Evaluation License Agreement
Please read the following important notice as well as the following terms and conditions carefully before you click the below button "I accept" ("Acceptance Button").
The access to the Cipurse® Specification requires that you click the Acceptance Button, whilst acting to obtain the Cipurse® Specification in the interest and on behalf of a commercial entity ("User").
By clicking the Acceptance Button, you represent and warrant, in your own name and on your own behalf, that User is a commercial entity (whether incorporated or unincorporated), that you are duly authorized to act in the name and on behalf of User and that the data which you have entered on OSPT Alliance's website to identify yourself and User ("User Data") are true, accurate and complete ("Representation"). In addition, by clicking the Acceptance Button, you agree, in the name and on behalf of User, (i) to have read and understood this important notice, and (ii) to be authorized to enter into and be bound by this agreement with OSPT - Open Standard for Public Transportation Alliance e.V., a German association ("OSPT Alliance"), as set forth below in Sections 1.1 et seq. ("Agreement"). If you do not want to make the Representation in your own name and on your own behalf and/or if you do not want to enter into the Agreement in the name and on the behalf of User, then please click the below button "I do not accept" and this procedure will terminate without any rights and obligations being conveyed to you and/or User.
By clicking the Acceptance Button, User consents to the following Agreement with OSPT Alliance:
1.1 User recognizes and agrees that the Cipurse® Specification constitutes proprietary and confidential information of OSPT Alliance.
1.2 Please note that, by clicking the Acceptance Button, User does not automatically receive any license or right set forth in this Agreement since all licenses and rights to and of User under this Agreement are subject to the condition precedent of a successful export control check conducted by OSPT Alliance. This condition precedent shall be deemed fulfilled upon User's notification of the successful export control check and/or the provision of means to access the Cipurse® Specification in writing or via email by OSPT Alliance. It is only upon such notification and/or provision of means to User by OSPT Alliance that the licenses and rights to and of User under this Agreement enter into full force and effect.
Should the export control check render a negative result or should OSPT Alliance have reason to believe that User Data is insufficient or not accurate enough to conduct the export control check, OSPT Alliance reserves the right to withdraw with immediate effect from this Agreement. Should User not have received a corresponding notification and/or provision of means by OSPT Alliance within a period of ninety (90) days after clicking the Acceptance Button, OSPT Alliance shall be deemed to have been entitled to withdraw from the Agreement and to have executed such right.
2.1 Subject to the terms and conditions of this Agreement, OSPT Alliance hereby grants to User a non-exclusive, non-transferable, non-sub-licensable, royalty-free, limited license to use the Cipurse® Specification for internal evaluation purposes only. The license is limited to the country where User has its principal place of business according to the information given in the User Data ("Territory").
2.2 This license does not include the right to (i) modify the Cipurse® Specification and/or create derivative works based on the Cipurse® Specification; (ii) develop, have developed, manufacture, have manufactured and/or sell or have sold products and/or services that are compatible with the Cipurse® Specification.
2.3 Except as otherwise set forth in this Agreement, this license is granted subject to the following conditions: (i) that all pages of all copies must reproduce the copyright notice in full; (ii) that OSPT Alliance shall not have any responsibility or liability whatsoever to User or any other party resulting from or in connection with the use of the Cipurse® Specification; (iii) that User cannot and shall not rely on the accuracy, completeness or finality of the Cipurse® Specification; (iv) that OSPT Alliance's willingness to provide the Cipurse® Specification does not in any way convey or imply any responsibility for any product or service or development in accordance with the Cipurse® Specification and OSPT Alliance specifically disclaims any such responsibility to any party; and (v) User agrees to keep the Cipurse® Specification strictly confidential and only disclose the same to its employees who need to know the Cipurse® Specification for purposes of internal evaluation and who are bound by respective confidentiality obligations.
2.4 User acknowledges and agrees that OSPT Alliance is and shall remain the owner of the copyright (or the exclusive holder of any and all rights arising from copyright as the case may be) and of any other intellectual property right, (whether registered or unregistered) that may exist in the Cipurse® Specification and any subsequent copies thereof regardless of the form or media. The Cipurse® Specification may not be copied or disseminated to any third party, except that permission is granted to internally disseminate copies within the organization of User on a "need-to-know" basis and within the Territory only. For the avoidance of doubt, third parties in the aforementioned sentence also include User's affiliated companies in the meaning of 15 of the German Stock Company Act (Aktiengesetz). All rights that are not expressly granted herein are reserved by OSPT Alliance.
2.5 Since, under this Agreement, User is not allowed to develop, have developed, manufacture, have manufactured and/or sell or have sold products and/or services that are compatible with the Cipurse® Specification, User will have to enter into a separate agreement with OSPT Alliance if User wishes to do so.
2.6 User acknowledges and agrees that the Cipurse® Specification may reference or otherwise be subject to third-party intellectual property rights (including, without limitation, patents and utility models) that are required
- to use the products, methods and/or information described in the Cipurse® Specification; and/or
- to provide products and/or services developed based upon and/or in connection with the Cipurse® Specification.
User is solely responsible for identifying such third-party intellectual property rights and obtaining any licenses therein that may be required for use or provision described above.
3. User agrees and acknowledges that User's usage of the Cipurse® Specification does not create any relationship between OSPT Alliance and User and/or User's employees other than as set forth herein.
4. User is not entitled to use the name, trade names or trademarks of OSPT Alliance or its members in any advertising, promotion or communication in whatever form, except in the form specifically authorized by OSPT Alliance and then solely for purposes of identifying the Cipurse® Specification.
