ATLAS.ti GmbH Campus License Agreement

Article 1:  Contractual Relations; Definitions

(1) ATLAS.ti Scientific Software Development GmbH (hereinafter referred to as “licensor") is the manufacturer of the "ATLAS.ti" standard software (hereinafter referred to as "the software") and holder of the copyright thereto. The licensor grants the customer (hereinafter referred to as the “organization") the right to use the software and is contractual partner of the organization.

(2) The ordering process, delivery, invoicing, and all financial transactions are conducted on behalf of ATLAS.ti GmbH by Cleverbridge AG, Aachener Strasse 209, 50931 Cologne, Germany (hereinafter referred to as “Cleverbridge").

(1) The Licensor shall grant to the Customer a license to use the software during the term hereof. Subject to the provisions below, the Customer shall be entitled to make the software accessible to its employees, to its students and its academic associates. As regards the number of the Customer’s employees, students and academic associates who are authorized to use the software, the details stated in the Customer’s software order form under the designation “units” shall be conclusive and binding. (Units = Full Time Units = Total number of individuals belonging to the organization as faculty, staff, or students, who may be in a position to use the software. Order Form = number of units as reported by organization.)

(2) During the term hereof, the Customer shall also receive adapted versions and upgrades of the software which the Licensor may, at its sole discretion, implement. In the case of any such adaptation or upgrade as aforesaid, such version shall be made available to the Customer on data media or by way of online data communication.

(3) The Licensor shall grant the Customer the license to use the software exclusively subject to the terms and conditions hereof. The Customer shall waive any terms of contract which the Customer may have no matter whether or not the Licensor explicitly rejects such terms of contract.

Article 3: Delivery and Scope of Work

(1) The software consists of the program and the user's manual. The program shall be delivered in the English language by post on diskette/CD-ROM/DVD or by way of online data communication by way of Cleverbridge AG. In the event of data communication, the Customer shall, if necessary, be granted access to the area where the data is stored and from where the data can be downloaded.

(2) The Customer shall receive the software in machine code. The Customer shall not be entitled to demand delivery of the source code.

(3) The Customer itself shall install the software in its software environment.

(4) Any presentation or rendering in test programs, product and project descriptions shall not be deemed to constitute any warranty of properties unless explicitly referred to as such.

Article 4: Copyright and License

(1) The software (program and manual) supplied by the Licensor is protected by copyright. For the purposes of the relationship between the parties hereto, the Licensor shall be solely entitled to the rights relating to the software as well as any other documentation made available during the phase of preparing and implementing this agreement.

(2) During the term hereof, the Licensor shall grant to the Customer a non exclusive license for a limited term and a limited territory to use the software at the Customer's premises for the Customer's own purposes and in the manner described in the manual. The Customer shall be entitled to copy the software within the scope of its contractual use as contemplated herein. The Customer shall be entitled to load the software into the RAMs and harddisks of the hardware used by it, to use such software on a maximum number of computers, and to pass such software on to university students.

(3) The Customer shall be entitled to make the number of backup copies necessary for reliable operation. Such backup copies shall be marked as such and (as far as technically possible) shall be provided with the same copyright notice which also appears on the original data medium. The Customer shall not be entitled to copy the user's manual for any purposes other than the Customer's internal purposes.

(4) The Customer shall not be entitled to change or obscure in any manner any copyright notices, trademarks, other legal reservations, serial numbers or other features used for program identification purposes.

(5) Any other form of using the software, including, but not limited to, its compiling, editing, arranging, or modifying in any other manner whatsoever (other than decompiling pursuant to section 69e of the German Copyright Law [§ 69 UrhG]) or the (offline or online) dissemination of the software in any other manner as well as the renting or lending out thereof shall be subject to the written consent of the Licensor

 (6) The Licensor shall be entitled to revoke the license rights for a material reason. A material reason shall, in particular, be deemed to exist if the Customer is in default with payment of a substantial part of the remuneration or if the Customer fails to abide by the terms and conditions of the license and fails to immediately remedy such default after the Licensor's written request, including the Licensor's announcement to terminate the license otherwise. In the event that the license is terminated, the Customer shall return to the Licensor the original software as well as any copies thereof, and delete any programs stored. The Customer shall further ensure that the software will no longer be used by any of the persons at its institution referred to in Article 1 paragraph 1. At the Licensor's request, the Customer shall confirm in writing that he has returned such software and deleted such programs as aforestated.

Article 5: Customer's Obligations

(1) The Customer assures that it is a training institution and approved as such by the government. Before the software is supplied, the Customer shall provide the Licensor with a legally binding written document showing beyond any doubt such approval as a public institution (university, technical college of higher education, etc.).

(2) If this agreement is concluded with employees of an institution, paragraph (1) shall analogously apply, so that the employee concerned will likewise be under the obligation to provide such assurance and evidence.

