End-User License Agreement (Software: Phoenix-Env Bundle v1.0.0)

THIS END USER LICENSE AGREEMENT IS A LEGAL CONTRACT GOVERNING THE USE OF THIS SOFTWARE.

ENSURE THAT YOU READ AND UNDERSTAND THE CONTENT OF THIS DOCUMENT BEFORE COPYING, INSTALLING, OR OTHERWISE USING THIS SOFTWARE.

BY COPYING, INSTALLING, OR OTHERWISE USING THIS SOFTWARE, OR BY EXPRESSLY AGREEING TO THIS END USER LICENSE AGREEMENT, YOU UNCONDITIONALLY ACCEPT ITS TERMS AND CONDITIONS.

IF YOU ARE NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT OR DO NOT AGREE TO ITS TERMS, YOU MUST IMMEDIATELY CEASE ALL USE, UNINSTALL, AND COMPLETELY DELETE THE SOFTWARE.

1. Definitions

1.1. “Agreement” means this End-User License Agreement.

1.2. “Licensor” means Diepolder Dynamic Optimization GmbH, including its successors and assigns, granting the license under this Agreement.

1.3. “Licensee” means you, an individual or authorized representative of a legal entity, receiving the license under this Agreement.

1.4. “Software” means “Phoenix-Env Bundle v1.0.0” provided by the Licensor, which includes the whl-package “pxpy v1.0.0”, the vsix-package “phoenix v1.0.0”, and the deb-package “phoenix v1.0.0” as well as any directly related modifications or supplemental material provided by the Licensor.

1.5. “Party” or “Parties” means either the Licensor or the Licensee individually, or both collectively.

1.6. “Third Party” or “Third Parties” means any individual or legal entity that is neither the Licensee nor the Licensor.

1.7. “Licensing Addendum” means a written addendum to this Agreement entered into by the Parties, which extends or modifies this Agreement.

1.8. “Software Extension Package” means an additional software package provided by the Licensor, such as “Phoenix-OC”, that is designed to be installed and activated within the Software.

2. License Grant

2.1. Academic Use: The Licensor grants a free-of-charge, limited, non-exclusive, non-transferable, and non-sublicensable license to degree-granting educational and research institutions for use by their academic personnel as well as enrolled students under the supervision of the academic personnel, provided such use is solely for non-commercial purposes and in accordance with the terms and conditions of this Agreement. Non-commercial academic use includes activities such as teaching, learning, and conducting research for educational purposes, but expressly excludes the use of the Software for activities that result in the development of commercial products or services, consulting, or the generation of commercial revenue.

2.2. Commercial Use: The Licensor grants a limited, non-exclusive, non-transferable, and non-sublicensable license to commercial organizations for use in accordance with the terms and conditions of this Agreement and only after the Licensee has entered into and maintains a valid and in-effect Licensing Addendum with the Licensor. The Licensee must contact the Licensor to negotiate the terms of the Licensing Addendum. The Licensing Addendum may include, but is not limited to, terms regarding the duration of use, maintenance, support, training, and applicable license fees. As an exception, the Licensor reserves the right, at its sole discretion, to approve trial requests submitted by the Licensee without a valid and in-effect Licensing Addendum. In such cases, an approval message from the Licensor in written form, expressly granting the Licensee’s request and specifying the period of use, shall be sufficient to permit the Licensee’s use of the Software during the trial period.

2.3 Activation: The license to use each installation of the Software is strictly contingent upon the presence of at least one installed and activated Software Extension Package provided by the Licensor. The activation terms and conditions of each Software Extension Package are governed by their respective license agreements. If no Software Extension Package is installed and active within the Software for thirty (30) consecutive days, this Agreement will automatically expire.

3. Restrictions

3.1. Internal Use Only: The Licensee may use the Software solely for in-house internal operations on devices or systems under the Licensee’s control.

3.2. Lawful Use: The Licensee agrees to use the Software in compliance with all applicable laws and regulations.

3.3. No Distribution and Sublicensing: The Licensee is expressly prohibited from incorporating the Software, in whole or in part, into products, services, or other software that will be used, distributed, or accessed by any Third Party. The Licensee may not distribute, sublicense, rent, lease, transfer, or otherwise make the Software available to any Third Party, whether by sale, loan, or other means, for any purpose, whether commercial or non-commercial.

