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End-User License Agreement

IMPORTANT: PLEASE READ THIS END-USER LICENSE AGREEMENT (EULA) CAREFULLY BEFORE INSTALLING OR USING THE NEXTNANO SOFTWARE. BY INSTALLING OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL OR USE THE SOFTWARE.
IF A THIRD PARTY IS ENGAGED TO INSTALL THE PROGRAMS ON BEHALF OF THE PURCHASER OF A LICENSE, AND SUCH THIRD PARTY CLICKS TO ACCEPT THE LICENSE AGREEMENT DURING THE INSTALLATION PROCESS, THE THIRD PARTY HEREBY REPRESENTS AND WARRANTS THAT THEY ARE DULY AUTHORIZED BY THE PURCHASER OF THE LICENSE TO ACCEPT SUCH TERMS AND CONDITIONS ON BEHALF OF THE PURCHASER. THIS REPRESENTATION AND WARRANTY SHALL BE DEEMED TO BE A MATERIAL TERM OF THE NEXTNANO SOFTWARE LICENSE AGREEMENT.

1) LICENSE GRANT

During the term of this License Agreement (“Agreement”), nextnano GmbH and any of its subsidiaries or affiliates (“we”, “us”, “our”) grants to the licensee (“you”, “your”) a restricted, non-transferable, non-exclusive license to operate, run, install, use, and execute (collectively "use") the nextnano software ("Programs") and documentation including model examples ("Documentation") as outlined herein.

a) OWNERSHIP AND COPYRIGHT.

i) Object Code. The license granted herein applies only to the object code version of the Programs. It is expressly understood that the licensee shall not have any rights, whatsoever, with respect to the source code for the Programs.

ii) Ownership. All rights, title, and interest pertaining to the Programs and Documentation covered by this License Agreement, including but not limited to, copyrights and trade secrets, are and shall remain the sole and exclusive property of the licensor or its licensors. The licensee recognizes and acknowledges that it has no right, title, or interest in the Programs or Documentation beyond the limited license rights specifically granted herein.

iii) Reservation of Rights. It is hereby acknowledged that all rights, whether presently existing or arising in the future, in connection with the licensed Programs which are not explicitly granted to the licensee under this Agreement, shall be reserved exclusively to us or our licensors. The licensee is expressly prohibited from modifying, creating derivative works of, or compiling the Programs, and shall take all necessary actions to ensure that individuals with authorized access to the Programs comply with all obligations under the license agreement.

b) RESTRICTIONS ON USE.

i) Non-transferable. It is strictly prohibited for you to engage in the sale, licensing, sublicensing, rental, or distribution of the Programs or Documentation, or to provide them for use on a "time sharing" basis. The grant of rights under this Agreement is limited to your personal use of the Programs and Documentation as permitted under the terms and conditions of this Agreement.

ii) No Reverse Engineering. You agree not to engage in any decompiling, reverse engineering, disassembling, isolating, separating, or any other attempt to derive source code from any Programs or Documentation, unless permitted by applicable law. All copies of the Programs and Documentation must contain the original copyright and proprietary notices, and you must not remove, obscure, or alter any copyright, trademark, or proprietary rights notices affixed to or contained within the licensed Programs or Documentation.

If you are a licensee in the European Union, you may engage in decompiling, disassembling, or reverse engineering of the Programs only to the extent necessary to achieve the Permitted Objective, including creating an independent program that is interoperable with the Programs or another program, or to observe, study, or test the functioning of the Programs solely to understand the ideas and principles underlying any element of the Programs. However, you may engage in such activities only if the information necessary to achieve the Permitted Objective has not already been made available or provided by us within a reasonable time after a written request for such information, the compilation, disassembly, reverse engineering, etc. is confined to only those parts of the Programs necessary to achieve the Permitted Objective, the information gained is not used for any other purpose than the Permitted Objective, and is not disclosed to any other person except as necessary to achieve the Permitted Objective. Additionally, the information obtained cannot be used to create a program that is substantially similar in its expression to any Programs, including but not limited to expressions of the Programs in other computer languages or any other act restricted by copyright in the Programs.

iii) Free License. As a licensee of the free version of any Program, you are granted a license to use the Program for the sole purpose of testing the Program's functionality without any obligation to pay. It is strictly prohibited to use the Program for any commercial or publication use. The free license will be provided for the type of license specified by the Licensor and for the duration specified by the Licensor at its sole discretion, which may be terminated by the Licensor at any time at its sole discretion. The Licensor shall have no warranty obligations for free licenses.

2) TERM AND TERMINATION.