(3) After receipt of the software the Customer shall be required to register online on the Licensor’s website, indicating the serial number. Only in this way it will be ensured that the Customer may use software upgrades and updates and newsletters and/or may participate in forums throughout the term of this agreement, to the extent that such services are offered by the Licensor and that the Licensor is able to establish that the software has been properly acquired and used. This type of support and services shall only be available to the Customer, not however to the persons (units) referred to in Article 1.

 (4) The Customer shall save its data in a manner consistent with the latest state of the art. The customer shall take reasonable measures in order to protect the software against unauthorized access by third parties.

(5) The Customer shall be obliged to download from the Licensor's homepage the relevant software updates by data transmission on condition that the Licensor notifies the Customer that new updates are available.

Article 6:  Time Schedule, Delays

(1) Delivery dates shall be deemed to be non-binding unless the Licensor has explicitly declared any such delivery dates to be binding in writing. Delivery dates shall be subject to the Licensor's receiving of any articles to be supplied in a correct condition and on time, unless the Licensor is responsible for any non-delivery by its suppliers.

(2) Delivery dates shall be extended by the period during which the Licensor is for any circumstances beyond its control (labour dispute, force majeure or any other hindrance beyond the Licensor's control) prevented from performing its obligations hereunder, plus a reasonable start-up period following elimination of such hindrance.  

(3) Partial shipments shall be permitted on condition that the parts delivered can be fully used in their own right. The Licensor shall be entitled to issue a separate invoice for every partial shipment.

Article 7: Terms of Payment

(1) For grant the software the customer has to pay to the licensor an annual license fee. The amount of this fee is indicated as part of the online order.

(2) Use of the software shall be limited to the FTU’s of the Organsiation.

(3) All amounts payable by the customer shall be paid to Cleverbridge AG via bank transfer as indicated on the invoice within 30 days after receiving the invoice, at the latest three weeks after grant the software to the customer.

(4) The Customer shall not be entitled to set off any payments unless the underlying claims are neither disputed nor unappealable. The Customer shall not be entitled to withhold any payments unless its counter-claims from the respective contractual relationship are neither disputed nor unappealable or unless the Licensor has violated any of its material obligations.

Article 8: Obligation to Inspect and to Report Defects

(1) The Customer shall be obliged to immediately inspect the software and software updates supplied (Article 4, subsection 3 hereof) and to report any defects in writing, including a detailed description (section 377 of the German Commercial Code [§ 377 HGB]).

(2) Reproducibility or the possibility to identify defects reported shall be a precondition for any repair or replacement work (refer to Article 8 heretobelow) by the Licensor. The Customer shall, in its defect notification, provide written information concerning the type of fault or error, the module where such fault or error occurred, as well as the work carried out at the time the fault or error occurred.

Article 9: Defects in Quality and Defects in Title

(1) The Licensor shall supply the software to the Customer in a condition free from defects in quality or defects in title. Defects affecting the suitability for use of the software to a minor extent only shall not be considered as defects for the purposes of this agreement. Functional impairment caused by the hardware and software environment made available by the Customer, operator error, defective external data, computer network malfunction or any other reason belonging to the Customer's sphere of responsibility shall not be considered as defects for the purposes of this agreement.

 (2 ) The Licensor shall eliminate any defects in quality by repair or replacement as the Licensor may elect. Such repair or replacement can, in particular, be carried out by delivering new software or by the Licensor showing ways to avoid such defect from reoccurring. The Customer shall be obliged to accept new software even if this means a reasonable adaptation effort on the part of the Customer.

(3 ) Repair or replacement in the case of defects in title shall be carried out by the Licensor providing the Customer with a lawful way to use the software. The Licensor shall be at liberty to replace the software concerned by equivalent software in conformity with the terms and conditions hereof if this is acceptable for the customer. In the event that any third party claims any industrial property rights in relation to the Customer, the Customer shall immediately notify the Licensor thereof in writing. The Licensor shall, as he may elect and after consultation with the Customer, either defend or satisfy such claims. The Customer shall not be entitled to accept any such claims raised by third parties. The Licensor shall defend at its own cost any such claims by a third party and shall hold the Customer harmless with regard to any costs and any damage related to the defending of such claims as aforesaid unless these are caused by the Customer violating its obligations.

(4 ) In the event of a failure of repair or replacement as aforesaid the Customer shall be entitled to reduce its payment(s) or to cancel the agreement. Damages shall be subject to Article 9 hereof.

Article 10:  Liability

(1) The Licensor shall pay damages or refund the Customer for futile expenditure for whatever legal reason (including, but not limited to, failure to fulfil obligations, tortuous act) to the following extent only:
- In the case of willful action and in the case of a guarantee concerning agreed properties: to the full amount.
-In the case of gross negligence: to the amount of the typical or foreseeable damage to be prevented by the Licensor's obligation to exercise due care.
- In any other case, always subject to violation of a material contractual obligation and in the case of default: to the amount of typical and foreseeable damage.

