The ParaStation software may be used under the following terms and conditions only.
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 noncommercial 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
means ParTec's cluster middleware solution ParaStation Base Version.
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. means ParTec's cluster middleware solution ParaStation Base Version.
means the Software in form of source code.
means any improvement and/or extensions by Licensee of the Base Version Code, including the underlying concepts.
means the Base Version Code with Modifications.
means specifications and description of the Technology.
means evaluation, research, development and educational use within the educational institution, excluding use for direct or indirect commercial (including strategic) gain or advantage.
means any non-consumer use that is not covered by University Use.
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, ParTec grants Licensee of this contract a non-exclusive, worldwide and royaltyfree license for University Use and Commercial Use only to:
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;
reproduce, prepare derivative works of and display the Documentation;
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
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.
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.
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.
The above limitations do not apply to information
which Licensee already had in written form prior to signing this agreement,
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.
The above obligations also remain after the termination of this agreement.
§ 5 Licensee's Duties
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.
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 declaration about the origin of the contributed material to the Modification, as in Attachment I,
a file with the source code of Licensee's Modification showing all changes and additions made,
proper description of its Modification in English language.
Licensee shall keep intact all existing copyright notices, any notices referring to particular licenses and any warranty related statements.
§ 6 Grant-Back
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
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;
use, reproduce, modify, display, prepare derivative works of and distribute Licensee's documentation of its Modifications;
sublicense any of the foregoing through multiple tiers of distribution
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
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.
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.
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
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.
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
A termination for cause is possible particularly in the case of one of the following reasons.
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.
Beginning of bankruptcy or receivership proceedings relating to the property of the other party.
An essential change in the control over the other party, in particular merger or major control by a third company.
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
All rights of Licensee on the use of the Base Version Code end at the expiration or termination of this agreement.
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
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.
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 preexisting 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 preexisting materials which have any: (a) confidentiality or trade secret restrictions to others; (b) known or possible royalty obligations to others; (c) used other preexisting materials developed for another party or customer (including government) where you may not have retained full rights to such other preexisting 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: ________________________________