End User License Agreement

End User Licensing Agreement (EULA) for Aspherix Software Proprietary to DCS Computing GmbH

Industriezeile 35, 4020 Linz, Austria,
Company ID no. 374386v, Linz Regional Court
Last updated: 26. April 2022

1. Subject and scope:
   1. DCS Computing GmbH, hereinafter termed DCS, grants the rights to the use of DCS programs and modules (hereinafter termed SOFTWARE), as laid out herein.
   2. The SOFTWARE consists of one or more of the following components: Aspherix® Solver, Aspherix® GUI, Aspherix® HPC, CFDEM®coupling. Each COMPONENT includes documentation and examples that are contained in the shipment.
   3. The COMPONENTS Aspherix Solver, Aspherix GUI, Aspherix HPC are subject to commercial (proprietary) licence terms (hereinafter termed COMMERCIAL SOFTWARE for short). The COMPONENT CFDEM®coupling and (sub)parts of other COMPONENTS are subject to open source licences (hereinafter termed OPEN SOURCE SOFTWARE).
   4. The Aspherix™ Solver component also offers some extension submodules, such as the Aspherix CFD coupling module or the Aspherix calibration module. Those extension submodules are under the same legal terms as Aspherix® Solver, as laid out hereinafter, but need to be purchased separately.
   5. The scope for rights of use relating to COMMERCIAL SOFTWARE and OPEN SOURCE SOFTWARE are outlined in Sections 2 and 3.
   6. The feature set and functionalities as well as prerequisites are described in the spec sheets current at the time of the purchase and are available at https://www.aspherix-dem.com/spec-sheets/. .

2. OPEN SOURCE SOFTWARE licenses:
   1. The software licenses for the OPEN SOURCE SOFTWARE that may be contained in the software shipment by DCS as well as links to the software repositories containing license texts copyright notices are outlined in Annex1. OPEN SOURCE SOFTWARE licenses are deemed to be integral to this contractual agreement. The full license texts are available via the links in Annex 1, upon request and are contained in the shipment of the SOFTWARE.
   2. DCS assures that those software licenses grant the Customer a fully-paid-up, royalty free, irrevocable license to OPEN SOURCE SOFTWARE, the Customer may use, copy, distribute, and create derivative works from the source code associated to OPEN SOURCE SOFTWARE.
   3. The term “OPEN SOURCE SOFTWARE” shall not imply that the according licenses are approved by the Open Source Initiative (OSI). The provisions of the preceding paragraph is agreed as defining characteristics of OPEN SOURCE SOFTWARE for the purposes of this agreement.
   4. The Customer notes, with approval, that the license of OPEN SOURCE SOFTWARE may be subject to change, e.g. in case the issuer of a software package releases a new version under a modified new version of the license. DCS reserves the right to modify the licensing of the OPEN SOURCE SOFTWARE, whereby these new provisions must also become integral to this contractual Agreement. In case of material changes, the Customer can terminate the Licensing Agreement by submitting written notification hereof to DCS. Any termination must, under all circumstances, apply to all programs and modules.
   5. Annex 1 denotes some of the OPEN SOURCE SOFTWARE with (*). Those refer to libraries used by one or more components. On request by the Customer, the source code for OPEN SOURCE SOFTWARE denoted with (*) is transmitted to the Customer by DCS, where those licenses foresee such a right for the user. The OPEN SOURCE SOFTWARE not denoted with (*) are stand-alone packages from third parties, shipped to the Customer for convenience only. The source code for OPEN SOURCE SOFTWARE not denoted with (*) can be obtained by the issuer of such 3^rd party software, where those licenses foresee such a right for the user.
   6. It is hereby stated that module CFDEM®coupling needs a version of OpenFOAM® compatible with the respective release of CFDEM®coupling (as indicated by DCS at the time of the release) in order to be functional. It is assumed the Customer will obtain and install such compatible version of OpenFOAM® at own initiative and expense, and the Customer notes with approval that the respective license for OpenFOAM® will apply to this part of the software.

