4A/OP Software Package: License Agreement for commercial use

It is appropriate to recall that the 4A/OP software subject of the presents is the result of collaboration between the NOVELTIS Company and several partners.
Initially, development of the 4A software was performed by the LMD in partnership with the Centre National de la Recherche Scientifique (CNRS), the Ecole Normale Supérieure (ENS), the Université Pierre et Marie Curie and the Ecole Polytechnique.

Subsequently, development of 4A continued in collaboration with the Centre National d’Etudes Spatiales (CNES) and NOVELTIS to produce the 4A/OP software, subject of the presents, an operational product from 4A.
In this framework, the NOVELTIS Company has been entrusted with consolidating the software and distributing it. It has a vocation to authorise user licences for the software.

This licence will be granted, after agreement from the licensor and his partners, for a project of use of the software, duly defined in its duration and in its scope of use. The licensee must inform the licensor prior to the use he intends to make of the software in the registration form attached to the end of the present contract and made available on the http://www.noveltis.fr/4AOP/ Internet site.

A. CONTRACT SOFTWARE

The software suite known as 4A/OP is defined as follows: software allows the fast simulation of the radiative transfer in particular over the infrared range with a high spectral resolution or with the spectral resolution of simulated instruments.

The software provided includes a computer storage medium (CD-ROM, DVD or other) with the source code and associated databases. These databases are created exclusively by NOVELTIS.

The documentation relating to the software is provided with the software (installation manual, user manual, etc.) Furthermore, a graphic interface to make the software easier to use is provided with the software.

This software will hereafter be referred to as the CONTRACT SOFTWARE.

B. CONTRACT BRAND NAME

A brand name request for 4A/OP is pending.

It designates the name of the software subject of the contract. Similarly, a visual (logo) will be associated with the software. Filing for a trademark will also be performed.

This brand name will hereafter be referred to as the CONTRACT BRAND.

Article 1: Subject of the licence: user licence

a. Extent of licence

The licensor grants the licensee who so accepts, a non-exclusive and non-transferable right to use the software named under the brand name 4A/OP, as defined in the foreword.

Use of the software is limited to the scope previously defined by the licensee in the project presented to the licensor and accepted by him and his partners.

Furthermore, the licensee is availed of a “reverse engineering” right and a right to analyse the software.

The site for use of the software will be that of the licensee’s registered office. In the event of a change in the place of use of the software, the licensee must obtain the licensor’s written agreement.

The software will be used on a single computer by the person duly authorized for that purpose.

b. Legal provisions relating to the software

The present licence is granted and accepted with respect for the legal provisions relating to software.

In respect of article L.122-6-1, the licensee has the right to perform certain acts without having to request authorization from the author (from the licensor) “when they are necessary to allow the use of the software, in accordance with its intended use, by the person having the right to use it, including to correct errors”.

NOVELTIS recognises the possibility for the licensee to correct errors. On his side, the licensee undertakes to inform the licensor of any problem encountered when using the software and of all corrections and changes made to the software.

Article 2: Subject of the licence: user licence

The present contract is signed for the following country:

Article 3: Duration

The present licence is granted for a duration that will be the duration of the licensee project. This duration will come into effect as from the date the present contract is signed.

Prior notice of three months must be respected to inform the adverse party in the event of breach of contract. The prior notice shall take the form of a registered letter with acknowledgement of receipt.

Each new project of use of the software will generate a new contract according to new financial dispositions.

Article 4: Delivery of software

Delivery of the software shall take place once the contract has been signed within a period of ten days.

Article 5: Guarantees and responsibilities

Delivery of the software shall take place once the contract has be

The licensor personally grants the licensee the warranty. Furthermore, he guarantees the physical support for the software (replacement in the event of a defective product during a period determined of one month as from reception of the software).

The software was developed under the UNIX system and its operation complies with this system.

In no event, may the licensor be held responsible for direct or indirect damages such as loss of revenue or loss having as its origin or resulting from the present licence, neither shall he be held responsible for damages caused to persons or property distinct from the subject of the licence.

Article 6: Installation

Installation shall be implemented by the licensee himself by application of the user manual provided.

In the event of a problem related to installation of the software, the licensee may request assistance from the licensor.

An estimate will then be sent to the licensee for that intervention.

Article 7: Assistance, right to verification and training

a. Assistance

The licensor undertakes to provide to the licensee a minimum assistance concerning the use implementation of the software for a duration of one year.

This minimum assistance includes a hotline and response by e-mail to technical questions asked (not including questions of a scientific nature).

This minimum assistance will be insured for use of the software under the condition that:

• The software is not used outside of its recommended function.
• No modifications have been made to the software.

Beyond this one year period, the licensor will provide to the licensee, and on request, the annual pricing schedule for the minimum assistance.

The licensor will ensure comprehensive assistance (travel to the licensee’s premises or scientific evaluation) in addition to the minimum assistance on specific request from the licensee and in accordance with a pricing schedule defined in the appendix.

b. Right to verification

The licensor undertakes to provide to the licensee a minimum aThe licensor will have the right to check the software on site, directly on the licensee’s premises, to ensure that it is handled correctly.

c. Training

On request from the licensee, the licensor undertakes to ensure training on the licensee’s premises. This service will be covered by a specific estimate according to the nature of the intervention and the place for intervention.