3.4. No Reverse Engineering: The Licensee is not permitted to reverse engineer, disassemble, decompile, translate, or attempt to derive the source code, underlying ideas, algorithms, file formats, or programming interfaces of the Software by any means, except to the extent expressly permitted by applicable law notwithstanding this limitation.

3.5. No Modifications and Derivative Works: The Licensee may not modify, adapt, combine, create derivative works from, or update the Software, in whole or in part, without the prior written consent of the Licensor. Any unauthorized modification or derivative work is strictly prohibited and may result in termination of the License and other legal remedies.

3.6. No Circumvention of Security Features: The Licensee may not disable, circumvent, or otherwise interfere with security-related features or features that enforce limitations on the use of the Software.

4. Ownership

4.1. Ownership of the Software: The Licensee does not acquire any ownership rights in the Software or any associated intellectual property rights, which shall remain the exclusive property of the Licensor or its licensors. The Software, including any copies, modifications, enhancements, and derivative works, is and shall remain the property of the Licensor. All rights not expressly granted to the Licensee under this Agreement are reserved by the Licensor.

4.2. Ownership of Processed Data: The Licensee retains all ownership rights to any data, content, or information generated, input, or processed by the Licensee through the use of the Software, including both input data and any resulting output or results generated by the Software. The Licensor does not claim ownership of such data, and the Licensee is responsible for ensuring that such data and results comply with applicable laws and this Agreement.

5. Export Control

5.1. Compliance: The Software, and any related technical information or services, may be subject to export control laws and regulations applicable in multiple jurisdictions, including but not limited to the United States, the European Union, and Germany. The Licensee acknowledges and agrees to comply with all applicable export control laws and regulations, including restrictions on the use, transfer, export, or re-export of the Software to certain countries, individuals, or entities, as imposed by these laws.

5.2. Restrictions: The Licensee shall not, directly or indirectly, export, re-export, transfer, or make available the Software or any direct product thereof: (i) To any individual, entity, or destination subject to sanctions or export control restrictions under applicable law; (ii) For any use related to the development, production, or proliferation of nuclear, chemical, or biological weapons, or any other use prohibited under applicable export control laws and regulations; (iii) For any other purpose that would cause the Licensor to be in violation of applicable export control laws.

5.3. Liability: The Licensor shall not be liable for any direct, indirect, or consequential damages arising from the Licensee’s failure to comply with export control laws. Furthermore, the Licensor shall not be liable for any failure to provide the Software or related services due to governmental actions, including changes in export control laws or regulations that prevent the delivery of the Software.

5.4. Notification: The Licensee agrees to promptly notify the Licensor if they become aware of any circumstances or changes in their use of the Software that may be subject to export control laws or sanctions.

6. Termination

6.1. Licensee’s Right to Terminate: The Licensee may terminate this Agreement at any time, for any reason, by providing written notice to the Licensor, with immediate effect.

6.2. Licensors’s Right to Terminate: In the event of a material breach of this Agreement by the Licensee, the Licensor shall provide written notice to the Licensee, allowing the Licensee sixty (60) days to cure the breach. If the breach is not cured within this period, the Licensor reserves the right to terminate this Agreement immediately. However, the Licensor may terminate this Agreement and all licenses granted hereunder immediately and without a cure period, upon written notice in the event of any breach of Sections 2 (License Grant), 3 (Restrictions), 4 (Ownership), or 5 (Export Control).

6.3. Obligations Upon Termination: Upon termination or expiration of this Agreement, the Licensee shall immediately discontinue all use of the Software, uninstall the Software, and delete all copies, including partial copies, of the Software in its possession. This obligation excludes any records the Licensee is required to retain to fulfill its obligations under this Agreement, including but not limited to obligations under applicable law.

6.4. Surviving Provisions: Provisions of this Agreement that, by their nature, are intended to survive termination, including but not limited to audit rights, export control, indemnity, limitation of liability, and confidentiality shall remain in full force and effect following the termination or expiration of this Agreement.

6.5. No Refunds Upon Termination: No refunds shall be issued upon termination, and any outstanding amounts owed by the Licensee shall remain payable.

7. Entire Agreement

This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, understandings, or communications, whether oral or written. No material modifications to this Agreement shall be valid or enforceable unless made in writing and signed by authorized representatives of both Parties. Any modifications that conflict with this Agreement shall be ineffective unless the conflict is expressly acknowledged in writing, references this Agreement, and clearly specifies the provision(s) being modified. In the absence of such explicit reference and acknowledgment, the terms of this Agreement shall prevail.