 

3. Commercial licence:
   1. DCS grants the Customer personal, non-transferable and non-exclusive licensing rights to the own use of COMMERCIAL SOFTWARE legally acquired, registered and activated under that Customer’s licence number.
   2. The valid commercial licence (hereinafter termed LICENCE for short) governing COMMERCIAL SOFTWARE is being definitively agreed upon in the present contractual Agreement concluded between the Customer and DCS.
   3. In case the LICENSE is purchased as “Academic License”, the SOFTWARE may only be used for teaching or scientific research purposes, where such scientific research purposes are defined as endeavours which do receive their funding from public research funding agencies only. In no case may such an endeavour receive payments or benefits – directly or indirectly – by a for-profit entity. Violations against this provisions constitute a material violation that entitles DCS to terminate the Licensing Agreement, without right for compensation for Customer. Any such termination must, under all circumstances, apply to all programs and modules.
   4. The LICENCE entitles the Customer to use one or more instances of the COMMERCIAL SOFTWARE (according to the extent of the purchase) on different machines. The term ‘machine’ thereby denotes any physical machine equipped with a single processor (CPU) or with multiple processors, and any virtual machine or otherwise emulated hardware environment.
   5. Each LICENSE purchased for Aspherix Solver and Aspherix HPC consists of a specified number of coins, each of which can be used to run a single serial instance of the COMMERCIAL Alternatively, each coin can be used to add a single parallel instance (one coin = one MPI process) of the COMMERCIAL SOFTWARE.
   6. Each LICENSE purchased for Aspherix GUI can be used to run a single instance of the Aspherix GUI COMPONENT.
   7. Each instance of the COMMERCIAL SOFTWARE must be connected to a license server which can either be hosted by DCS or a service provider on behalf of DCS or by the Customer. Customer and DCS must decide jointly on where to host the license server. In case no unanimous agreement can be reached, the license server will be hosted by DCS or a service provider on behalf of DCS. If the Customer chooses to host such a server it may not be run in a virtual machine or otherwise emulated hardware environment.
   8. The Customer acquires the LICENCE exclusively for own use. This means that only the Customer and the Customer’s employees may access the COMMERCIAL SOFTWARE.
   9. If the Customer wishes to make the COMMERCIAL SOFTWARE available to further natural or legal persons or other third parties for their own use, either online or by remote means, the Customer must purchase an additional licence for each additional party.
   10. DCS always supplies the latest version of the SOFTWARE. Only the latest version of the SOFTWARE is supported by DCS.
   11. The Customer installs the programs independently, assuming responsibility thereof, or arranges to have them installed by third parties, assuming responsibility for such installation.
   12. If SOFTWARE legally possessed by the Customer becomes wholly or partially damaged or is accidentally deleted, it must be replaced free of charge by DCS, duly calculating expenses accruing to DCS on account of data carriers, administration time and shipping charges.

 

