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End-User License Agreement

Support and Maintenance Agreement


End-User License Agreement
(EULA 2016/11)

EQUA SOFTWARE END USER LICENSE AGREEMENT

IMPORTANT: This software end user license agreement ("EULA") is a legal agreement between you (either an individual or, if purchased or otherwise acquired by or for an entity, an entity) and EQUA. Read it carefully before completing the installation process or using the software. It provides a license to use the software and contains warranty information and liability disclaimers. By installing or using the software, you are confirming your acceptance of the software and agreeing to become bound by the terms of this agreement. If you do not agree to be bound by these terms, then do not install or use the software and return the software to your place of purchase for a refund.

This EULA shall apply only to the software supplied by EQUA herewith regardless of whether other software is referred to or described herein.


1. DEFINITIONS

(a) "EQUA" means EQUA Simulation AB and its licensors, if any. EQUA is a Swedish corporation with its principal offices located at Råsundavägen 100, SE-169 57 Solna, Sweden, telephone +46 8 546 20 110. EQUA's web address is http://www.equa.se. EQUA can also be contacted by e-mail at info@equa.se.

(b) "Software" means only the EQUA software program(s), in each case, supplied by EQUA herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation.

(c) "Trial Version" means a version of the Software, so identified, to be used only to review, demonstrate and evaluate the Software for a limited time period. The Trial Version may have limited features, and will cease operating after a predetermined amount of time due to an internal mechanism within the Trial Version.

(d) "Educational Version" means a version of the Software, so identified, for use by students and faculty of educational institutions, only.

(e) "Classroom License" means an edition of the Educational Version for use in classrooms.

(f) "Network Version" means a version of the Software where a floating license system is used.

(g) “License Manager” means a license handling software running on a server, required in order to run the Network Version.


2. GRANT OF LICENSE

The licenses granted in this Section 2 are subject to the terms and conditions set forth in this EULA:

(a) You may install and use the Software on a single computer; OR install and store the Software on a storage device, such as a network server, used only to install the Software on your other computers over an internal network, provided you have a license for each separate computer on which the Software is installed and run. A license for the Software may not be shared, installed or used concurrently on different computers.

(b) If the Software is the Network Version, you may install the Software on any number of computers on your LAN (Local Area Network) at a single physical address, and the Software may be used concurrently on different computers, connected to the LAN, up to the maximum number of floating seats licensed.

(c) If the Software is the Network Version, with a specific description in the order confirmation of being a "WAN License", then, and only then, you may install the Software at multiple physical addresses and for any number of computers on your WAN (Wide Area Network), and the Software may be used concurrently on different computers, connected to the WAN, up to the maximum number of floating seats licensed.

(d) For Network Versions, a License Manager has to be installed and activated on a (physical or virtual) server that can be reached by all client computers running the Software. It is not possible to move the License Manager, and the licenses, to another physical or virtual server, due to e.g. load balancing. Doing this will trigger the cloning warning and the licenses will be automatically deactivated. All reactivation costs due to cloning will be held by the customer.

(e) If the Software is a Classroom License, then you may install and use the Software on class room computers and on the instructor computer for teaching purposes only. The Software may not be used for commercial, professional, commercial training or other for-profit purposes.

(f) You may make one copy of the Software in machine-readable form solely for backup purposes. You must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software. You may not sell or transfer any copy of the Software made for backup purposes.

(g) You agree that EQUA may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse EQUA for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.

(h) Your license rights under this EULA are non-exclusive.

(i) Mandatory Product Activation. The license rights granted under this Agreement may be limited to unless you supply information required to activate your licensed copy in the manner described during the setup sequence of the Software. You may need to activate the Software through the use of the Internet, e-mail or telephone; toll charges may apply. There are technological measures in this Software that are designed to prevent unlicensed or illegal use of the Software. You agree that EQUA may use those measures and you agree to follow any requirements regarding such technological measures. You may also need to reactivate the Software if you modify your computer hardware or alter the Software. Product activation is based on the exchange of information between your computer and EQUA. None of this information contains personally identifiable information nor can they be used to identify any personal information about you or any characteristics of your computer configuration.


3. LICENSE RESTRICTIONS

(a) Other than as set forth in Section 2, you may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network.

(b) You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software or any subsequent version thereof or any part thereof.

