Nuada CFD End User License Agreement

End User License Agreement - Updated January 2023

This is an end user licence agreement ("Agreement") being entered into by and between Thornton Tomasetti Ltd. (hereinafter referred to as "TT") and you, being the entity or individual who wishes to procure a licence to use the Nuada CFD software and any related documentation (collectively referred to herein as the “Software”) in order to use the DWT Product (as defined below) which TT and SimScale GmbH (company number HRB 201813) (“SimScale”) have developed jointly (hereinafter referred to as "Licensee"). The DWT Product is the digital wind tunnel application which combines TT’s applications which allow users to access and use a desktop-based 3D modelling software to perform wind analysis and SimScale’s cloud computing solution which provides simulation processing capabilities (“DWT Product”). Access to and use of the Software is conditional upon the Licensee having accepted all other terms and conditions applicable to the use of such account with SimScale to use the DWT Product and / or DWT Product (“Relevant Terms”). If Licensee does not agree to any Relevant Terms, Licensee shall not install the Software and shall promptly return any physical items (including written documentation). By installing the Software, Licensee accepts the terms of this Agreement and confirms that they have accepted all other Relevant Terms.

License

• 1.1. Licence Grant. In consideration of payment for the use of the DWT Product made by the Licensee pursuant to the Relevant Terms, TT grants to Licensee and Licensee accepts from TT throughout the Term (as defined in clause 3.1) of this Agreement a limited, non-exclusive, fully revocable, non-sublicensable and non-transferable (except as otherwise expressly provided) license (the "Licence") to download, install, and use the machine-code version only of the Software on a single designated computer station for the Licensee's internal business purposes only. The Licensee may only install and use the Software on an additional computer station if TT has provided written consent in advance.
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• 1.2. Title. TT owns and retains all right, title, interest and intellectual property rights, including, but not limited to, all patent rights, copyrights and trademarks, in and to the Software and all derivative works. The Software is licensed (not sold) to the Licensee and the Licensee has no rights in, or to, the Software other than the right to use it in accordance with the terms of this Licence. The Licensee has no right to access the Software in source code form.
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• 1.3. Restrictions. Except as otherwise expressly permitted herein, Licensee and its principals, agents and employees shall not (and shall not allow any third party) to: i) decompile, disassemble, or otherwise reverse engineer (except to the extent that applicable law prohibits reverse engineering restrictions) or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Software by any means whatsoever; ii) remove any product identification, patent, copyright, trademark or other notices; iii) provide, lease, rent, lend, sub-licence, use for timesharing, service bureau or hosting purposes or otherwise use or allow others to use the Software to or for the benefit of third parties, including, but not limited to, entities with which the Licensee or the principals of the Licensee are affiliated in any way; iv) translate, merge, adapt or vary the Software; v) modify or make alterations to, or, except to the extent expressly authorised herein, incorporate into or with other software or create a derivative work of any part of the Software; vi) disseminate information or analysis (including, but not limited to, benchmarks) regarding the quality or performance of the Software from any source, without prior written authorisation by TT; vii) use the output or other information generated by the Software (including, but not limited to, output describing the structure of a software program) for any purpose other than use by the Software in accordance with its specifications, (viii) share the application in a client-server or networked environment; ix) use the Software for any purpose that is unlawful, abusive, or obscene according to the relevant community standards, or in any way that damages the Software or TT''s property or interferes with or disrupts the operation of Software or TT''s network or any carriers'' networks or systems; x) use, transfer, locate, or move the Software in any manner that constitutes a violation of any applicable laws or regulations including, but not limited to, the Council Regulation (EC) 428/2009, as retained under the EU (Withdrawal) Act 2018 for Great Britain and the Sanctions and Anti-Money Laundering Act 2018''; or xi) register or otherwise file to establish trademark, copyright, or any other government-conferred intellectual property rights in any jurisdiction based upon or using the Software (including associated trademarks and other forms of commercial identification), and Licensee and its employees, staff, other workers, agents, consultants and subcontractors ("Affiliates") hereby agree that any attempts to register or otherwise file for such rights shall be null and void and shall constitute a material breach of this Agreement.
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• 1.4. Non-compete. To the maximum extent not prohibited by applicable law, neither Licensee nor any of Licensee's Affiliates, without the prior written consent of TT, shall be involved, directly or indirectly, in any other competing business relating to the manufacture, distribution, promotion, sale, or commercialisation of any software or products which perform(s) the same or similar function(s) as the Software; and shall not engage in such manufacture, distribution, promotion, sale, or commercialisation during the Term of this Agreement; provided, however, that this restriction shall not prohibit Licensee from licensing third-party intellectual property to use in conjunction with the Software or otherwise as needed to permit the Software to function as intended.

