or assigned to you by this EULA. Subject to SISW’s ownership of the Freeware or any third party rights or restrictions, you shall retain ownership of any Derivative Works.

3 Rights in Feedback

If you provide SISW any suggestion, recommendation, ideas, feature request or other feedback for the modification, correction, improvement or enhancements of the Freeware (collectively, “Feedback”), you agree that such Feedback may be freely used by SISW without conditions, restrictions, or compensation.

4 Open Source Software

Software may contain third-party software, technology, and other materials, including open source software, licensed by third parties (“Third-Party Technology”) under separate terms (“Third-Party Terms”). Third-Party Terms are specified in the documentation, “read me” files, header files, notice files, or similar files. In the event of a conflict with the terms of this Agreement, the Third-Party Terms control with respect to Third-Party Technology. If Third-Party Terms require SISW to furnish Third-Party Technology in source code form, SISW will provide it upon written request and payment of any shipping charges.

5 Responsibility for Use of the Freeware

Except any liability directly caused by SISW’s breach of this EULA, you are solely responsible for the use of the Freeware (and all consequences arising therefrom), regardless if the use is undertaken by you, your employees, your contractors, or any authorized third parties. You will ensure that any use of the Freeware complies with your obligations under this EULA. Should you become aware of any breach of your obligations under this EULA, you will (i) immediately inform SISW in detail thereof and (ii) cease to use the Freeware.

6 Warranty, Liability, and Indemnification

SISW PROVIDES FREEWARE “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES AND WITHOUT ANY OBLIGATIONS TO INDEMNIFY NOR DEFEND YOU AGAINST ANY CLAIM OR LOSS. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE FREEWARE, ITS FUNCTIONALITY, OR SUPPORT SERVICES IN ANY COMMUNICATION WITH YOU CONSTITUTE MERELY TECHNICAL INFORMATION, NOT A WARRANTY OR GUARANTEE. SISW DISCLAIMS ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABLITIY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SISW DOES NOT WARRANT THAT THE FREEWARE IS FAIL-SAFE, FAULT-TOLERANT, FREE OF HARMFUL COMPONENTS OR ERROR-FREE AND SISW PROVIDES NO SUPPORT FOR THE FREEWARE. SISW DISCLAIMS ALL LIABILITY FOR ALL CLAIMS OR DAMAGES OF ANY KIND, IRRESPECTIVE OF THE LEGAL GROUNDS UPON WHICH THEY ARE BASED, IN RELATION TO THE FREEWARE. IN NO EVENT WILL SISW, SISW AFFILIATES, SISW’S LICENSORS NOR THEIR OFFICERS, DIRECTORS, OR EMPLOYEES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING FOR LOSS OF DATA OR PROFITS, EVEN IF SUCH DAMAGES WERE FORESEEABLE.

You agree to indemnify, defend, and hold SISW harmless from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from or arising out of any breach of this EULA by you or any other person you provided the Freeware, regardless of your knowledge of such breach.

7 Termination

SISW may terminate this EULA or any license granted hereunder at its sole discretion if SISW reasonably determines that you are in breach of this EULA.

8 Changes to Licence Agreement

SISW has the right at any time to change or modify the terms and conditions applicable to use of the Freeware, or any part thereof, or to impose new conditions. Such changes, modifications, additions, or deletions shall be effective immediately upon notice thereof, which may be given by, any means including, without limitation, electronic or conventional mail. Any use of the Freeware by you after such notice shall be deemed as acceptance of such changes, modifications, additions or deletions.

9 Governing Law and Jurisdiction

This Agreement will be governed by the substantive laws, excluding choice-of-law rules, of (i) the State of Delaware, United States, in case you are resident in North or South America, provided that Brazilian law will apply in case you are resident in Brazil, (ii) Singapore in case you are resident in Asia or Australia, provided that Japan law will apply in case you are resident in Japan, and (iii) Switzerland for all other licensees. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

10 Data Privacy

Where SISW acts as your processor of personal data provided by you, the Data Privacy Terms available at https://www.siemens.com/dpt/sw, including the technical and organizational measures described therein, apply to the use of the relevant Freeware and are incorporated into this Agreement by this reference.