Article 8: Maintenance

Maintenance planned for in favour of the licensee includes the following points:

• Correction of errors.
• For the duration of the contract, making new software versions and updates available where appropriate.
• On expiry of the contract, the licensor will inform the licensee of any existing new version of the software. The licensee will let him know whether he wishes to obtain this new version.

Article 9: Price

The present licence is granted and accepted in exchange for the payment of a purchase price and according to financial dispositions as defined in appendix.

The price of the licence includes the use of the software according to the scope defined in article 1 and during the contract period as well as the maintenance.

Article 10: Confidentiality

The licensee undertakes not to disclose any information that he may gather in the framework of execution of the present agreement, for the duration of the contract and after its expiry for a duration of ten years.

The licensee undertakes to keep as confidential all information relating to the software in the contract that the licensor provides to him and to take all precautions for such information to remain confidential.

This commitment shall be valid for as long as the said information is not generally known to be in the public domain, and this, event after expiry of the contract for a duration of ten years.

Article 11: Non-competition

The licensee undertakes to respect the copyright attached to the software subject of the contract.

He recognises NOVELTIS’ and its partner’s ownership of the software and the rights that are attached thereto and may not claim any right to the software and the brand name.

To this purpose, he especially undertakes not to develop or market software likely to compete with the software subject of the contract.

Furthermore, he undertakes not to file a brand name that is identical or similar to that of the contract.

Article 12: Use of the software and the brand name

The licensee undertakes to use the software in accordance with its intended use and as provided for in article 1.

In no event has the licensee the right to reproduce the software with the exception of a backup copy.

In the event of improvement to the software, of any change to the software including correction of errors, and of any suggestion for improvement, the licensee undertakes to inform the licensor thereof, who may benefit from such changes and improvements without any restriction in use and without any financial consideration. No right to intellectual property on such changes shall be recognized for the licensee.

In the event of publication of the results obtained through use of the software, the licensee shall inform the licensor thereof in writing before publication. In each of the publications, NOVELTIS and its partners shall be appropriately thanked and referenced in accordance with the referencing method provided for in the documentation supplied for that purpose. Where appropriate, NOVELTIS and its partners must also be offered co-authorship on publications.

In the event of publication of the results of research conducted thanks to the software, the licensee undertakes to mention the number of the software version used on all documents.

By publication, we mean any distribution of the scientific results obtained using the software, whether in the written press, on the Internet or by any other means of communication (conferences, working groups, etc.)

Finally, the licensee must in no event modify the brand name as it is shown in or on the software.

Article 13: Contract signed intuitu personae

The licence is granted individually.

The licensee shall refrain from expressly transferring the rights and obligations resulting from the present deed to third parties.

Article 14: Independence of contract clauses

All the clauses of this contract are independent of each other.

If a clause were to be declared null or invalid, this would not affect the validity of the other clauses in this contract.

If a clause were to be declared null or invalid, the parties would consult each other to make a change to the litigious clause.

Article 15: Cancellation

The present contract may be cancelled as of right by the licensor especially if the licensee does not respect one or other of the obligations that are imposed on him by the present contract.

In this case, the licensor may, after sending a registered letter with acknowledgement of receipt not followed by effect within thirty days as from reception of the claim, put an end to the present agreements by sending a second registered letter.

In the event of non execution by one of the parties of a contractual obligation, cancellation shall be implemented with the fault lying with the party being responsible for contractual obligation(s) not executed, except in the event of force majeure.

Article 16: Post-contractual obligations

On expiry of the contract or on the date of cancellation, the licensee undertakes to hand over to the licensor the software or to destroy it in front of usher, without being able to keep a copy.
The licensee then undertakes to refrain immediately from any use of the software and the brand name subject of the presents. Respect for this article must be formalised in writing by the licensee.

Article 17: Disputes-applicable law

The present contract is governed by French law.
Any dispute arising between the parties as to the interpretation and/or execution of the present contract shall, failing an amicable solution, be submitted to the courts of Toulouse to whom the parties give exclusive competence.

Article 18: Election of domicile

For the execution of the presents and their continuation, the parties elect domicile at their registered offices and addresses that remain as shown at the top of the presents.

Four options are available:

1. A non-commercial licence is granted free of charge with very limited assistance and maintenance.
2. A non-commercial licence is granted in exchange for the payment of a price that includes maintenance and minimum assistance.
3. A non-commercial licence for a use that is not exclusively internal (within the framework of a contract with a third party organisation to use the software for research purposes): the licence is granted in exchange for the payment of a price (that includes maintenance and assistance) + 10% of the price corresponding to the work package (WP) related to the use of 4A/OP in the contract. If the total price reaches the maximum threshold equal to the fixed rate of the commercial licence (b), the fixed rate is applied.

4. A commercial licence is granted in exchange for the payment of a purchase price that includes the use of the software according to the scope defined in article 1 and during the contract period as well as the maintenance. A fixed rate is applied and two options are available:
   1. In case of running 4A/OP within the framework of a given contract, the licence is granted for the duration of the presented project and the fixed rate is 6140 Euros.
   2. In the case of an intensive use and in the long term, a fixed rate of 12000 Euros is applied.