This Agreement shall remain in effect until terminated by either party. You have the right to terminate this Agreement at any time by destroying all copies of the Software in your possession. nextnano reserves the right to terminate this Agreement immediately if you breach any term or condition of this Agreement.

Upon termination, you agree to immediately cease all use of the Software and destroy all copies of the Software in your possession. Termination of this Agreement, whether by you or nextnano, shall not relieve you of your obligation to pay any fees or charges incurred prior to the effective date of termination.

Additionally, any provisions of this Agreement that, by their nature, are intended to survive termination shall continue to remain in full force and effect following termination. Such provisions may include, but are not limited to, those relating to intellectual property, confidentiality, and limitation of liability.

In the event of termination, nextnano shall not be liable to you or any third party for any damages or losses whatsoever arising from the termination of this Agreement, including, but not limited to, any direct, indirect, incidental, consequential, special, or punitive damages, lost profits or revenues, loss of use of the Software, or interruption of business.

Furthermore, nextnano reserves the right to disable or deactivate any copies of the Software that have not been properly terminated, as determined in nextnano’s sole discretion. If any dispute arises from termination, you agree that any legal action shall be brought exclusively in the courts located in the state where nextnano’s principal place of business is located.

3) LIMITATION OF LIABILITY.

In no event shall nextnano be liable for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use the Software, even if nextnano has been advised of the possibility of such damages. In any case, nextnano's entire liability under any provision of this Agreement shall be limited to the amount actually paid by you for the Software.

4) U.S. GOVERNMENT END USERS.

The Software and any related documentation are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Software and any related documentation are licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.

The U.S. Government acquires only those rights in the Software and documentation that are consistent with the terms and conditions of this Agreement, as specified in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable. Contractor/manufacturer is the Licensor of the Software and is responsible for any warranty or technical support provided in connection with the Software.

The U.S. Government and its contractors may use, reproduce, distribute, and modify the Software and documentation only as expressly permitted by this Agreement. The Licensor is not liable for any damages, including direct, indirect, special, incidental, or consequential damages, arising out of the use of the Software by the U.S. Government or its contractors. The Software is provided "AS IS" without any warranty of any kind, express or implied.

5) ASSIGNMENT AND TRANSFER.

You may not assign, transfer, or delegate this Agreement or any of your rights or obligations hereunder without the prior written consent of nextnano. Any attempted assignment or transfer without such consent shall be null and void.

In the event that we do permit assignment or transfer of your rights and obligations under this Agreement, it shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators, and assigns of the parties hereto. However, we reserve the right to charge you an administrative fee for any permitted assignment.

6) GOVERNING LAW AND JURISDICTION.

This Agreement shall be governed by and construed in accordance with the laws of Germany, without regard to its conflict of law provisions.

Any legal action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the courts located in the state/country where nextnano is located, and each party irrevocably submits to the jurisdiction and venue of such courts in any such action or proceeding. Each party hereby waives any objection to such courts on the grounds of venue, forum non conveniens or any similar basis.

The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

This section shall survive any termination or expiration of this Agreement.

7) ENTIRE AGREEMENT

This Agreement, including any schedules or exhibits attached hereto, constitutes the entire agreement between you and nextnano regarding the subject matter hereof and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. No amendment or modification of this Agreement shall be binding unless in writing and signed by both parties. Any terms or conditions contained in any purchase order or other document submitted by you which are inconsistent with or in addition to the terms and conditions set forth herein shall be deemed rejected by nextnano and shall be of no force or effect.

8) AMENDMENTS AND WAIVERS

nextnano reserves the right to modify, amend, or supplement this Agreement at any time. Any such modification, amendment, or supplement will be effective immediately upon posting on our website or providing notice to you via email or other means. Your continued use of the Software following such notice will be deemed to conclusively indicate your acceptance of any and all such modifications, amendments, or supplements. If you do not agree to any such modification, amendment, or supplement, your sole remedy is to terminate this Agreement in accordance with its terms.

No waiver of any provision of this Agreement shall be effective unless made in writing and signed by an authorized representative of nextnano. Any such waiver shall only apply to the specific instance for which it was given and shall not be deemed a waiver of any other provision of this Agreement.

9) SEVERABILITY

If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect, and the provision found to be invalid or unenforceable shall be replaced by a valid and enforceable provision that most closely achieves the intent and economic effect of the invalid provision.

BY CLICKING THE "I ACCEPT THE TERMS AND CONDITIONS" BUTTON OR BY INSTALLING OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK THE "I ACCEPT THE TERMS AND CONDITIONS" BUTTON AND DO NOT INSTALL OR USE THE SOFTWARE.

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