SOFTWARE LICENSE AGREEMENT

Last update: 24 August 2023

This Software License Agreement, together with the applicable Order which is incorporated herein (collectively the “Agreement”) defines the conditions under which EXWAYZ, a French simplified joint-stock company with a capital of 30,000 euros, whose registered office is located at 39 rue de la Gare de Reuilly, 75012 Paris, France, registered under number 900 329 608 RCS Paris (“EXWAYZ”), grants Licensee a license to use the Software.

  1. DEFINITIONS
“Application” means a program that Licensee creates using the Software that has substantial added value and functionality over the Software, is not merely a set or subset of the functions provided by the Software, and that does not directly expose the interfaces of the Software to end users of the Application. Applications do not include programs that substantially duplicate the capabilities of or compete with the Software.
“Basic Support” means the support services EXWAYZ provides Licensee at no extra charge as set forth in Annex 1.
“Customer” means a customer of Licensee.
“Designated Unit” means each a physical standalone computing unit such as a PC, an ECU or an embedded board with a CPU or SoC (System on Chip) in which the Software or a Runtime Environment is installed. In the context of this Agreement, a virtual machine (e.g., in a cloud architecture) exploiting several physical computing units as defined above but exposing only one virtually to the end-user is not considered as a single Designated Unit but as N units (N being the number of computing units in use behind the virtual machine).
“Documentation” means user manuals, training materials, software descriptions and specifications, technical manuals, supporting materials and other information provided by EXWAYZ and accompanying the Software, whether distributed in print or electronic form.
“License Fees” means the fees for the license of the Software and the provision of Basic Support, as set forth in the Order. The Order shall designate whether the Software is licensed on a subscription basis or as a paid-up fixed term license.
“License Key” means the mechanism provided by EXWAYZ that enables Customer to install and use the Software under this Agreement.
“Licensee” means the company identified in the Order and who is acquiring the software license.
“Non-Productive Use” means Use of the Software solely for Licensee’s internal training, testing or developmental work, as well as to demonstrate and promote Licensee products and/or services for the benefit of Licensee.
“Order” means a quote, order form, or other document issued by EXWAYZ and accepted by Licensee, made a part hereof, wherein Licensee orders certain Softwares and/or maintenance and support services pursuant to this Software License Agreement.
“Party(ies)” means EXWAYZ and/or Licensee, as the context requires.
“Perpetual License” means a license to use the Software in perpetuity, for which a one-time upfront payment of License Fee has been made.
“Premium Support” means optional support services provided by EXWAYZ to Licensee against payment of Premium Support fees.
“Productive Use” means Use of the Software solely for Licensee’s own internal business operations.
“Runtime Environment” means a subset of the Software that does not include functionality for creating or modifying Applications.
“Software” means computer programs, where applicable including but not limited to object code, that are or will be provided by EXWAYZ according to this Agreement. Unless otherwise explicitly stated hereinafter, the definition of Software also includes any enhancements, translations, modifications, updates, releases, or other changes to the Software which are or will be provided as part of EXWAYZ’s performance of warranty service obligations or prepaid support services according to this Agreement.
“Subscription-Based License” means a license of the Software that is purchased for a set amount of time and will only be available for that amount of time.
“Territory” means the territory defined in the Order.
“Use” means to load, execute, access, employ, utilize, store, or display the Software.
  1. DUTY TO INFORM AND ADVISE
    1. As part of EXWAYZ’s duty to provide information and advice, Licensee acknowledges that the Software and its functionalities have been presented to Licensee in detail, in particular during a demonstration and/or through a documented commercial presentation. Accordingly, Licensee acknowledges and declares having (i) received all the prerequisites, information, advice and warnings necessary for the installation and functional and technical use of the Software; (ii) had sufficient time to review and understand the documentation, to enter into this Agreement knowingly; (iii) assessed and determined that the Software is suitable for its particular needs and constraints, it being specified that, unless agreed otherwise by the Parties, the Software has not been developed to meet its individual requirements; and (iv) the required skills to make such assessment and determination.
    2. Licensee acknowledges that the degree of pre-contractual information given by EXWAYZ is within the limits of EXWAYZ' knowledge of Licensee’s projects and needs as stated by Licensee.
  2. INTELLECTUAL PROPERTY
    1. The Software and the Documentation are licensed, not sold, to Licensee. EXWAYZ owns and retains all rights, title and interests in and to the Software and Documentation, including all intellectual property rights on a worldwide basis. Licensee acknowledges that all intellectual property rights in the Software are vested in and belong to EXWAYZ, and that Licensee has no rights in or to the Software or Documentation other than the right to use them under the terms of this Agreement. Licensee is not granted any rights to or in relation to the source code of the Software.
    2. If Licensee recognizes, suspects or becomes aware that a breach of rights is imminent, or has occurred, it must inform EXWAYZ immediately.
  3. GRANT OF LICENSE
    1. License. Subject to Licensee’s continuous compliance with the terms and conditions of this Agreement and in consideration of Licensee’s obligation to pay the License Fees as outlined in the Order, EXWAYZ grants Licensee, for each item of Software received by Licensee and for the Term of this Agreement, a non-exclusive, non-transferable, non-sublicensable license to:
      1. Use the Software [at specified site(s)] within the Territory for its own Productive and Non-Productive Uses, in particular to develop Applications;
      2. make one copy of the Software for back-up purposes only; and
      3. use the Documentation to support the Use and make copies of the Documentation as are reasonably necessary for Licensee’s lawful Use of the Software in accordance with this Agreement; and
      4. market and distribute, within the Territory, the Runtime Environment, in object code format only, with Applications developed by Licensee under this Agreement, so long as Licensee purchases and sublicense one or more Runtime Licenses for each Application that it distributes to its own Customers.
    2. Designated Units. Licensee agrees to install the Software only on Designated Unit(s), as identified by Licensee pursuant to this Agreement and which have been previously approved by EXWAYZ in writing. Each copy of the Software shall therefore be installed and used by Licensee on only one single Designated Unit. Licensee agrees to provide EXWAYZ with the unique hardware identifier of each Designated Unit on which a copy of the Software will be installed, prior to installing or using the Software.