8. Third-Party Components and Licenses

The Software includes components that are licensed under separate open-source or third-party licenses. Copies of these licenses are provided with the Software, and the Licensee agrees to comply with their terms. In the event of any conflict between this Agreement and the applicable third-party or open-source licenses, the terms of the third-party or open-source licenses shall govern with respect to those components.

9 Force Majeure Events

Neither Party shall be liable for any failure to perform its obligations under this Agreement if such failure results from events or circumstances beyond its reasonable control, including, but not limited to, natural disasters, war, terrorism, pandemics, strikes, cyber-attacks, civil unrest, or governmental actions, including sanctions or changes in export control laws. The affected Party shall promptly notify the other Party of the force majeure event, including any governmental action or sanctions that impact the use, distribution, or licensing of the Software, within ten (10) business days of becoming aware of the event. The affected Party shall use reasonable efforts to mitigate the effects of the force majeure event and to resume performance as soon as practicable. If performance remains impossible after reasonable mitigation efforts, the affected Party may terminate this Agreement, and no further payments shall be owed by the Licensee from the date when performance ceased. However, all fees paid prior to that date shall remain non-refundable, except in cases of substantial and prolonged disruption, where the Licensee may request a partial refund at the Licensor’s discretion.

10. Confidentiality

Both Parties agree that all non-public communications, whether oral or written, exchanged between the Parties in connection with the Software, including but not limited to technical support inquiries or business discussions, shall be treated as confidential and shall not be disclosed to any Third Party without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may disclose such confidential information as necessary to fulfill its obligations under this Agreement or as required by applicable law. This confidentiality obligation shall not apply to information that is publicly known or that becomes public through no fault of the receiving Party.

11. Severability

If any provision of this Agreement is found to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect. The Parties agree that any such invalid provision shall be replaced, either by mutual agreement or by the court, with a valid provision that most closely reflects the original intent of the Parties. Any express or implied restrictions shall remain in force to the maximum extent permitted by law, and any unenforceable restrictions shall be modified as necessary to comply with applicable law while preserving the original intent.

12. Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany, excluding its conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG). In the event that any provision of this Agreement conflicts with mandatory provisions of applicable law, such legal provisions shall prevail, but the remainder of this Agreement shall remain in full force and effect. The exclusive jurisdiction for all disputes arising from or in connection with this Agreement shall be Munich, Germany, unless mandatory laws require a different jurisdiction. Before initiating litigation, the Parties agree to first attempt to resolve any dispute through good faith negotiations. If such negotiations fail, the dispute may be referred to mediation or arbitration in Munich, Germany, unless mandatory laws require a different jurisdiction.

13. Waiver

The failure or delay by the Licensor to exercise or enforce any right, power, or remedy under this Agreement shall not operate as a waiver of any such right, power, or remedy. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by the Licensor. A waiver of any right, power, or remedy on one occasion shall not be construed as a waiver of any future or subsequent exercise of that right, power, or remedy, nor shall it constitute a waiver of any other right, power, or remedy under this Agreement.

14. Indemnity

The Licensee agrees to indemnify, defend, and hold the Licensor harmless from and against any and all liabilities, losses, damages, claims, suits, actions, judgments, or expenses (including reasonable attorneys’ fees and costs) arising directly or indirectly out of or related to any act or omission by the Licensee relating to the use of the Software, including but not limited to: (i) the provision by the Licensee of any products or services; (ii) any representations, warranties, or covenants made by the Licensee; (iii) any failure by the Licensee to comply with the terms and conditions of this Agreement; (iv) any violation by the Licensee of applicable laws, regulations, or third-party rights; or (v) any claim or allegation that the Licensee’s use, modification, distribution, or incorporation of the Software infringes any intellectual property rights of a third party.

15. Audit Rights

Throughout the term of this Agreement, including any modifications or amendments, and for a period of three hundred sixty-five (365) days following its termination or expiration, the Licensor, or an independent auditor designated by the Licensor, shall have the right to inspect and audit the Licensee’s use of the Software, provided the Licensor has reasonable grounds to believe that the Licensee is in breach of this Agreement. Audits may include reasonable access to relevant Licensee’s premises, systems, records directly related to the use of the Software, and personnel as necessary to verify compliance. Audits shall be conducted during regular business hours and upon reasonable prior notice, in a manner designed to minimize undue disruption to the Licensee’s operations and protect its confidential information. If the audit reveals non-compliance with the terms of this Agreement, the Licensor shall be entitled to any remedies available under this Agreement or applicable law. In addition, the Licensee shall bear the reasonable costs of the audit in the event that non-compliance is discovered.