11 EXPORT CONTROL AND SANCTIONS COMPLIANCE

11.1 General

Customer shall comply with all applicable sanctions, embargoes and (re-)export control, laws, and regulations, and, in any event, with those of the European Union, the United States of America and any locally applicable jurisdiction (collectively “Export Regulations”).

11.2 Checks for Goods and Services

Prior to any transaction by Customer concerning the Freeware or Deritivative Works, Customer shall check and certify by appropriate measures that (i) the Customer’s use, transfer, or distribution of such goods and services, the brokering of contracts or the provision of other economic resources in connection with goods and services will not be in violation of any Export Regulations, also taking into account any prohibitions to circumvent these (for example, by undue diversion); (ii) the goods and services are not intended or provided for, prohibited or unauthorized non-civilian purposes (for example, armaments, nuclear technology, weapons, or any other usage in the field of defense and military); (iii) Customer has screened all direct and indirect parties involved in the receipt, use, transfer, or distribution of the goods and services against all applicable restricted party lists of the Export Regulations concerning trading with entities, persons and organizations listed therein; and (iv) goods and services within the scope of items-related restrictions, as specified in the respective annexes to the Export Regulations, will not, unless permitted by the Export Regulations, be (a) exported, directly or indirectly (for example, via Eurasian Economic Union (EAEU) countries), to Russia or Belarus, or (b) resold to any third party business partner that does not take a prior commitment not to export such goods and services to Russia or Belarus.

11.3 Non-Acceptable Use of Software and Cloud Services

Customer shall not, unless permitted by the Export Regulations or respective governmental licenses or approvals, (i) download, install, access or use the Freeware or Derivative Works from or in any location prohibited by or subject to comprehensive sanctions or subject to license requirements according to the Export Regulations; (ii) grant access to, transfer, (re-)export (including any ‘deemed (re-)exports’), or otherwise make available the Freeware or Derivative Works to any entity, person, or organization identified on a restricted party list of the Export Regulations, or owned or controlled by a listed party; (iii) use the Freeware or Derivative Works for any purpose prohibited by the Export Regulations (for example, use in connection with armaments, nuclear technology or weapons); (iv) facilitate any of the aforementioned activities by any user. Customer shall provide all users with all information necessary to ensure compliance with the Export Regulations.

11.4 Semiconductor Development

Customer will not, without advance written authorization from SISW, use Freeware or Derivative Works for the development or production of integrated circuits at any semiconductor fabrication facility located in China meeting the criteria specified in the U.S. Export Administration Regulations, 15 C.F.R. 744.23.

11.5 Information

Upon request by SISW, Customer shall promptly provide SISW with all information pertaining to users, the intended use, and the location of use, or the final destination (in the case of Hardware, Documentation and technology) of the Freeware or Derivative Works. Customer will notify SISW prior to Customer disclosing any information to SISW that is defense-related or requires controlled or special handling pursuant to applicable government regulations and will use the disclosure tools and methods specified by SISW.

11.6 Indemnification

Customer will indemnify and hold harmless SISW, its affiliates, subcontractors, and their representatives against any claims, damages, fines, and costs (including attorney’s fees and expenses) relating in any way to Customer’s noncompliance with this Section 11, including Customer’s and its users’ and third party business partners’ violation or alleged violation of any Export Regulations and Customer will compensate SISW for all losses and expenses resulting thereof.

11.7 Reservation

SISW shall not be obligated to fulfill this Agreement if such fulfillment is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions. Customer acknowledges that SISW may be obliged under the Export Regulations to limit or suspend access by Customer and/or users to the Freeware or Derivative Works.

12 No Waiver; Validity and Enforceability

The failure to enforce any provision of this Agreement will not be construed as a waiver of such provision. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will not be affected, and such provision will be deemed to be restated to reflect the original intentions of the parties as nearly as possible in accordance with applicable law.

13 Entire Agreement

This Agreement constitutes the full and complete agreement between the parties with respect to the subject matter thereof and supersedes any previous or contemporaneous agreements or communications, whether written or verbal, relating to such subject matter. The reference to a document that refers to another document will be deemed to also include such other document, unless otherwise stated therein.