4. Terms of LICENCE use:
   1. The Customer may only order and use the COMMERCIAL software on its own behalf.
   2. The Customer is acquiring a simple, geographically unrestricted and non-exclusive right to use the COMMERCIAL SOFTWARE.
   3. DCS reserves any and all rights that are not expressly granted to the Customer under this contractual Agreement. These include property rights, copyrights, patent rights, trademark rights and all other protection rights to the COMMERCIAL SOFTWARE, distribution rights, leasing rights, the right to issue sub-licences and the like.
   4. The Customer shall be permitted to create backup copies of the program as required for secure operation. As far as it is technically possible, the backup copies must bear the copyright notice of the original data carrier and must be retained in safekeeping. Copyright notices may not be deleted, modified or obliterated. Copies that are no longer required are to be deleted or destroyed. The user manual and other documents handed over by DCS may only be copied for company-internal purposes.
   5. It is prohibited for the Customer to pass on the COMMERCIAL SOFTWARE to third parties or to make it accessible to them in any form whatsoever.
   6. Any form of utilisation of the proprietary LICENCE, relating to leasing, loaning and distribution thereof in tangible or intangible form, of the COMMERCIAL SOFTWARE by and for third parties (e.g. outsourcing, data processing centre operations, application service provision, offering software as a service) are not allowed without the prior, written consent of DCS.
   7. The Customer must not modify or tamper with the COMMERCIAL SOFTWARE in any way. In particular, the Customer must not decompile or reverse-engineer it or to convert it to a readable or alterable format. However, the Customer may extend the scope of the SOFTWARE by using the API (Application Programming Interface) provided by DCS:
   8. Contractual items, documents, suggestions, test programs etc. that are proprietary to DCS and to which the Customer obtains access before or after contractual conclusion are deemed to constitute intellectual property and business and operational secrets of DCS, and are to be treated in strict confidentiality.
   9. The Customer is required to adopt suitable precautionary measures to ensure that all persons who have access to the programs also comply with the obligations by which the Customer is bound under the terms of this contractual Agreement.
   10. DCS can monitor consent to the Licensing Agreement and compliance with the licensing provisions by making application of the COMMERCIAL SOFTWARE and application of updates, patches and the like subject to legal activation of the COMMERCIAL SOFTWARE. In addition DCS reserves the right to monitor data connected to use of LICENSE by transmitting information on the system environment, such as the IP address, MAC address, location information, server name and the like. DCS treats such information in strict confidence. DCS also has the right to have compliance with the provisions of the licence confirmed by a recognised auditing firm.
   11. In case of an Academic Research License”, Customer is obliged to keep records (lists) of users and IP addresses that have had access to the COMMERCIAL SOFTWARE, as well as documentation as proof for the compliant use of the COMMERCIAL SOFTWARE, especially with respect to Section 3.3. These records and documentations have to be provided in writing to DCS upon written request within 7 days.
   12. Customer must not use COMMERCIAL SOFTWARE in any conjunction with goods that are designed or modified for military use. Also, Customer must not use the software or make it available in any way to operations undertaken in or in conjunction with countries where an embargo on military goods has been declared by a competent authority in the European Union or the United States of America.

5. IPR Provisions for SOFTWARE Customization
   1. These provisions set forth the conditions under which, when contracted by Customer, DCS extends the functionalities of SOFTWARE by ENHANCEMENTS as per the requirements of CUSTOMER.
   2. Copyrights and all other intellectual property rights of any material produced under this agreement consisting of data and/or other material in a transformed or processed form owned by Customer belong solely to Customer.
   3. Unless otherwise agreed in writing, any work of authorship or software created under this agreement by DCS, including such ENHANCEMENTS, which forms a part of Aspherix™, LIGGGHTS®, CFDEM®coupling, CFDÈM®dalilama or related software belong to DCS. This includes property rights, copyrights, patent rights, trademark rights and all other protection rights, distribution rights, leasing rights, the right to issue sub-licences and the like.
   4. ENHANCEMENTS will be under the same license terms than the SOFTWARE it enhances.
   5. Unless agreed otherwise in writing, Customer shall have exclusive access and rights of use to such ENHANCEMENTS for a period of at least 8 months. This means DCS will keep such ENHANCEMENTS confidential for this period.