(c) Unless otherwise provided herein, you may not directly or indirectly sell, rent, lease, give, lend, license, sublicense, or redistribute the Software.

(d) Other than with respect to a Trial Version of the Software, you may only transfer your rights under this EULA with the written consent from the EQUA, and as part of a sale or transfer, provided you retain no copies, you transfer all of the Software (including all component parts, the media and printed materials, any upgrades, this EULA, the license keys, and, if applicable, all other software products provided together with the Software), and the recipient agrees to the terms of this EULA. If the Software is an upgrade, any transfer must include all prior versions of the Software from which you are upgrading. You may retain no copies of the Software. You may not sell or transfer any Software purchased under a volume discount. You may not sell or transfer any Trial Version of the Software.

(e) Unless otherwise provided herein, you may not modify the Software, or use macros or any other automation technologies that could extend the functionality of the Software, or create derivative works based upon the Software.

(f) Unless otherwise provided herein, you shall not (A) in the aggregate, install or use more than one copy of the Trial Version of the Software, (B) download the Trial Version of the Software under more than one username, (C) alter the contents of a hard drive or computer system to enable the use of the Trial Version of the Software for an aggregate period in excess of the trial period for one license to such Trial Version, (D) disclose the results of software performance benchmarks obtained using the Trial Version to any third party without EQUA's prior written consent, or (E) use the Trial Version of the Software for a purpose other than the sole purpose of determining whether to purchase a license to a commercial or education version of the software; provided, however, notwithstanding the foregoing, you are strictly prohibited from installing or using the Trial Version of the Software for any commercial training purpose.

(g) You may only use the Trial Version of the Software to review and evaluate the Software.

(h) You may receive the Software in more than one medium but you shall only install or use one medium. Regardless of the number of media you receive, you may use only the medium that is appropriate for the server or computer on which the Software is to be installed.

(i) You shall not use the Software to develop any application having the same primary function as the Software.

(j) In the event that you fail to comply with this EULA, EQUA may terminate the license and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination).


4. UPGRADES

If this copy of the Software is an upgrade from an earlier version of the Software, it is provided to you on a license exchange basis. You agree by your installation and use of such copy of the Software to voluntarily terminate your earlier EULA and that you will not continue to use the earlier version of the Software or transfer it to another person or entity unless such transfer is pursuant to Section 3.


5. OWNERSHIP AND RIGHTS

(a) The foregoing license gives you limited license to use the Software. EQUA retains all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any application you may develop), and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by EQUA.

(b) EQUA warrants that, to the best of its knowledge and information, it holds all right, title and interest in and to the Software and any and all underlying codes or other intellectual property contained within the Software.

(c) Intellectual Property Rights. The Software, the structure, organization and code embodied in the Software are the valuable and confidential trade secrets of EQUA and are protected by intellectual property laws and treaties. You agree to take all reasonable measures to protect EQUA's intellectual property rights and to abide by all applicable laws.


6. LIMITED WARRANTY AND DISCLAIMER

(a) Except with respect to any Sample Application Code and Trial Version of the Software, EQUA warrants that, for a period of ninety (90) days from the date of delivery (as evidenced by a copy of your receipt): (i) when used with a recommended hardware configuration, the Software will perform in substantial conformance with the documentation supplied with the Software; and (ii) the physical media on which the Software may be furnished will be free from defects in materials and workmanship under normal use.

(b) EQUA provides no remedies or warranties, whether express or implied, for any sample application code and trial version of the software. Any sample application code and trial version of the software are provided "AS IS".

(c) Except as set forth in the foregoing limited warranty with respect to software other than any sample application code and trial version, EQUA and its suppliers disclaim all other warranties and representations, whether express, implied, or otherwise, including the warranties of merchantability or fitness for a particular purpose. Also, there is no warranty of non-infringement and title or quiet enjoyment. EQUA does not warrant that the Software is error-free or will operate without interruption. No rights or remedies referred to in article 2a of the Uniform Commercial Code (UCC) will be conferred on you unless expressly granted herein.

(d) If applicable law requires any warranties with respect to the software, all such warranties are limited in duration to ninety (90) days from the date of delivery.

(e) No oral or written information or advice given by EQUA, its dealers, distributors, agents or employees shall create a warranty or in any way increase the scope of any warranty provided herein.

