License agreement

Burgdorf, September 8, 2009

Preamble

The end user for the purposes of this contract shall be the party expressly agreeing to its terms for this installation process and thus carrying out this installation process. In the event that the installation is performed pursuant to an employment contract, the employer shall be considered to be the end user.

In the event that the end user already has a valid license agreement with GEOCOM for the GEOCOM products which are to be installed, the acceptance of this agreement shall not have any additional legal consequences.

Otherwise, the agreement shall take effect upon the acceptance of the end user (placement of a checkmark in the corresponding box) and the completion of the installation.

This agreement is therefore directed at the following end users in particular:

1. Existing customers (hereinafter referred to as: customers) of GEOCOM who have legally acquired the rights of use for the GEOCOM products, but who have not yet signed a license agreement.
2. End users (hereinafter referred to as: test users) who, within the framework of the technical protection of GEOCOM products, are in possession of a license file that was created by GEOCOM for test purposes and which has been given time restrictions; the software has to be deinstalled and removed from any computer and storage device after the expiration of the evaluation period.
3. Users which obtained a personal development license through the GEOCOM Developer Network (GDN) program. This license is only for the development of new GEONIS extensions. The license is authorized to a single, named person and is non-transferable to any other person. The license can not be used in any way for production work including but limited to the creation or maintenance of production data, or the analysis of such data.
4. All end users who have come into possession of the GEOCOM products which are to be installed without contacting GEOCOM (hereinafter referred to as: factual end users). The factual end users acknowledge herein to have unauthorized possession of GEOCOM products and agree to immediately contact GEOCOM in order to obtain an appropriate license for the acceptable legal use of the installed software according to the terms and conditions laid out in this agreement.

1. Objective of the agreement / General information

1. This agreement regulates the relationship with regard to intangible property rights and other aspects associated with the same between GEOCOM and the customer for all software modules on hand at the customer as well as the accompanying media and/or application modules and the documentation (hereinafter referred to as: GEOCOM products) for which GEOCOM has intangible property rights (and in particular the copyright) and for which the individual transaction has been subjected to this agreement. In terms of general licensing terms, this agreement is generally only to be concluded once between GEOCOM and the customer and shall be valid for all individual transactions concluded between the parties to the agreement. The individual transactions which are subject to this agreement can be determined from the individual offers.
2. In this agreement, software modules shall be understood to mean machine-readable object code or parts thereof (including any program libraries that are dynamically integrated).
3. In this agreement, media and/or application modules shall be understood to include all definition and configuration files, regardless of the formats used, all interface definitions, data models, fonts and ESRI styles, as well as all materials supplied to the customer which serve the operation, configuration or enhancement of the software modules.
4. GEOCOM products, including protection mechanisms pertaining to the product license, will only be supplied to customers on the basis of individual transactions which are subject to this agreement.
5. With the exception of guarantee claims, the customer shall be considered to have implicitly accepted that each delivery is complete (type and quantity of the products delivered) in the event that GEOCOM has not received a justified written complaint concerning said delivery within 30 days of its receipt by the customer. The delivery note for the delivery in question shall be considered sufficient proof of acceptance.

2. Formal requirements

1. All amendments to this agreement and/or the extraordinary termination thereof must be made and/or stipulated in writing. The requirement for such changes to be made in writing may only be dispensed with in writing.
2. Insofar as a reference is made within this agreement to specifications in writing, and nothing to the contrary has been agreed upon for the case in question, then this shall be construed to mean documents containing the legally binding signatures of both parties to the agreement.
3. In the event that the documents in question are unilateral communications from one contracting party to the other which are based on this agreement, or for which provision is made within this agreement, then only the legally-binding signature of the party issuing the communication shall be necessary for compliance with the requirement that it be in writing.

3. Relationship to third parties with intangible property rights

1. Some GEOCOM products are based on products to which third parties (hereinafter referred to as: third party providers) have intangible property rights, and in particular the copyright.
2. Insofar as the third party provider is the Environmental Systems Research Institute of Redlands, CA, USA (hereinafter referred to as: ESRI), the customer shall be obligated to obtain a separate license agreement (hereinafter referred to as: master license agreement) with ESRI for its products, insofar as such an agreement does not already exist between the customer and ESRI. GEOCOM shall serve only in the role of intermediary in this regard.
3. ESRI products can be licensed in the following forms:
   • Full license
   • OEM license
4. Insofar as OEM licensing has been agreed in the offer in question, the customer shall be subject to the following restrictions and/or obligations:
   • The customer accepts that, as a result of the licensing model that has been chosen, they are only allowed to obtain extensions for which it is also possible to procure an OEM license from ESRI.
   • The customer shall undertake to use the ESRI products only to the extent that is necessary in order to properly utilize the GEOCOM products. The customer shall be prohibited from using the OEM-licensed ESRI products independently or separately from the GEOCOM products.