6. Privacy Policy
   1. DCS will collect data associated to Licensing, as outlined in 4.10.
   2. DCS and/or connected affiliated companies gather additional information if the customer uses the website cfdem.com. For information regarding the privacy policy, please see http://www.cfdem.com/privacy. Any of the terms and policies at http://www.cfdem.com/privacy may be subject to change at any time without prior notice. Your use of www.cfdem.com following any such change constitutes your unconditional agreement to follow and be bound by these Terms as changed. it is recommended that you periodically check if any changes have been made.
   3. As part of the sales process, DCS will gather personal information such as contact information (information such as name, job title, company name, department, email address, physical mailing address, job description, telephone number). DCS has taken all necessary measures to ensure the safety of the processing under Art. 32 GDPR. For shipment and License management a part of the gathered personal information is processed by third parties. DCS makes sure that by DCS contracted third parties have taken all necessary measures to ensure the safety of the processing under Art 28 in conjunction with Art. 32 GDPR.
   4. Data regarding unlicensed use and users may be collected and processed by DCS. If DCS believes that use of DCS’s software is unlicensed DCS may also share that data with other software companies, organizations set up to counter software theft and law enforcement
   5. The information gathered will be used by DCS or by DCS’s distribution partners to provide the information, services or support the Customer requests and related after-sales services; to identify the Customer and to contact the Customer from time to time with product or service updates; to send other messages that are useful to the service DCS provides; to carry out any related administration; to promote DCS’s services, or the services of DCS’s partners, including via email; to detect, investigate and prevent activity DCS thinks may be potentially illegal, unlawful or harmful and to enforce the Privacy Policy and/or Terms referenced herein. The Customer may opt-out of receiving marketing communications at any time by contacting DCS directly.
   6. DCS may disclose Customer’s personal data to enforce DCS’s policies, to comply with DCS’s legal obligations or in the interests of security, public interest or law enforcement in any country where DCS has entities or affiliates. For example, DCS may respond to a request by a law enforcement agency or regulatory or governmental authority. DCS may also disclose data in connection with actual or proposed litigation, or to protect DCS’s property, security, people and other rights or interests.
   7. DCS takes what it considers to be appropriate technical and organizational measures to guard against unauthorized or unlawful processing of Customer’s personal data and against accidental loss or destruction of, or damage to, Customer’s personal data. While no system is completely secure, DCS believes the measures implemented reduce DCS’s vulnerability to security problems to a level appropriate to the type of data involved.
   8. The Customer’s data may be processed and stored on DCS’s or third party providers’ computers in Austria or other countries where DCS or DCS’s services providers or distribution partners have a presence.
   9. DCS will retain the Customer’s personal data only as long as is necessary for the purposes set out in this Privacy Policy, or as is required by applicable law, and then DCS will delete it.
   10. If the Customer wants his personal information to be deleted by DCS he has request a deletion in writing. DCS will only delete personal data in accordance with Art 17 GDPR on explicit request and only if the latest valid LICENCE has expired 48 months prior to the request.

 

7. Rights in the event of defects:
   1. DCS guarantees that the contractually compliant use of the SOFTWARE by the Customer is not contested by third party rights. This does not apply if an alleged infringement is based upon the use of the SOFTWARE in combination with other software not furnished by DCS if such alleged infringement would have not occurred except for such combined use. In the event of defects in title, DCS guarantees that it will grant the customer legally unobjectionable use of the SOFTWARE or equivalent software at DCS’ discretion.
   2. The Customer must notify DCS immediately in the event that protection rights (e.g. copyrights or patent rights) of third parties to the SOFTWARE are asserted against the Customer. The Customer authorises DCS to attend to any disputes with such a third party on its own account. For the duration that DCS exerts such authority, the Customer must not independently recognise the claims of the third party without the consent of DCS; thereafter, DCS shall defend itself against the claims asserted by the third party at its own expense and shall indemnify the Customer against all costs associated with defence against these claims, provided the latter are not attributable to the Customer’s failure to meet obligations (e.g. contractually non-compliant use of the programs).
   3. The provisions of the open source licence are deemed covenanted specific to the OPEN SOURCE SOFTWARE.
   4. The SOFTWARE is of high quality. However, it is not error-free. Minor functional impairments, or those functional impairments that are wholly or partially attributable to hardware defects, boundary conditions, incorrect operation or the like, do not constitute defects.
   5. In the event of a defect, a claim in this respect may be asserted against the distribution partner that ceded the SOFTWARE to the Customer or installed it for the Customer’s use within 12 months from initial installation or within 6 months from its update but in any event before the expiration of the acquired LICENSE. The defect is to be notified to the distribution partner immediately in writing.
   6. Definition of supported systems/platforms: DCS and Customer will work to define and agree on the platforms the software will be installed and used on.
   7. If Customer uses any COMPONENT not with the OPEN SOURCE SOFTWARE shipped by DCS, DCS will not assume any warranty or liability of any kind
   8. In no way shall DCS assume warranty or liability for any effect of running the SOFTWARE on operating systems which do not fulfil the prerequisites as outlined in the spec sheets published at https://www.aspherix-dem.com/spec-sheets/ or have reached their End Of Life. End of Life means no further update support is provided by official distributor of the operating system. Such operating systems beyond their End Of Life will not be supported by DCS. If in doubt, Customer shall request guidance of DCS and DCS shall provide such guidance whether a concrete operating system in question fulfils the prerequisite.