16. Disclaimer of Warranties

THIS SOFTWARE IS PROVIDED BY THE LICENSOR “AS IS” AND WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE LICENSOR OR THROUGH THE SOFTWARE SHALL CREATE ANY WARRANTY. THE LICENSOR MAKES NO WARRANTY THAT THE SOFTWARE WILL REMAIN COMPATIBLE WITH ANY THIRD-PARTY SYSTEMS, PLATFORMS, OR SERVICES FOLLOWING FUTURE UPDATES OR CHANGES TO SUCH SYSTEMS. THE SOFTWARE IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE AS THE SOLE SYSTEM IN ANY APPLICATION WHERE FAILURE COULD LEAD TO DEATH, PERSONAL INJURY, PROPERTY DAMAGE, FINANCIAL LOSS, SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, OR OPERATIONAL DISRUPTION. NO OUTPUT OR RESULT GENERATED BY THE SOFTWARE SHOULD BE RELIED UPON OR USED DIRECTLY WITHOUT CAREFUL CHECKING AND VALIDATION BY SKILLED PROFESSIONALS WITH AN ENGINEERING DEGREE, EQUIVALENT QUALIFICATION, OR SIMILAR TECHNICAL BACKGROUND AND TRAINED FOR THE PARTICULAR PURPOSE OF THE SOFTWARE. THE LICENSOR IS UNDER NO OBLIGATION TO PROVIDE MAINTENANCE, SUPPORT, UPDATES, ENHANCEMENTS, OR MODIFICATIONS TO THE SOFTWARE UNLESS OTHERWISE AGREED IN WRITING. THIS DISCLAIMER IS SUBJECT TO APPLICABLE LAW, AND NOTHING IN THIS SECTION SHALL LIMIT OR EXCLUDE ANY WARRANTIES THAT CANNOT BE DISCLAIMED UNDER SUCH LAW. THIS DISCLAIMER DOES NOT AFFECT ANY STATUTORY RIGHTS THAT THE LICENSEE MAY HAVE UNDER APPLICABLE LAW.

17. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE LICENSOR BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, THE LICENSOR’S LIABILITY FOR DAMAGES ARISING FROM INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, OR FOR DAMAGES ARISING FROM INJURY TO LIFE, BODY, OR HEALTH, SHALL NOT BE EXCLUDED OR LIMITED. ANY CLAIM RELATED TO THIS AGREEMENT OR THE USE OF THE SOFTWARE MUST BE BROUGHT WITHIN THREE HUNDRED AND SIXTY-FIVE (365) DAYS AFTER THE CAUSE OF ACTION ARISES. TO THE FULLEST EXTENT PERMITTED BY LAW, THE LICENSOR’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE USE OR PERFORMANCE OF THE SOFTWARE, SHALL NOT EXCEED ONE HUNDRED EUROS (100 EUR). THIS LIMITATION APPLIES TO ALL CLAIMS, INCLUDING, BUT NOT LIMITED TO, CLAIMS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE. THE LICENSOR DISCLAIMS ANY LIABILITY ARISING FROM MISUSE OF THE SOFTWARE OR USE IN A MANNER INCONSISTENT WITH THE INTENDED PURPOSE OF THE SOFTWARE. IT IS THE SOLE RESPONSIBILITY OF THE LICENSEE TO ENSURE THAT THE USE OF THE SOFTWARE COMPLIES WITH ALL APPLICABLE LAWS, REGULATIONS, AND INDUSTRY STANDARDS. LICENSOR ASSUMES NO RESPONSIBILITY OR LIABILITY FOR ANY LOSS OR CORRUPTION OF DATA THAT OCCURS DURING THE USE OF THE SOFTWARE. IT IS THE RESPONSIBILITY OF THE LICENSEE TO ENSURE THAT ALL NECESSARY DATA BACKUPS ARE MADE BOTH PRIOR TO AND DURING THE USE OF THE SOFTWARE. UNDER NO CIRCUMSTANCES WILL LICENSOR BE LIABLE FOR ANY DAMAGES OR CLAIMS RESULTING FROM DATA LOSS, DATA CORRUPTION, OR DATA RECOVERY. THE LICENSOR SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THIRD-PARTY SERVICES OR PRODUCTS THAT MAY INTERACT WITH OR BE USED IN CONJUNCTION WITH THIS SOFTWARE.