License Agreement / Guarantee / Limited Warranty

SignWare
Software Development Kit (SDK) for static and dynamic signature verification

License Agreement / Guarantee / Limited Warranty

By installing, copying, downloading, accessing or otherwise using the SignWare(r) product (hereinafter referred to as "SOFTWARE"), YOU (hereinafter referred to as "CUSTOMER") agree by contract (hereinafter referred to as "AGREEMENT") to be bound as a CUSTOMER of SOFTPRO GmbH - a limited liability company under German law - (hereinafter referred to as "SOFTPRO") to the terms of this Agreement as follows:

• 1. LICENSE TERMS
  
  • 1.1 SOFTPRO provides the CUSTOMER - by way of sale - with the SOFTWARE, which is described in the relevant documentation as regards its functionalities and its designated use, such documentation as contained in the Product Schedule, the offer and the SOFTWARE's online help, to the extent that such documents are enclosed to this Agreement as Attachments, as well as this Agreement as such (hereinafter collectively: the "Documentation"). The information contained in the Documentation is comprehensive and determines exclusively the contractually agreed upon functionalities of the SOFTWARE (hereinafter: the "Contractual Functionalities").
    
    The Parties agree that the Contractual Functionalities include in particular - but not limited thereto - the use of certain algorithms (e.g. neural networks and fuzzy logic technologies) within the SOFTWARE's verification engines (SIVAL, SIC MODAL, and ADSV), which implies that certain "decision points" are rated on the basis of mathematical probabilities which such algorithms have calculated. Therefore, the occurrence of so-called "false accepts" and "false rejects" is a possible result of operating such decision points and thus an integral part of the Contractual Functionalities.
    
    In the event that SOFTPRO provides the CUSTOMER with third party hardware components (e.g. Pen Pads), the contractually agreed upon functionalities of such hardware shall be exclusively determined by the relevant parts of the Documentation.
    
  • 1.2 SOFTPRO grants the CUSTOMER the non-exclusive right to use the SOFTWARE according to the user description contained in the Documentation for an indefinite period for the purposes of processing signatures and only for internal purposes on the suitable hardware-software environment as indicated in the Product Schedule. The Product Schedule determines the scope of simultaneous use of the SOFTWARE by single working units of the CUSTOMER (hereinafter: the "Single User"). Any extension of the number of Single Users requires an extension of the license that shall be granted upon separate agreement and subject to an additional license fee.
    
  • 1.3 The CUSTOMER is entitled to make a sufficient amount of copies of the SOFTWARE for back-up purposes only.
    
  • 1.4 The CUSTOMER is not entitled to grant sublicenses authorizing third parties to use the SOFTWARE.
    
  • 1.5 The CUSTOMER is not entitled to translate, modify, copy, decompile, reverse-engineer, or otherwise amend or change the SOFTWARE, except to the extent permitted by law.
    
  • 1.6 THE CUSTOMER is entitled to develop certain software products from the SOFTWARE (hereinafter: the "Applications") - provided the same are not software products similar to the SOFTWARE, including (but not limited to) development tools (Software Development Kits and Tools) - for the purpose of distributing such Applications to its own end-user customers (hereinafter: the "End-Customers"). In the context of such distributing, the CUSTOMER is only entitled to make available to the End-Customers such portions of the SOFTWARE, which the CUSTOMER delivers to the End-Customers together with the Applications and which are necessary in order to run the Applications (hereinafter: the "Runtimes"); this excludes in particular - without limitation thereto - the following components of the SOFTWARE:
    • (i) the Documentation of the SOFTWARE;
    • (ii) the sample programs delivered together with the SOFTWARE and other source-codes provided, if any; and
    • (iii) any such files which are not required to run the SOFTWARE, including in particular - without limitation thereto - any .C, .CPP, .LIB, .H, .MAK, .DEF, .TXT, .PDF, or .HLP files.
    The scope of use for the Runtimes is limited by the amount of Single Users (for which the definition of Section 1.2 shall apply accordingly) or by capacity volumes (e.g. data flow of the verification), which SOFTPRO further specifies in relation to Applications in the Product Schedule, unless the Parties agree otherwise.
    Because based on the SOFTWARE it is possible to develop Applications with a wide variety of uses and usage scenarios, the CUSTOMER agrees that SOFTPRO shall not be responsible for any claims of intellectual property infringement based on CUSTOMER's use of the SOFTWARE in his Applications.
    