(f) Some countries and states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from country to country, and from state to state.


7. EXCLUSIVE REMEDY

Your exclusive remedy under the preceding is to return the Software to the place you acquired it, with a copy of your receipt and a description of the problem. Provided that any non-compliance with the above warranty is reported in writing to EQUA no more than ninety (90) days following delivery to you, EQUA will use reasonable commercial efforts to supply you with a replacement copy of the Software that substantially conforms to the documentation, provide a replacement for defective media, or refund to you your purchase price for the Software, at its option. EQUA shall have no responsibility if the Software has been altered in any way, if the media has been damaged by misuse, accident, abuse, modification or misapplication, or if the failure arises out of use of the Software with other than a recommended hardware configuration. Any such misuse, accident, abuse, modification or misapplication of the Software will void the warranty above. This remedy is the sole and exclusive remedy available to you for breach of express or implied warranties with respect to the software and related documentation.


8. LIMITATION OF LIABILITY

(a) Neither EQUA nor its suppliers shall be liable to you or any third party for any indirect, special, incidental, punitive, cover or consequential damages (including, but not limited to, damages for the inability to use equipment or access data, loss of business, loss of profits, business interruption or the like), arising out of the use of, or inability to use, the Software and based on any theory of liability including breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if EQUA or its representatives have been advised of the possibility of such damages and even if a remedy set forth herein is found to have failed of its essential purpose.

(b) EQUA's total liability to you for actual damages for any cause whatsoever will be limited to the amount paid by you for the software that caused such damage.

(c) Some countries and states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from country to country, and from state to state.

(d) The foregoing limitations on liability are intended to apply to the warranties and disclaimers above and all other aspects of this EULA.


9. BASIS OF BARGAIN

The Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability set forth above are fundamental elements of the basis of the agreement between EQUA and you. EQUA would not be able to provide the Software on an economic basis without such limitations. Such Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability inure to the benefit of EQUA's licensors.


10. CONSUMER END USERS ONLY

The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business.
The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.


11. THIRD PARTY ACKNOWLEDGEMENTS

(a) Certain software libraries included with the EQUA Software are free software and licensed under the terms of the GNU General Public License (GPL) and Lesser General Public License (LGPL). You may obtain a complete machine-readable copy of the source code for such free software under the terms of GPL and LGPL without charge except for the cost of media, shipping, and handling, upon written request to EQUA. The software is distributed in the hope that it will be useful, but without any warranty, without even the implied warranty of merchantability or fitness for a particular purpose. A copy of the GPL and LGPL is included with the EQUA Software.

(b) This Software has been licensed to embed portions of the ASHRAE IWEC Weather Files Version 2.0. ASHRAE assumes no responsibility for the inclusion of the ASHRAE IWEC Weather Files in this program. The entire risk as to the quality and performance of the ASHRAE IWEC Weather Files program and data is with the user. In no event will ASHRAE be liable for any damages including and without limitation, any lost profits or other incidental or consequential damages arising out of the Software.

(c) ASHRAE IWEC Weather Files, Copyright 2013 ASHRAE, www.ashrae.org. Used with permission.

(d) ASHRAE Weather Data Viewer 5.0, Copyright 2013 ASHRAE, www.ashrae.org. Used with permission.


12. AMENDMENTS

EQUA reserves the right to change, from time to time, the prices at any given time, as well as to make minor amendments to the terms and conditions governing the use of EQUA products and services and/or the contents, scope and method of delivery of the supplied products and services. Furthermore, EQUA reserves the right to make updates and/or upgrades and adaptations of products and services supplied by EQUA. These shall always preserve and contain such functionality and quality as can reasonably be expected from products and services the customer has purchased from EQUA.


13. GENERAL

These terms and conditions shall be governed by and construed in accordance with the laws of Sweden. Any dispute regarding the interpretation and/or application of this agreement shall on each occasion be settled by a Swedish court of law in accordance with Swedish law, and shall be conducted in either the Swedish or English language.

This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. The failure or delay of EQUA to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.

No EQUA dealer, agent or employee is authorized to make any amendment to this EULA.

If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect.

All questions concerning this EULA shall be directed to: EQUA Simulation AB, Råsundavägen 100, SE-169 57 Solna, Sweden.