Licensee may transfer the Software from one Designated Unit to another at no additional License Fee and shall provide written notice to EXWAYZ within ten (10) business days of such installation. The Software must be promptly deleted in its entirety from the Designated Unit no longer in use and from each back-up copy for that Designated Unit. Licensee shall maintain a written, up to date list of current Designated Units and provide such list upon EXWAYZ’s written request at any time.

  1. New Versions. If Licensee receives from EXWAYZ a new version of the Software (e.g., within the scope of rectification, maintenance or evolution), which replaces a previously provided Software version, the right of use granted to Licensee shall exist exclusively regarding the most recently received version. The right of use with respect to the previously provided version shall expire as soon as Licensee implements the new version for Productive Use. However, Licensee may use the new version for test purposes alongside the old version in productive use for a period of two (2) consecutive calendar months.
  2. Free Trial. If Licensee orders a free trial version of the Software, EXWAYZ wille make the Software available to Licensee on a trial basis (the “Trial Version”), free of charge, until the earlier of: (a) the end of the free trial period for which Licensee ordered the Software; (b) the start date of a paid for license to the Software; or (c) termination by EXWAYZ in its sole discretion. The Trial Version may be Used only to review and evaluate the Software for the sole purpose of determining whether to purchase a license to the Software. Licensee may not use the Trial Version in a production environment and may not redistribute the Software. Licensee will be required to pay for a license for the Software at EXWAYZ’s then applicable license price if Licensee would like to continue to use the Software after the Trial Version expires or terminates.
  3. RESTRICTIONS
    1. Safety. The Software must be put into operation exclusively by suitably trained and expert operating personnel, under strict compliance with the safety measures described in the Documentation. Any results obtained from or by use of the Software must be thoroughly tested and validated by Licensee before being incorporated, distributed or otherwise used in or in connection with any end product or application. The Software is not fault tolerant and must not be used for any activity in which the failure of the Software could result in loss of human life, personal injury or property damage.
    2. Prohibited Uses. Licensee may not:
      1. use the Software except as set forth in this Agreement;
      2. use the Software in any way that is unlawful, malicious, or in violation of any third-party rights, applicable laws and regulations;
      3. modify, adapt, reverse engineer, decompile, or disassemble the Software or otherwise attempt to discover the source code of the Software or algorithms contained therein or create any derivative works from the Software, except as permitted by applicable law or under this Agreement;
      4. circumvent, or provide or use a program intended to circumvent, technological measures (such as license files) that control installation or use of the Software;
      5. remove any proprietary notices or labels on the Software. Any copies that Licensee are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on and in the Software;
      6. sublicense, license, sell, lease, lease or otherwise make the Software to any third party, except as expressly permitted under this Agreement; and
      7. allow any competitor of EXWAYZ to use, access or evaluate the Software.
    3. No Separation or Reuse of Components. Licensee may not break the Software up into components and install the components on separate computers under a given license. Each runtime license under this Agreement is limited to use with the specific Application on which the Runtime Environment is initially deployed. The Runtime Environment may not be used with a different application, even if the end user ceases use of the initial Application.
    4. Multiplexing. Multiplexing is the use of the Software to allow multiple users to access a Runtime Environment concurrently while sharing a session or otherwise consuming only a single license seat. Multiplexing is not permitted under this Agreement. Regardless of how many tiers of hardware or software exist between users and a Runtime Environment, Licensee’s Applications must always provide a separate persistent session for each user who accesses the Runtime Environment, and Licensee may only have as many sessions open at one time as the number of users authorized by EXWAYZ under which that Runtime Environment is used. Licensee may not combine transactions from multiple users onto a single session.
    5. Open Source. If Licensee use open-source software in conjunction with the Software, Licensee must ensure that this use does not: (i) create, or purport to create, obligations with respect to the Software; or (ii) grant, or purport to grant, to any third party any rights in and/or to the Software. In particular, Licensee may not use the Software in conjunction with an open-source software if such open-source software is licensed under a license that requires the Software or any modifications thereto to become subject to the terms of such license.
  4. SOFTWARE PROTECTION AND AUDIT
    1. The Software may include measures to control and monitor use of the Software, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this Agreement.
    2. Licensee must not (attempt to) uninstall or circumvent in any way the Software protection measures used by EXWAYZ to ensure the security of the Software and to verify that the Software is not used on any device other than the Designated Unit to which it is bound. Any attempt to circumvent such protection is prohibited and constitutes a material breach of this Agreement and will be prosecuted to the maximum possible extent.
    3. Should there be reasonable grounds for suspecting that the Customer has violated this License Agreement, EXWAYZ, or its authorized representative or licensors, shall have the right, during Licensee’s normal business hours and at any time during which the Software or Documentation are being utilized, upon at least the (10) business days advance written notice to audit and inspect Licensee’s utilization of such items (including by inspecting and having access to any Designated Unit, and any records kept in connection with this Agreement), in order to verify compliance with the terms of this Agreement.
  5. THIRD-PARTY SOFTWARE
    1. The Software may contain or may be accompanied by certain open source or other programs (“Third-Party Programs”) licensed by third party developers. The use of Third-Party Programs may be subject to special or additional terms and conditions, which deviate from what is stated herein and which require that Licensee is provided with and adheres to said terms and conditions. A list of terms and conditions for such Third-Party Programs can be viewed at https://www.exwayz.com/licenses/. On accepting this Agreement, Licensee also accepts the relevant third-party terms and conditions mentioned hereunder.
    2. Unless otherwise stated in said third-party terms and conditions, or where no additional terms and conditions are provided by the above-mentioned list, Licensee has the right to use third-party components only in association with the Software and only to such an extent as necessary for using the Software as intended according to this Agreement.
  6. DISTRIBUTION OF RUNTIME LICENSES
    1. Working with Channel Partners. Licensee may distribute Runtime Environment through distributors, Value Added Resellers (VARs) and/or Original Equipment Manufacturers (OEMs) and other resellers, provided that (i) each copy of the Runtime Environment that Licensee distributes is bundled with or incorporated into one of Licensee’s Applications, (ii) Licensee informs resellers that the Runtime Environment is licensed not sold, and (iii) Licensee requires resellers to comply with all of the obligations imposed on Licensee under this Agreement with respect to the Runtime Environment.
    2. Contracts with Customers. Before Licensee or a reseller provides a copy of the Runtime Environment to a Customer, Licensee or the reseller, as the case may be, must enter into a written, legally enforceable sublicense agreement with that Customer which:
      1. expressly affirms that the Runtime Environment is "licensed not sold";
      2. grants the Customer a non-transferable, non-exclusive license to install and execute the Runtime Environment for use with a single Application in accordance with the corresponding license that Licensee has purchased for that Customer;
      3. prohibits the Customer from distributing, sublicensing, leasing, renting, assigning, or otherwise transferring the Runtime Environment or any license file;
      4. prohibits the Customer from decompiling or disassembling the Runtime Environment except to the extent expressly permitted by applicable law and then only for the limited purposes specified in that law;
      5. prohibits the Customer from using the same activation code to install the Runtime Environment in any manner that exceeds the scope of the license under which the activation code is provided;
      6. effectively excludes for the express benefit of EXWAYZ all warranties and conditions, express and implied; and
      7. effectively excludes for the express benefit of EXWAYZ all liability for damages of any kind arising out of the use of Applications or the Runtime Environment.