4. Rights of use for GEOCOM products / Protection mechanisms

1. The customer shall be granted the rights of use specified in the following items for the GEOCOM products. This listing is exhaustive. Any and all rights for GEOCOM products not specified herein shall remain with GEOCOM.
2. Should the customer have any doubts regarding the legality as defined in this agreement of any current or desired forms of use, they shall undertake to submit a corresponding query in writing to GEOCOM.
3. GEOCOM grants the customer the non-exclusive and non-transferable right of use to the GEOCOM products for the time period as defined within the offer in question.
4. This right of use covers all actions necessary for proper utilization, in particular the installation, proper use as such and the creation of one backup copy for each licensed GEOCOM product.
5. A transfer shall be considered to be any usage-relevant agreement with other legal or natural entities concerning GEOCOM products, sublicensing in particular. Usage by external personnel in conformance with the terms of the agreement is accepted, insofar as this usage is solely in the interest of the customer and the customer has legally obligated the external employee in writing to comply with all obligations arising from this agreement. The transfer to subsidiaries within a corporate structure is also accepted, insofar as the customer has legally obligated the subsidiary in writing to comply with all obligations arising from this agreement.
6. The license quantities for the GEOCOM products are specified in the individual offers.
7. Some GEOCOM products (the software modules in particular) are outfitted with technical protection (hereinafter referred to as: protection) and are supplied with this protection. This protection generally comprises the following components:
   • Hardware key (hereinafter referred to as: dongle)
   • License file
   • Software (in particular license server software)
8. Unless otherwise instructed by GEOCOM, the customer shall not be permitted to manipulate these components in any way.
9. The transfer prohibition shall correspondingly apply for the dongles supplied to the customer in accordance with the delivery notes in question.
10. The customer shall undertake to do everything within reason to protect the dongles and license files from unauthorized access by third parties.
11. In the event that a defect should in time become evident with one or more of the dongles supplied, GEOCOM shall undertake to replace the defective dongles as quickly as possible upon receipt of a written request and against payment of a processing fee to cover the costs entailed and the replacement costs.
    1. In the event that it is already evident that the dongles are defective at the time of delivery, the replacement delivery shall be made at GEOCOM's expense. In the event that GEOCOM has not received a written complaint within 30 days of the arrival of the dongles to the customer, these shall be considered to be free of defects.
    2. The customer acknowledges that GEOCOM may in some circumstances need to reorder from their supplier, and that GEOCOM has no direct influence over the delivery periods of its supplier.
    3. The customer shall undertake to return the defective dongles which are to be replaced to GEOCOM at their own cost by registered post within 10 days of the receipt of the replacement delivery.
    4. In the event that the dongles do not arrive or do not arrive on time due to circumstances which are the responsibility of the customer, the customer shall owe GEOCOM the proper license fee for the licenses contained in the replacement delivery in accordance with the original offer.
12. In the event that one or more dongles are lost by the customer, the customer shall be obliged to pay GEOCOM a processing fee for any replacement delivery as well as the full license fee for the licenses contained in the replacement delivery.
13. The decompilation of GEOCOM products to reveal the source code (hereinafter referred to as: decompilation) or the utilization of the same shall only be permissible in the event that GEOCOM should go bankrupt.
14. The documentation which is provided to the customer may only be reproduced by the customer with the express written consent of GEOCOM; if this consent is forthcoming, the original trademarks must be retained in their original form.
15. Each infringement of the obligations contained within Items 4e, 4h or 4m shall result in the customer being liable to pay GEOCOM a contractual penalty of 100,000.00 Swiss francs. Payment of the contractual penalty does not release the customer from their corresponding obligations. This shall not affect any damage claims in this regard, although contractual penalties can be offset against these.

5. Extraordinary termination of the agreement

1. GEOCOM has the right to withdraw from this agreement with immediate effect by notifying the customer in writing in the event that the customer does not make payment, in spite of being given a reminder and in spite of a suitable grace period.
2. GEOCOM has the right to withdraw from this agreement with immediate effect by notifying the customer in writing thereof if the customer violates one or more of the provisions contained in Items 4e, 4h, and/or 4m.
3. In the event of the extraordinary termination of this agreement, all of the GEOCOM products which have already been supplied to the customer are to be dealt with as follows:
   1. All GEOCOM products which have been physically delivered are to be returned to GEOCOM within 10 days of written notification. Confirmation of this circumstance, and in particular its completeness, is to be submitted to GEOCOM in writing.
   2. All GEOCOM products on hand in electronic form at the customer, in particular software which has been installed or which is suitable for installation (or parts thereof) and the associated media, as well as any documents supplied electronically, including all backup copies thereof, are to be irrevocably deleted within 10 days of written notification. Confirmation of this circumstance, and in particular its completeness, is to be submitted to GEOCOM in writing.
4. Each infringement of the obligations contained within this item shall result in the customer being liable to pay GEOCOM a contractual penalty of 100,000.00 Swiss francs. Payment of the contractual penalty does not release the customer from their corresponding obligations.
5. The extraordinary termination of this agreement shall also result in the termination with immediate effect of any maintenance contracts in existence between the customer and GEOCOM. Any maintenance fees which have already been paid shall be forfeited.