EQUA and other trademarks contained in the Software are trademarks or registered trademarks of EQUA Simulation AB. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to use EQUA's or its licensors' names or any of their respective trademarks.

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Support and Maintenance Agreement
(SMA 2011/11)

This support and maintenance agreement ("Support and Maintenance") is a legal agreement between you (either an individual or, if purchased or otherwise acquired by or for an entity, an entity) hereinafter called "Licensee" and EQUA ("Licensor").

The Licensor will provide the Licensee with technical support and software maintenance under the terms of this agreement, valid from the Effective Date, as stated in the License Agreement. The parties agree to the following:


1. DEFINITIONS

(a) "EQUA" means EQUA Simulation AB and its licensors, if any. EQUA is a Swedish corporation with its principal offices located at Råsundavägen 100, SE-169 57 Solna, Sweden, telephone +46 8 546 20 110. EQUA's web address is http://www.equa.se. EQUA can also be contacted by e-mail at info@equa.se.

(b) "Software" means only the EQUA software program(s), in each case, supplied by EQUA herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation.

(c) "Extensions" are part of the Software and means add-on software programs that extends the functionality of the original Software.

(d) "Support" means assisting the Licensee in using, understanding and operating the Software in general terms, not pertaining to a specific project.

(e) "Maintenance" means Support, upgrades of the Software and access to EQUA Online, provided by EQUA to the Licensee during the agreement period.

(f) "EQUA Online" means a website on the Internet including additional documentation, movies, databases, and FAQs, related to the Software.

(g) "Project Support" means assisting the Licensee in the application of Software with respect to a specific project.

(h) "Network Version" means a version of the Software where a floating license system is used.

(i) "Error" means an error in the Software which significantly degrades the use of the Software and that has practical engineering consequences.

(j) "Normal Business Hours" shall mean 9.00 AM to 5.00 PM (CET), Monday through Friday except EQUA holidays

(k) "Bug-Fix Update" means the repair or replacement of object or executable code versions of the Software to remedy an error.


2. SUPPORT AND MAINTENANCE GRANT

(a) EQUA grants you Maintenance for the Software at no additional cost during a period of three (3) months, counted from the Effective Date. The three (3) months of free Maintenance is only included for the first time purchasing licenses, and not for any succeeding licenses.

(b) If you have purchased additional one (1) year Maintenance, then the anniversary date ("Anniversary Date") shall be counted three (3) months from the Effective Date.

(c) If you purchase additional Maintenance for your Software, then you are required to purchase additional Maintenance for all your Software licenses.

(d) If you purchase additional Software licenses, then the Maintenance Anniversary Date for any such licenses will be synchronized with the Anniversary Date of your existing Support and Maintenance agreement.

(e) To purchase Maintenance you must be registered with EQUA as the holder of a copy of the most current full version of the Software which you wish to place under this Support and Maintenance agreement.



3. SOFTWARE MAINTENANCE GRANT

(a) During the term of this Agreement, EQUA will provide the Licensee with Software updates, both minor and major upgrades, if any, including Bug-Fix Updates, new and updated features, documentation, database contents, and other relevant files and data related to the Software.

(b) EQUA will provide the Licensee with new major versions of the Software, at no additional cost, if officially released and made available to the public during the agreement period.

(c) EQUA will notify the Licensee about availability of Bug-Fix Updates and Software upgrades by an information window found within the Software. During the agreement period, all upgrades will be available for download for the Licensee through this information window.

(d) During the term of this agreement, EQUA shall use reasonable efforts to correct or provide a workaround for any Error in the Software. Upon identification of any Error, Licensee shall notify EQUA and provide EQUA with enough information to locate the Error. EQUA shall not be responsible for correcting any Errors not attributable to EQUA. Errors attributable to EQUA shall be those that are reproducible by EQUA on modified or unmodified Software. Errors attributable to Licensee's modification or Third Party Software or misuse of the Software will be billed at EQUA's standard service rates.


4. TECHNICAL SUPPORT GRANT

(a) EQUA will only provide Support for the most current version of the Software and for the immediately preceding version of the Software for as long as the Software is generally available to you, and as long as you have a valid Support and Maintenance agreement.

(b) EQUA shall maintain a support staff available by phone or e-mail during Normal Business Hours.