(2) Otherwise, liability for ordinary negligence shall be excluded.

(3) Notwithstanding the foregoing, statutory liability for personal injury and under the product liability act remains unaffected. The Licensor shall be at liberty to raise the defence of the Customer's being co-responsible for a damage.

(4) In the event of a loss of data, the Licensor's liability shall be limited to the damage which would have occurred even with the Customer performing data backup procedures (Article 4, subsection 1 hereof).

Article 11: Term, Winding Up

(1) This agreement shall have a term of one year. It shall be automatically renewed by additional one-year terms unless any party hereto objects in writing to such renewal at least eight weeks prior to the end of the term hereof.

(2) In the event of a termination hereof, the Customer shall be obliged to return to the Licensor the original software (diskette/CD-ROM/DVD), including the user's manual or shall be obliged to destroy the original software made available to it, and to immediately notify the Licensor thereof in writing. Furthermore, the Customer shall also be obliged to delete the software from any harddisks, RAMs and other terminals and to ensure that the software can no longer be used by the Customer or any of its employees or any third party, of which it shall assure the Licensor in writing.

Article 12: Contractual Penalty

(1) In case of infringements against Customers obligations in accordance with Article 4 (6) or 11 (2) a contractual penalty of 10% of the annual license fee to be paid to the Licensor is agreed upon. The payment of contractual penalty does not exclude the assertion of other claims for damages.

Article 13: Statutory Limitation of Liability

(1) Any claims which the Customer may have for reason of defects in quality or defects in title (Article 8) hereof shall become statute-barred within one year after delivery. In the event that a defect in title consists of a material right of any third party entitling such third party to claim the surrendering of the software, the statutory periods of limitation shall apply.

(2) Any other claims which the customer may have under contractual aspects or from an obligatory relationship shall become statute-barred one year after the statutory date of commencement of the period of limitation. Claims shall at the latest become statute-barred on expiration of the maximum statutory periods.

(3) The statutory periods shall apply to cases of personal injury (including violation of an individual's freedom) and to cases of wilful action and gross negligence.

Article 14: Confidentiality

(1) The contracting parties undertake to preserve their mutual business and operating secrets and to treat strictly confidentially any knowledge acquired in the context of their.co-operation.

(2) Particularly confidential are all documents and data that are made mutually accessible by word of mouth, electronically, in writing or by any other means. This shall not be confined to recipes, manufacturing details, monographs or analytical methods and intellectual property.

Non-confidential data and documents are those which
- at the time of being communicated are already matters of common knowledge
- are already known to the other contracting party at the time of being communicated
- become a matter of common knowledge after being communicated without any involvement of the other informing contracting party
- are, after being communicated, made accessible to the other contracting party by a third party lawfully and without restrictions being attached in terms of confidentiality or use.

The party claiming common knowledge and/or disclosure shall be required to furnish proof thereof by presenting pertinent written records. 

The documents and data communicated by the Licensor may not be passed on to any third party or otherwise made publicly known except with the prior written consent of theLicensor. 

(3 ) The obligation to observe confidentiality also extends to the Customer's staff members. The Customer undertakes to refrain from passing on the data and records made accessible to it by the Licensor to staff members, advisors and other persons except to the extent necessary for achieving the purposes of mutual co-operation. The Customer shall commit such staff members, advisors and other persons in writing to secrecy to the same extent as herein agreed between the Parties except where the persons concerned are already committed to professional secrecy.

(4 ) The Customer is herewith informed that the Licensor collects, stores, processes, and if necessary, passes on to third parties the Customer's data to the extent necessary for the performance hereof and subject to the applicable data protection and data privacy laws.

(5) Further, the Organisation agrees that the Licensor may use the name and indicate the type and purpose of the Organisation for reference purposes.

Article 15: Final Provisions

(1) This contract contains all of the agreements of the parties with regard to the subject matter of this Agreement.

(2) All amendments and additions to the License Agreement must be in writing (also by fax, e-mail). The same shall apply to the amendment of this written form requirement. Attachments shall form an integral part of this agreement.

(3) If one or several provisions of the License Agreement are invalid, the validity of the remaining provisions and of the License Agreement itself shall remain unaffected. The same shall apply in the event that the License Agreement is incomplete. If the License Agreement contains an invalid provision or is incomplete the invalid or missing provision shall automatically be replaced by such valid provision as comes closest to the economic purpose of the License Agreement.

(4) Exclusive venue for all disputes arising from the License Agreement shall be the court of Berlin / Germany. The Licensor shall also be entitled, however, to take legal action before the competent court having jurisdiction for the Customer’s registered office.

(5) The laws of the Federal Republic of Germany, with the exception of the UN Convention on Contracts for the International Sale of Goods (CISG), shall be applicable to the License Agreement.