No Warranty

• 2.1. Licensee hereby accepts and agrees that this software is provided by TT ""as-is"" and with all faults accepted, with no warranties, express or implied, of any kind. No dealer, agent or employee of TT is authorised to make any modifications, extensions or additions to this section. TT makes no representation or warranty of any kind, whether express or implied (either in fact or by operation of law), with respect to the Software or other materials provided by TT or ''TT's authorised designee. TT expressly disclaims and Licensee hereby accepts such disclaimer of all implied warranties to the maximum extent permitted by law, including, but not limited to, any implied warranties of non-infringement, merchantability, fitness for a particular purpose, and validity of intellectual property rights. TT does not warrant that the Software is error-free or that operation of the Software shall be secure or uninterrupted.
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• 2.2. The Licensee hereby acknowledges and accepts that the Software has not been developed to meet the Licensee's individual requirements, including any particular cybersecurity requirements that the Licensee might be subject to under law or otherwise, and that it is the responsibility of the Licensee to ensure that the facilities and functions of the Software meet their requirements.

Term And Termination

• 3.1. Term. This Agreement shall commence on the date that the Licensee first installs the Software and shall continue until terminated in accordance with the provisions of this Agreement ("Term").
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• 3.2. Termination. TT may terminate this Agreement at any time on the provision of at least fourteen (14) days written notice.
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• 3.3. In addition, TT may terminate this Agreement immediately by written notice to the Licensee if Licensee commits a material or persistent breach of this Agreement and fails to remedy (if remediable) within 14 days after the service of written notice requiring the Licensee to do so.
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• 3.4. On termination of this Licence for any reason:
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  • 3.4.1. All rights granted to the Licensee under this Licence shall cease;
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  • 3.4.2. The Licensee shall immediately cease all activities authorised by this Licence and so certify to TT in writing; and
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  • 3.4.3. The Licensee must immediately and permanently delete or remove the Software from all computer equipment in the Licensee's possession, and immediately destroy or return to TT (at TT's option) all copies of the Software in the Licensee's possession, custody or control and, in the case of destruction, certify to TT that it has done so.
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• 3.5. Termination is not TT's exclusive remedy, and all other remedies shall be available to the TT, irrespective of whether this Agreement is terminated.

Limitation of Liability

Notwithstanding anything in this agreement to the contrary, TT shall not be liable or obligated with respect to any subject matter of this agreement or under contract, negligence, strict liability or any other legal or equitable theory i) for any amounts in excess in the aggregate of the fees paid to TT by Licensee with respect to the copies of Software that are the subject of the claim during the twelve-month period prior to the date the claim arose or could have arisen; ii) for any special, punitive, incidental or consequential damages (including, but not limited to, claims for any lost profits, cost of procurement of substitute goods, technology, services or rights); iii) for interruption of use or loss or corruption of data; or (iv) for any matter beyond ''TT's reasonable control. Nothing in this agreement limits any liability which cannot legally be limited, including but not limited to liability for death or personal injury caused by negligence and fraud or fraudulent misrepresentation.