 

8. Liability and limitation of liability:
   1. The SOFTWARE should only be used by trained and appropriate qualified professionals. The SOFTWARE and the output created by the SOFTWARE don’t supersede experiments, testing and the like.
   2. DCS shall only be liable for proven damages caused directly by the SOFTWARE itself. DCS cannot be held liable for damages caused by any output or result created by the SOFTWARE.
   3. In case defects arise from improper use or a lack of Customer’s IT security DCS is free from any liability.
   4. DCS’ liability is in any event limited to the amount the Customer shall have paid in licensing fees.
   5. DCS can in no way be held liable to the Customer or to third parties for any damage, loss, claims or costs and the like resulting from interruptions to operations, indirect or ancillary damage and consequential damage, such as loss of profit, unrealised savings and third party claims.
   6. The Customer or any other user / recipient of the software (e.g. via contractually non-compliant or unlawful installation or use) are liable to DCS for any damage or loss resulting from the contractually non-compliant or unlawful installation, use or cession of the SOFTWARE.

 

9. Term and cessation:
   1. The limited rights of use to the COMMERCIAL SOFTWARE shall be assumed by the Customer only upon delivery of the signed Licensing Agreement and complete payment of the agreed fee. However, the Customer has no entitlement whatsoever to any refund of licensing fees.
   2. In the event that delivery of the signed Licensing Agreement or payment of the agreed fee also fail to be effected within an appropriate period of grace, DCS is entitled to solicit return of the COMMERCIAL SOFTWARE and/or written confirmation that these and all copies thereof have been destroyed.
   3. The Customer can terminate the Licensing Agreement at any time by submitting written notification hereof to DCS. Any termination shall, under all circumstances, apply to all programs and modules of the COMMERCIAL SOFTWARE.
   4. If the SOFTWARE is used in compliance with the contractual terms, DCS cannot terminate this Licensing Agreement. By contrast, if the Customer significantly infringes the Licensing Agreement, namely disregards the scope of the Licensing Agreement granted to the Customer or infringes copyrights proprietary to DCS, DCS is entitled to terminate this Licensing Agreement without prior warning and with immediate effect.
   5. Upon termination of the Licensing Agreement, the Customer has no entitlement whatsoever to any refund of licensing fees. The Customer is, nevertheless, obligated to remove the installation and to also destroy any data carriers received from DCS. He is also bound by the terms of this Agreement for any use of the SOFTWARE (and, as defined in 1.3 related examples and documentation) before the effective date of the termination, and any use of the SOFTWARE and related materials beyond the effective date of such termination is prohibited. If requested to do so by DCS, the Customer is required to confirm the destruction or the deletion of programs in writing.

 

10. General provisions:
    1. The rights of the Customer vis-à-vis DCS are definitively recorded within this Licensing Agreement.
    2. Additional or deviating licensing provisions shall be effective only if they are stipulated in writing and are duly signed by both contractual parties.
    3. In the event that parts of this Licensing Agreement should be ineffective, the remaining provisions remain valid. In such an instance, the contractual Agreement is to be configured, drawing upon statutory and industry-specific regulations, such that commercial success is achieved to the greatest extent possible.
    4. Austrian law shall be applicable; the agreed place of jurisdiction is Linz.

 

Approval

of the End User Licensing Agreement (EULA)

Customer:

Department

Contact person
Address
Post Code / Place	Telephone
Country	Licence number

Upon appending a legally valid signature, the Customer recognises the licensing provisions for the SOFTWARE.

Place, date

Name/signature:
Name/signature:

 

 

Annex 1:

OPEN SOURCE SOFTWARE	Used in COMPONENT	License name	Link to license text / repository or project website which contains copyright notices
*CFDEM®coupling	CFDEM®coupling	GPLv3	https://github.com/CFDEMproject/CFDEMcoupling-PUBLIC/blob/master/COPYING
*LAMMPS (parts)	Aspherix® solver	LGPL 2.1	https://www.gnu.org/licenses/old-licenses/lgpl-2.1.en.html
*Qt (only LGPL’d components) * QWT	Aspherix® GUI	LGPL v3 License QWT License (based on LGPL)	https://github.com/qt/qt5/blob/5.15.1/LICENSE.LGPLv3 https://qwt.sourceforge.io/qwtlicense.html
Microsoft MPI (Windows only)	Aspherix® solver	MIT License	https://github.com/microsoft/Microsoft-MPI/blob/master/LICENSE.txt
*Vtk	Aspherix® solver, Aspherix® GUI	BSD License	https://vtk.org/about/#license
*Libccd	Aspherix® solver	3-clause BSD License	https://github.com/danfis/libccd/blob/master/BSD-LICENSE
*Voro++	Aspherix® solver	modified BSD license	https://code.lbl.gov/projects/voro/ http://math.lbl.gov/voro++/download/
Paraview	Standalone	permissive BSD license, others	https://www.paraview.org/paraview-license/
*Open Scene Graph *OSGQT	Aspherix® GUI	Open Scene Graph License	https://github.com/openscenegraph/OpenSceneGraph/blob/OpenSceneGraph-3.6/LICENSE.txt https://github.com/openscenegraph/osgQt/blob/master/LICENSE.txt
*ZLib	Aspherix® solver, Aspherix® GUI	ZLib License	https://www.zlib.net/zlib_license.html
OpenSSL	Aspherix® solver, Aspherix® GUI	OpenSSL License , original SSLeay license	https://www.openssl.org/source/license.html
Microsoft Visual C++ 2015 /2017 / 2019 Redistributables (Windows only)	Aspherix® solver, Aspherix® GUI	Visual C++ Redistributables License	https://www.microsoft.com/de-ch/download/details.aspx?id=53840
*OpenCV	Aspherix Calibration	Apache 2.0	https://github.com/opencv/opencv/blob/master/LICENSE https://github.com/opencv/opencv/blob/master/COPYRIGHT
*Boost	Aspherix Solver, Aspherix Calibration	Boost license	https://github.com/boostorg/boost/blob/master/LICENSE_1_0.txt
*Libjpeg	Aspherix Solver	BSD-like	http://ijg.org/
*liblzma	Aspherix Solver	LGPLv2.1+ (only LGPL’d parts used)	https://github.com/kobolabs/liblzma/blob/master/COPYING https://github.com/kobolabs/liblzma/blob/master/AUTHORS
*libarchive	Aspherix Solver	new BSD license	https://github.com/libarchive/libarchive/blob/master/COPYING
*pybind11	Aspherix Solver	3-clause BSD	https://github.com/pybind/pybind11/blob/master/LICENSE
*Easylogging++	Aspherix GUI	MIT License	https://github.com/amrayn/easyloggingpp/blob/master/LICENSE
*imath	Aspherix Solver	BSD 3-clause	https://github.com/AcademySoftwareFoundation/Imath/blob/master/LICENSE.md
* openexr	Aspherix Solver	modified BSD	https://github.com/AcademySoftwareFoundation/openexr/blob/master/LICENSE.md
* openvdb	Aspherix Solver	Mozilla Public License MPL 2.0	https://github.com/AcademySoftwareFoundation/openvdb/blob/master/LICENSE https://github.com/AcademySoftwareFoundation/openvdb/blob/master/openvdb/openvdb/COPYRIGHT
* tbb	Aspherix Solver	Apache License 2.0	Used: https://github.com/wjakob/tbb Original: https://github.com/oneapi-src/oneTBB
* v-hacd	Aspherix Solver	BSD 3-clause	https://github.com/kmammou/v-hacd/blob/master/LICENSE
* quickhull	Aspherix Solver	Public Domain	https://github.com/akuukka/quickhull
* elmer	Aspherix Solver	LGPL 2.1 (LGPL’d parts only)	https://github.com/ElmerCSC/elmerfem/
* eigen	Aspherix Solver	Mozilla Public License MPL 2.0 / LGPL	https://gitlab.com/libeigen/eigen/
* lapack	Aspherix Solver	BSD	https://github.com/kmammou/v-hacd/blob/master/LICENSE
* hypre	Aspherix Solver	MIT / APACHE 2.0	https://github.com/hypre-space/hypre
Ovito Basic	Standalone	MIT License	https://www.ovito.org/docs/current/licenses/index.html
* Tinyxml	Aspherix Calibration	zlib License	https://github.com/leethomason/tinyxml2
* xtensor	Aspherix Calibration	3 Clause BCD	https://github.com/xtensor-stack/xtensor
* xtl	Aspherix Calibration	3 Clause BCD	https://github.com/xtensor-stack/xtl