  • 1.7 The Product Schedule states the amount and time of payment of all license fees due - including fees for the Runtimes - for the rights granted under this Agreement. To the extent the CUSTOMER cannot determine at the time of concluding this Agreement the amount of Runtimes it requires as of Section 1.6, the respective license fees for the Runtimes shall be determined in accordance with SOFTPRO's general price list, unless the Parties agree otherwise.
    The CUSTOMER shall have no rights to withhold and/or to set-off other than in respect of undisputed claims or claims assessed by final judicial court ruling. Any late payment shall bear interest of 8 (eight) percentage points above the European Central Bank base rate per year.
    
  • 1.8 To the extent indispensable (as is to be proven by the CUSTOMER) in order to achieve the interoperability of an independently created software program with the SOFTWARE or other software programs SOFTPRO will - upon written request of the CUSTOMER - make available the necessary information on interfaces of the SOFTWARE (hereinafter: "Necessary Interface Information") as required exclusively for such purpose and subject to payment of the then current administrative fee. The CUSTOMER is not entitled (i) to use Necessary Interface Information for other purposes than to achieve the interoperability of an independently created software program, (ii) to give on Necessary Interface Information to third parties, unless this is necessary for the interoperability of the independently created software program, or (iii) to use Necessary Interface Information for the development, production or marketing of a software program which is - in its entirety or in parts - substantially similar in its expression, or for any other act that infringes the copyright related to the SOFTWARE.
    
  • 1.9 The CUSTOMER shall (i) inform SOFTPRO upon its request as to whether and which extent he has made use of Necessary Interface Information within a period of time prior to such request as reasonably determined by SOFTPRO, and (ii) make all reasonable efforts to give evidence of compliance with Section 1.8 in respect of such use.
    
  • 1.10 In case the CUSTOMER intends to entrust a third party (hereinafter: the "Outsourcing Partner") with the use of the SOFTWARE exclusively for the purpose of operating the SOFTWARE for the benefit of the CUSTOMER (hereinafter: the "Outsourcing") the CUSTOMER shall inform SOFTPRO in advance of all relevant circumstances in detail and request for SOFTPRO's written consent, which SOFTPRO shall not unreasonably withhold. The Parties shall deem as good and valid reason to withhold such consent in particular - but not limited thereto - an Outsourcing to a competitor of SOFTPRO or reasonable doubts as to the trustworthiness of and/or the security measurements taken by the Outsourcing Partner.
    SOFTPRO is entitled to make its consent dependent on the payment of an appropriate license fee in case the Outsourcing (i) is effected in the context of a transfer of a business unit or a portion thereof; (ii) in the context of a divestiture of a business unit or a portion thereof; or (iii) in case the Outsourcing Partner provides in another manner services in relation to the CUSTOMER with the help of the SOFTWARE, unless such services are not of a totally subordinate nature without own added value for the CUSTOMER.
    
  • 1.11 The Parties agree with respect to Section 1.10 that (i) the Outsourcing Partner is not authorized to grant a third party access to the SOFTWARE, be it temporarily or permanently, (ii) the Outsourcing Partner shall only acquire such portion of rights to use the SOFTWARE granted to the CUSTOMER under this Agreement, which are indispensable in order for the Outsourcing Partner to perform the services due to the CUSTOMER in the context of the Outsourcing, and (iii) no further rights of whatever kind are acquired by the CUSTOMER and/or the Outsourcing Partner.
• 2. CONTROL MECHANISMS AND COPYRIGHT SIGNS
  • 2.1 SOFTPRO reserves the right to install mechanisms into or in connection with the SOFTWARE in order to control the number of Single Users.
    
  • 2.2 The CUSTOMER shall maintain all copyright, trademark and other proprietary notices on the delivered SOFTWARE and attach such notices to all copies he may make of the SOFTWARE.
    
  • 2.3 Further, the CUSTOMER shall attach to all Applications prior to its distributing to End-Customers the following notice: "Portions of this product were created using SignWare (c) 1998-2006, SOFTPRO GmbH. ALL RIGHTS RESERVED." This notice must be made in the language that the CUSTOMER uses for the user surface of the respective Applications.
    Please note: The year "2006" must be changed to the current year, if the current year is after 2006.
• 3. WARRANTY CLAIMS
  • 3.1 SOFTPRO warrants that the SOFTWARE is free of any third party rights that could adversely affect the rights of use granted under this Agreement.
    
  • 3.2 SOFTPRO warrants that the SOFTWARE does not provide any significant diversions from the Contractual Functionalities at the time of delivery, and provided that the SOFTWARE is used in conformity with its designated use.
    