5. The license hereby granted is effective as from acceptance by User of these terms and shall remain effective until terminated by OSPT Alliance by notice to User with immediate effect. OSPT Alliance may, without limitation, terminate this license as of right, by notice to User, in case of User's failure to comply with any of the terms set forth herein, without prejudice to any other rights or remedies OSPT Alliance may have. At termination hereof, User shall cease any use of the Cipurse® Specification and shall destroy any copies thereof. A duly authorized officer of User shall confirm in writing such destruction to OSPT Alliance.
6.1 OSPT Alliance represents and warrants that it does not, at the time it provides the Cipurse® Specification, intentionally conceal any material defect to or defect in title in the Cipurse® Specification. Furthermore, in case OSPT Alliance promises to deliver any copy of the Cipurse® Specification where it has yet to acquire such copy, OSPT Alliance represents and warrants that such copy will not have any legal or material defect that will, upon such acquisition, be known to OSPT Alliance or be unknown due to gross negligence on part of OSPT Alliance.
6.2 EXCEPT AS SET FORTH IN SECTION 6.1 ABOVE, (I) OSPT ALLIANCE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE CIPURSE® SPECIFICATION; (II) OSPT ALLIANCE SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF ABSENCE OF ERRORS AND OMISSIONS, QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (III) OSPT ALLIANCE FURTHER SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO INTELLECTUAL PROPERTY SUBSISTING IN OR RELATING TO THE CIPURSE® SPECIFICATION OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO ANY AND ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT OSPT ALLIANCE HAS BEEN ADVISED, HAS REASON TO KNOW, OR IS OTHERWISE IN FACT AWARE OF ANY INFORMATION); AND (IV), ANY USE BY USER SHALL BE AT ITS SOLE RISK.
6.3 All claims of User resulting out of a material defect to the Cipurse® Specification become time barred one (1) year after the Cipurse® Specification has been made available to User.
6.4 The same prescription (Verjährung) applies to all claims of User resulting out of a defect in title to the Cipurse® Specification.
7.1 OSPT ALLIANCE SHALL ONLY BE LIABLE FOR DAMAGES RESULTING FROM THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. FURTHERMORE, OSPT ALLIANCE SHALL BE LIABLE TO THE EXTENT SET FORTH IN THE GERMAN PRODUCT LIABILITY ACT (PRODUKTHAFTUNGSGESETZ) OR TO THE EXTENT OF A GUARANTEE THAT OSPT ALLIANCE MAY FURNISH.
7.2 IN ALL CASES OTHER THAN THOSE SET FORTH IN SECTION 7.1, NEITHER OSPT ALLIANCE NOR ANY OF ITS MEMBERS, ASSOCIATE MEMBERS, OFFICERS, EMPLOYEES AND/OR AGENTS SHALL BE LIABLE TO A USER OR TO ANY THIRD PARTY FOR ANY DAMAGES UNDER ANY THEORY OF LAW, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, NOR ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF REVENUE, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER MONETARY LOSS, NOR ANY DAMAGES ARISING OUT OF THIRD PARTY CLAIMS (INCLUDING CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT) ARISING OUT OF THIS AGREEMENT AND/OR THE USE OF OR INABILITY TO USE THE CIPURSE® SPECIFICATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 To the extent not provided otherwise in Section 6, any claim for damages of User against OSPT Alliance, any of its Members, Associate Members, officers, employees and/or agents resulting out of or in the context of this Agreement shall become time barred one (1) year following the calendar year in which (i) the claim arose, and (ii) User obtained knowledge of the circumstances giving rise to the claim as well as of the identity of OSPT as debtor, or would have obtained such knowledge but for User's gross negligence. Paragraph (3) of Section 199 of the German Civil Code (Bürgerliches Gesetzbuch) shall remain unaffected.
8.1 User is not authorized to export the Cipurse® Specification out of the Territory.
8.2 Notwithstanding Section 8.1, User shall comply with all requisites for performance of the Agreement relevant for export control and anti-terrorism, including, but not limited, to all laws and regulations of the U.S., Germany and the EU. In particular, User shall not export, re-export or transfer any of OSPT Alliance's information, software or other technologies developed with or utilizing OSPT Alliance's technology, in violation of any applicable laws or regulations of the countries named above or any other country or regulatory regime having jurisdiction over an export, re-export or transfer of such information, software or other technologies.
8.3 Further, User hereby guarantees that (a) no military, paramilitary, police, intelligence agency or civil administrations of such institutions or other institutions acting on behalf of them are supplied with information, software or other technology which are subject to any applicable export licensing requirements and (b) it does not intend to use any information, software and other technology delivered by OSPT Alliance in or in connection with nuclear technology or weapons of mass destruction (nuclear, biological or chemical) and carriers thereof.
9.1 This Agreement shall be governed by and construed in accordance with the laws of Germany, without regard to any conflicts of laws provisions.
9.2 User may not assign this Agreement without the prior written consent of OSPT Alliance. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties and their respective legal successors and permitted assignees.
9.3 If any provision of this Agreement or a portion thereof is declared void, invalid or unenforceable for any reason, the void, invalid or unenforceable provision or portion thereof shall be deemed omitted and the remaining terms shall nevertheless be carried into effect.
9.4 The waiver by any party of any provisions contained herein and/or a breach thereof shall be in writing and shall in no way be construed as a waiver of any succeeding breach of such provision or a waiver of the provision itself.
9.5 Any violation of this Agreement will cause irreparable harm and a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, OSPT Alliance will be entitled to terminate this Agreement as of right with immediate effect and seek an injunction in all legal proceedings in the event of a threatened or actual violation of this Agreement.
9.6 Any dispute arising out of or in connection with this Agreement shall be submitted to the exclusive jurisdiction of the competent courts of Munich, Germany.
10. Cipurse® is a registered trademark of OSPT Alliance.