General Provisions

• 5.1. Cumulative Remedies. The remedies under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies unless as otherwise expressly provided in this Agreement.
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• 5.2. Applicable Law. This Agreement, and any dispute arising out of or in any way relating to this Agreement or its formation (including any non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of England and Wales.
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• 5.3. Jurisdiction. Each party to this Agreement irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle and disputes (including non-contractual disputes or claims), which may arise out of or in any way relate to this Agreement or its formation and, for these purposes, each party irrevocably submits to the jurisdiction of the courts of England and Wales.
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• 5.4. Injunctive and Provisional Relief. The parties expressly agree that either party shall retain the right to seek relief in the courts for the purpose of obtaining injunctive and provisional. Further, Licensee expressly agrees and accepts that any breach of its obligations under this Agreement shall cause TT or its personnel, including employees, staff, other workers, agents, consultants and subcontractors irreparable harm and further, that on such basis, Licensee shall be entitled to seek injunctive and provisional relief from such courts.
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• 5.5. Import and Export Restrictions. Licensee agrees and acknowledges that certain technology licensed hereunder may be subject to importation and exportation regulation by agencies of the United Kingdom government, including, but not limited to, the UK Export Control Joint Unit ("ECJU"), the regulations of which prohibit the export or diversion of certain products and technology to certain countries or nationals of certain countries, and of other national and international authorities. Licensee warrants that it shall comply in all respects with the export restrictions applicable to any materials or technology provided hereunder and shall at all times otherwise fully comply with the ECJU and with all other applicable laws and regulations as may be in effect from time to time. To the extent that TT may require assistance from Licensee or its affiliates to demonstrate the adequacy of Licensee's compliance, Licensee shall timely provide such assistance as requested by, but without additional cost to, TT.
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• 5.6. Assignment. Licensee shall not assign or otherwise transfer any of its rights or obligations hereunder, including any assignment by operation of law as a result of the merger, acquisition, divestiture, or change of control of Licensee, without the prior written consent of TT and the original Licensee's fully divesting itself, himself or herself of all possession of the Software and all media and copies thereof. Subject to the foregoing, the provisions of this Agreement shall apply to and bind the successors and permitted assigns of the parties. TT may transfer its rights and obligations under this Licence to another organisation without the need to obtain consent from the Licensee, and such transfer shall not affect the Licensee's rights or obligations under this Agreement.
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• 5.7. No Partnership or Agency. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership, joint venture, franchise or joint venture between the parties. No employees, consultants, contractors or agents of one party are employees, consultants, contractors or agents of the other party, nor do they have any authority to bind the other party by contract or otherwise to any obligation, except as expressly set forth herein. Furthermore and unless otherwise agreed in writing, Licensee shall not be an agent of TT or the owner of the intellectual property rights herein licensed to Licensee. Neither party shall make any representation to the contrary, either expressly, implicitly or otherwise.
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• 5.8. No Third Party Beneficiaries. Licensee acknowledges and agrees that there are no third party beneficiaries to its rights under this Agreement and a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
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• 5.9. Headings. The descriptive headings of this Agreement are intended for reference only and shall not affect the construction or interpretation of this Agreement.
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• 5.10. Severability. If any provision or part-provision this Agreement is determined by any court of competent jurisdiction to be unenforceable such provision shall be interpreted to have the broadest application as shall be enforceable. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, which shall continue in full force and effect.
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• 5.11. Waiver of Rights and Remedies. Except as expressly provided under this Agreement, the failure of either party to insist, in any one or more instances, upon the performance of any of the terms, provisions or conditions of this Agreement or to exercise any right or remedy hereunder, shall not be construed as a waiver or relinquishment of the future performance of any rights or remedies, and the obligations of the party with respect to such future performance shall continue in full force and effect.
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• 5.12. Entire Agreement; Conflict of Terms. Except as the parties may otherwise agree in writing, this Agreement constitutes the complete, final and exclusive statement of the terms of the agreement among the parties pertaining to the licensing of the Software and supplants and supersedes all prior agreements, contracts, understandings, negotiations and discussions of the parties, whether oral or written, including end user license agreements earlier executed by Licensee. No modification or rescission of this Agreement shall be binding unless executed in writing by the party to be bound thereby, and the parties agree that a reasonably authenticated electronic communication between them may serve to constitute a writing for the purpose of this Agreement. In the event of any conflict between the terms and conditions of this Agreement and of any other agreement between TT and Licensee, the terms of this Agreement shall prevail. A later-executed End User Licence Agreement between the parties shall control to the extent of any conflict with this Agreement.
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• 5.13. Force Majeure. Either party shall be excused from any delay or failure in performance hereunder, except the payment of monies by Licensee, that is caused by reason of any occurrence or contingency beyond the party's reasonable control, including, but not limited to, acts of God, earthquake, floods, lightning, labour disputes and strikes, other labour or industrial disturbances, riots, war, acts of the public enemy, insurrections, embargoes, blockages, regulations or orders of any government, agency or subdivision thereof, shortages of materials, rationing, utility or communication failures, casualty, novelty of product manufacture or other unanticipated product development problems, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay, provided that such party shall give notice of such force majeure event to the other party as soon as reasonably possible.
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• 5.14. Authority. Each party represents that all corporate action necessary for the authorisation, acceptance and delivery of this Agreement by such party and the performance of its obligations hereunder has been taken to be effective prior to the execution of this Agreement.
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• 5.15. Indemnification. Licensee shall defend, indemnify and hold harmless TT and each of its officers, directors, employees and agents and the owner of the intellectual property herein licensed (collectively the "Indemnified Parties") against and in respect of any loss, debt, liability, damage, obligation, claim, demand, judgment or settlement of any nature or kind, including, but not limited to, all reasonable costs and expenses incurred arising out of, resulting from or based upon any pending or threatened claim, action, proceeding or suit that an Indemnified Party may suffer based upon Licensee's acts or omissions or upon any breach of any representation, warranty, undertaking or other obligation of Licensee under this Agreement.