  • 3.3 In the event that the SOFTWARE - provided a designated use thereof - (i) provide significant diversions from the Contractual Functionalities, or (ii) infringes third party rights within the scope of Section 3.1, the SOFTWARE shall be regarded as defective (hereinafter: the "Defect"). Any insignificant diversion from the Contractual Functionalities shall remain irrelevant for the purposes of this Section 3. The SOFTWARE shall be deemed to contain such insignificant diversion if the designated use of the SOFTWARE is only marginally affected in a manner that the CUSTOMER can work around the diversion with own reasonable additional efforts.
    
  • 3.4 In case of a Defect, SOFTPRO shall remove such Defect by way of re-performance within a reasonable period of time, at its cost and its choice through repair or by replacing the SOFTWARE or any of its defective parts with an alternative, equivalent solution.
    
  • 3.5 In the event that SOFTPRO does not achieve to remove the Defect within a reasonable period of time the CUSTOMER is entitled either to withdraw from this Agreement, or to set a final deadline for re-performance by SOFTPRO. If SOFTPRO fails to meet such ultimate deadline, SOFTPRO is entitled to refuse further attempts of re-performance.
    
  • 3.6 The CUSTOMER shall determine within a reasonable period of time upon SOFTPRO's request whether it will either withdraw from this Agreement or claim for damages respectively reimbursement of expenses in case SOFTPRO fails to re-perform. In case the CUSTOMER claims for damages respectively reimbursement of expenses SOFTPRO's obligation hereunder shall be limited to a maximum of 50% of the contractual value of this Agreement; in addition, Sections 5.1 through 5.3 as well as 5.5 and 5.6 shall apply accordingly to SOFTPRO's obligation hereunder. In case the CUSTOMER withdraws from this Agreement the rights to use the SOFTWARE shall terminate automatically without any further declaration by SOFTPRO.
    
  • 3.7 The CUSTOMER's warranty claims under this Agreement are limited to a period of 12 months following delivery of the SOFTWARE. The CUSTOMER shall have no right to depreciate the remuneration paid under this Agreement
    
  • 3.8 The CUSTOMER shall have no rights under Sections 3.4 through 3.6 if the Defect has been caused by any alteration or inappropriate use of the SOFTWARE by the CUSTOMER, if the media or data carrier for the SOFTWARE has been damaged by accident, abuse or misapplication, or if the Defect arises from a use of the SOFTWARE in conjunction with a software for which it was not designated to be used as set out in the Documentation.
    
  • 3.9 The descriptions and specifications contained in the Documentation neither represent a guarantee as to the functionality of the SOFTWARE nor do they constitute any other kind of guarantee, unless SOFTPRO has expressly qualified in writing such descriptions and/or specifications as being guaranteed.
    
  • 3.10 The above warranties are comprehensive and the CUSTOMER shall have no further rights in relation thereto.
    
  • 3.11 Sections 3.1 through 3.10 shall apply accordingly in relation to hardware components provided pursuant to Section 1.1 sentence 3, provided that SOFTPRO shall be authorized to render re-performance through the respective third party manufacturer, provided that such involvement of the third party manufacturer shall not limit or reduce SOFTPRO's obligations under this Agreement.
    
• 4. TEST LICENSE
  
  • 4.1 In the event that the CUSTOMER opts in the Product Schedule for a license limited in time and for testing purposes only (hereinafter: the "Test License"), the CUSTOMER shall have - for the period as specified in the Product Schedule following the delivery of the SOFTWARE (hereinafter: the "Test Period") and free of charge - the right to use the SOFTWARE in accordance with the rights and limitations as set forth in Sections 1.2 to 1.6, 1.8 and 1.9, for own testing purposes only.
    
  • 4.2 The CUSTOMER accepts that SOFTPRO hereby disclaims any and all warranties as under Section 3 and/or as under statutory law in respect of the SOFTWARE for such Test Period.
    
  • 4.3 The Parties agree that Sections 5, 6, and 7 shall apply accordingly during the Test Period.
    
  • 4.4 At the end of the Test Period, the CUSTOMER shall remove the SOFTWARE from all media of filing, storing and/or copying, and - at the choice of SOFTPRO - destroy or return to SOFTPRO the SOFTWARE including all copies thereof and provide SOFTPRO with a written confirmation that the CUSTOMER has fulfilled all his obligations hereunder, unless the Parties agree in writing that the CUSTOMER acquires a license to use the SOFTWARE for an indefinite period against payment of the respective license fees. If the SOFTWARE was protected by a dongle, the CUSTOMER shall also return the dongle to SOFTPRO at the end of the Test Period.
    