6. Material warranty / Guarantee

1. For one month following the delivery of the products, GEOCOM shall guarantee them to be free of any deviations as defined in the product description (hereinafter referred to as: defects). Otherwise GEOCOM will replace them free of charge (hereinafter referred to as: guarantee).
2. The customer shall undertake to inform GEOCOM in writing and in a timely fashion of any defects, and shall do so in a comprehensible manner.
3. In order for such notification to be comprehensible, it is particularly necessary that an exact description be provided of the operating conditions (hardware and software used) and of the specific procedure that was followed that resulted in the error, so that it is possible to exactly reproduce the error.
4. GEOCOM shall undertake to rectify the defect in question within a time period that corresponds to the effort necessary.
5. GEOCOM does not offer a guarantee that the products can be used free of errors uninterruptedly in all combinations desired by the customer with any data, IT systems or other programs, nor does it guarantee that the correction of program errors will not result in other program errors.

7. Warranty of title

1. GEOCOM declares that it has itself developed the products which it is providing / transferring to the customer within the framework of this agreement and that it is in possession of the corresponding intellectual property rights, in particular the copyright, or that it has acquired the corresponding rights to the use and sale of these enhancements or parts thereof from their legal owners and that no prior third party rights are known to it at the time of the conclusion of this agreement.
2. In the event that a third party should present a credible and sufficiently substantiated case against the customer based on the infringement of their alleged copyright to the products, GEOCOM will conduct the defence at its own cost and shall assume any costs or damage payments resulting for the customer from a legal verdict in this regard, if...
   1. the customer immediately notifies GEOCOM of this circumstance in writing, and...
   2. GEOCOM is given legal authorization by the customer to conduct the defense, including the power to reach a legal settlement, and...
   3. the customer offers GEOCOM all reasonable support, and...
   4. the basis of the third party claim is that the product infringes upon an existing copyright.
3. If, in the opinion of GEOCOM, the products might be infringing upon the copyrights of a third party, GEOCOM shall be entitled at its own discretion either to carry out changes in order to eliminate the copyright infringement, or to enter into negotiations with the aim of acquiring the corresponding copyright from the third party with a better claim to the copyright. Insofar as these measures do not lead to the desired result with appropriate and reasonable effort, and the copyright infringement is upheld legally, the customer shall have the right to withdraw from this agreement with immediate effect upon the provision of notification in writing. The customer shall owe GEOCOM a pro-rata fee for the effective period of utilization.
4. GEOCOM shall be released from the aforementioned obligations in the event that the copyright claim, or the credible and substantiated assertion of such (hereinafter referred to as: claim) is based on products to which the customer has made modifications and these modifications are the basis for such claim and/or the customer has utilized the products in conjunction with other programs or data and/or under other circumstances than those defined in the conditions of use and the claim is based on these circumstances.

8. Liability

1. The parties to this agreement shall be mutually liable for all direct damages to persons or property arising within the framework of this agreement up to a maximum amount of 1,000,000 Swiss francs per damage event.
2. The degree of guilt defined as "slight negligence" shall be excluded insofar as this is legally permissible and irregardless of the legal grounds.
3. GEOCOM shall not be liable for any damages resulting from the usage of the products it has supplied in contravention of their specified conditions of use. GEOCOM shall also not be liable in the event that the products it has supplied are used on unsupported hardware and/or in conjunction with incompatible software or in any other way that is contrary to the specified conditions of use.
4. Any liability for indirect damages or subsequent damages of any kind, as well as for forgone profits or loss of income shall be excluded insofar as this is legally permissible and irregardless of the legal grounds.
5. GEOCOM shall not be liable for any data loss, data changes and/or inconsistencies that the customer may experience. The customer is responsible for instituting a suitable backup and recovery strategy for their data.
6. The assertion of any indemnification claims against the other party to the agreement requires that the said party be notified in writing of such claims within 30 days of the identification of the damage (relative forfeiture period), yet no later than 6 months after the damage has occurred (absolute forfeiture period).

9. Commencement of the agreement

1. This agreement shall come into force as soon as it has received the legally authorized signatures of both parties to the agreement.

10. Final provisions

1. Both parties to the agreement shall undertake to strive in good faith to achieve a mutually agreeable solution in the event that there are any differences of opinion.
2. If efforts to achieve an amicable solution should fail, both parties agree that the place of jurisdiction shall be the location of the headquarters of the party making the complaint.
3. The contractual relationship shall be governed exclusively by Swiss law. The conditions of the Vienna Convention for the International Sale of Goods (UN Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980) shall be excluded.
4. In the event that individual provisions or parts thereof within this agreement should be shown to be void or legally invalid, the remaining provisions shall remain in force. In this event, the parties to the agreement shall replace the void or invalid provisions with mutually agreeable and legally valid provisions whose effect is as close as possible to that which was intended by the void or invalid provisions. /li>