Such sublicense agreements must name EXWAYZ as an express third-party beneficiary. Licensee must enforce such agreements with the same diligence that Licensee uses to enforce similar agreements for other software that it distributes, but in no event less than reasonable efforts. Customers need not physically sign the sublicense agreement unless a signature is required under applicable law to create an enforceable contract.

  1. Distribution restrictions. If Licensee distributes the Runtime Environment, then it must include any and all third-party license files.

Licensee shall not: (i) grant (or authorize resellers to grant) a Customer rights to use the Runtime Environment that are broader than the license Licensee has purchased for distribution to that Customer; (ii) distribute, sublicense, lease, rent, assign, or otherwise transfer the Software to any other party except as expressly permitted in this Agreement; or (iii) distribute any component of the Software that can be used to develop an Application based on the Software.

Licensee must provide a valid copyright notice in its name on each Application that it distributes with the Runtime Environment. Such distribution rights are personal to Licensee and cannot be sublicensed, assigned or otherwise transferred.

  1. Relationship with Customers. Licensee will be solely responsible for its Applications and any services provided to its Customers. EXWAYZ makes no warranty and has no obligation to provide support or other services to Licensee’s Customers. Licensee will defend and indemnify EXWAYZ from any claims or liabilities arising from or related to its Applications or Customers, including claims based on the performance or non-performance of the Runtime Environment. Licensee must enter into transactions with its Customers on its own account and not on behalf of EXWAYZ.
  2. Open Source. Licensee may not incorporate into any Application that it distributes to others any "open source" or other code that is licensed to Licensee by a third party under the condition or requirement that any programs incorporated into, derived from or distributed with such code be disclosed or distributed in source code form or distributed at no charge.