• 5. LIMITATION OF LIABILITY
  
  • 5.1 SOFTPRO assumes unlimited liability for damages the CUSTOMER has incurred due to the performance of this Agreement, which have been caused by the willful or grossly negligent conduct of SOFTPRO or its agents.
    
  • 5.2 In addition, SOFTPRO is liable to the extent of the typically foreseeable damage only for such damages that have been caused by any other negligent breach of a substantial contractual duty by SOFTPRO or its agents. All further liability for negligent conduct is excluded.
    
  • 5.3 These aforementioned limitations apply irrespective of their legal basis, in particular with regard to any pre-contractual or auxiliary contractual claims. The limitations shall not apply, however, to any mandatory liability under the German Product Liability Act, nor to any liability in respect of personal injuries that are caused by SOFTPRO's willful or negligent conduct. SOFTPRO does not assume any liability for guarantees independent of its willful or negligent conduct.
    
  • 5.4 The Parties agree that SOFTPRO shall be liable in each individual case of liability under Section 5.2 only up to a maximum of 1 (one) time the total amount of license fees - including such license fees from further product schedules to which the Parties declare this Agreement to apply - that the CUSTOMER shall pay within 2 (two) years following the conclusion of this Agreement, provided, however, that such liability shall in no event exceed the amounts that are covered by SOFTPRO general liability insurance, which is limited to an amount of Euro 1,5 million per occurrence of personal injuries and damages to property, and which is further limited to an amount of Euro 1 million for financial losses.
    
  • 5.5 The CUSTOMER is obligated to make a reasonable amount of backup-copies. Failure to comply with this obligation will be considered as contributory negligence.
    
  • 5.6 The Parties agree that - with the exception of willful or grossly negligent conduct pursuant to Section 5.1 - SOFTPRO assumes no liability for damages arising from the occurrence of computer viruses when transmitting the SOFTWARE to the CUSTOMER by electronic or other means, unless SOFTPRO would have - using reasonable efforts - been able to identify and remove those computer viruses during the final test before transmitting the SOFTWARE.
    
• 6. CONFIDENTIALITY
  
  • 6.1 The information provided in the SOFTWARE (which includes its related documentation) are trade secrets of SOFTPRO (hereinafter: the "Confidential Information"). The CUSTOMER is obligated to take all reasonable measures to prevent that Confidential Information is disclosed to third parties and is obligated to ensure that its confidentiality is protected and maintained. The CUSTOMER is further obligated to inform SOFTPRO immediately of any unauthorized disclosure of Confidential Information.
    
  • 6.2 The obligation to confidentiality shall not apply if SOFTPRO has disclosed the Confidential Information publicly without any reserve, or if the CUSTOMER has obtained this information from a third party without any restriction as to its confidentiality, or to the extent that the Confidential Information is made publicly available otherwise without the CUSTOMER being responsible thereto.
    
• 7. FORFEITURE
  
  • 7.1 The right to use the Software is transferred subject to the condition that the CUSTOMER looses all his rights under this Agreement if the CUSTOMER comes into breach of any substantial contractual duty under this Agreement (hereinafter: the "Forfeiture").
    
  • 7.2 In the case of Forfeiture the CUSTOMER is obligated to remove the SOFTWARE from all media of filing, storing and/or copying, and - at the choice of SOFTPRO - to destroy or to return to SOFTPRO the SOFTWARE including all copies thereof and to provide SOFTPRO with a written confirmation that the CUSTOMER has fulfilled all his obligations hereunder.
    
• 8. MISCELLANEOUS
  
  • 8.1 The Agreement is governed by German law with the exception of the United Nations Convention on the International Sale of Goods. The competent courts of Böblingen shall have exclusive jurisdiction with regard to any disputes arising from this Agreement.
    
  • 8.2 This Agreement including its Attachments represents the entire agreement between the Parties in respect of the sale of the SOFTWARE. Any oral side agreements, understandings or covenants, including in particular any and all declarations made in the context of negotiating and/or performing this Agreement that regard the functionality of the SOFTWARE shall have no legal effect and are not part of this Agreement, unless they are contained in the Documentation. Any changes or amendments to this Agreement must be made in writing.
    
  • 8.3 Deviating general terms and conditions, including those that may be enclosed by the CUSTOMER to an order, do not apply if not agreed upon otherwise in writing by the Parties.
    
  • 8.4 In the event that any provision of this Agreement shall be or become invalid or unenforceable or if this Agreement should be incomplete, the remaining provisions of this Agreement shall continue in full force and effect. In such case, the valid provision which comes as close as possible to the economic intent of this Agreement shall apply and substitute the invalid provision or remove the incompleteness of this Agreement.
    

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