(c) EQUA shall answer reasonable questions relating to the use of the Software, providing that such can be reasonably replied to by telephone and that such are not in lieu of appropriate training.

(d) During the term of this agreement, EQUA will give you access to EQUA Online, made available through a connection within the Software.

(e) Project Support is not included in this agreement. If the Licensee requests such services, then EQUA's standard service rates will be billed.


5. LICENSEE RESPONSIBILITIES

(a) Language. All communications between EQUA and the Licensee shall be done in either the Swedish or English language.

(b) Licensee Assistance. Licensee agrees to provide EQUA reasonable access to all necessary personnel to answer questions about any problems reported by Licensee regarding the Software. Licensee also agrees to promptly implement updates, new releases of the Software and all Error corrections provided by EQUA under this Agreement.

(c) Contact People. For all Educational licenses the Licensee shall appoint a single or at most two individuals within Licensee's organization who are knowledgeable in the operation of the Software to serve as primary contacts between Licensee and EQUA and to receive support through EQUA's telephone support center. All of Licensee's support inquiries shall be initialized through these contacts.


6. EXCLUSIONS

(a) EQUA is not required to provide any support relating to problems arising out of: (i) Licensee's failure to implement all Bug-Fix Updates to the Software which are issued under the Agreement; (ii) any alterations or additions to the Software performed by parties other than EQUA; (iii) interconnection of the Software with other software products not supplied by EQUA except as expressly prescribed in the system documentation.

(b) Moreover, the Support does not include: (i) the installation and the use of hardware equipment; (ii) the use of the operating system; and (iii) the use of networks.

(c) Furthermore the Support does not include the following items listed below. Fees for these services will either be charged on a time basis or on an agreed fixed fee basis per item.

(i) Modifications required by governments.

(ii) Errors caused by hardware malfunctions and operating system related errors and problems, unless such can be reasonably handled by a single telephone call.

(iii) Errors and problems resulting from not maintaining adequate back-up, unless such can be reasonably handled by a single telephone call.

(iv) User education and training unless such can be reasonably enabled by a single telephone call.

(v) Consultation over hardware and for new programs or modifications to existing programs.

(vi) Site visits.


7. OTHER SERVICES

(a) In the event that Licensee requires or requests other services including additional user education and training, implementation assistance, installation training or hardware reconfiguration not covered by the original license agreement, such services will be provided in accordance with EQUA's standard rates.


8. OTHER CONDITIONS

(a) It will be Licensee's responsibility to verify the result of all program modifications or Bug-Fix Updates made by EQUA to assure that all calculations and data resulting from these modifications are correct.

(b) EQUA will not be liable or responsible for any losses or damages whatsoever which might at any time result from or arise from the use or operation of the programs covered under the Agreement, or the services provided herein.

(c) The Software as well as the modifications made under this Agreement shall at all times remain the property of EQUA. It is understood and acknowledged that the systems, specifications and any modifications contain information and programming techniques developed by EQUA which Licensee, by its acceptance shall agree not to divulge or in any other way grant to a third party, without the express prior written consent of EQUA.


9. TERM AND TERMINATION

(a) Maintenance shall be provided for one (1) year from the Anniversary Date and shall be extended each year for an additional one (1) year term.

(b) Licensee may terminate the Support and Maintenance Agreement at the end of the original term or at the end of any renewal term by giving EQUA written notice with at least 30 days notice.

(c) EQUA may terminate the Support and Maintenance Agreement at any time for convenience, in which case EQUA shall refund that proportion of the Maintenance fee you paid which equals the unexpired portion of the then current term.

(d) In the event Licensee fails to make payment pursuant to the Agreement or Section 10 below, or in the event Licensee materially breaches any of the provisions and herein described and such breach has not been cured within sixty (60) days of receipt of notice of breach, EQUA may suspend or cancel the Maintenance.


10. FEES AND PAYMENTS

(a) For each license of the Software, Licensee shall pay EQUA a fee per year, payable in advance, as specified in the order confirmation.


11. GENERAL

(a) These terms and conditions state the entire agreement regarding EQUA's provision of Maintenance to Licensee and may be amended only by a written amendment set forth on a separate document executed by authorized representatives of both parties.

(b) This Agreement is governed by the laws of Sweden.

(c) All disputes arising out of or in connection with this agreement shall be finally settled in a Swedish court.


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