End User License Terms

Version: July 2023

Please read these terms carefully. If you electronically accept these terms, execute and deliver these terms, or otherwise use the Principia MBS website and/or service or software, you agree to be bound by all of these terms as a legally binding agreement between you and Principia MBS. If you do not accept the terms, you are not permitted to use the service. If you are entering this agreement as an employee or representative of your employer, the term “you” includes your employer and any other party on whose behalf you act.

1. Scope | General

1.1 These End User Licence Terms (the “Terms”) apply between Principia MBS GmbH, Markt 10A/2, A-4113 St. Martin im Mühlkreis, Austria (“Principia”) and the users of Principia’s multibody simulation software (the “Software”) or recipients of Principia’s services (in each case, the “End User” or “End Users”) and shall form an integral part of any agreement between Principia and End User, whether entered into by execution of order forms or other order documents by Principia and End User, by completion of any click-through or other online process, by email correspondence or in any other form (the “Agreement”).

1.2 Principia shall provide the Software to End User subject to payment of fees as software as a service in accordance with the Agreement. The Software is provided solely as software as a service, i. e., for browser-supported and Internet-based use via End User’s devices. End User shall ensure that the devices deployed for using the Software and the connections required comply with the minimum system requirements specified by Principia. Principia may, at its sole discretion, subcontract any or all of its obligations under these Terms and any Agreement to third parties.

1.3 Specifications of the Software are included in the current documentation for the Software (the “Documentation”). Any other product information sent to End User, if any, such as marketing material, product descriptions, product roadmaps and the like, shall be for informational purposes only and shall not constitute binding declarations by Principia.

1.4 The version of these Terms which is applicable at the time concerned shall also apply to all future Agreements between End User and Principia without Principia being required to refer to these Terms in each individual case. These Terms shall be deemed to be confirmed by End User at the latest when Principia grants access to the Software or provides its Services.

1.5 These Terms shall apply exclusively. Any terms and conditions of End User which deviate from, conflict with or supplement these Terms shall only become part of the Agreement upon explicit prior written confirmation of Principia.

2. End User Account | Updates | Availability

2.1 In order to use the Software in accordance with these Terms, the End User must have a valid Onshape account (the “End User Account”). Depending on the account type (“Free”, “Standard”, “Professional”, “Enterprise”, “Education Standard”, “Education Enterprise”) the End User will have access to features specified by Principia.

2.2 Principia reserves the right to limit the access to an account, if End User is in default of any fees due.

2.3 Principia may carry out necessary updates and upgrades to the Software in order to improve the usability, security or stability of the Software or to extend its features or to ensure its compliance with statutory requirements. Updates and upgrades to the Software shall be provided at Principia’s sole discretion.

2.4 Principia strives to offer constant availability of the Software but cannot warrant uninterrupted availability thereof. Principia offers the Software as a service and therefore has no influence and is not responsible for End User’s Internet access or Internet connection including its availability, bandwidth or any costs and expenses of End User associated therewith.

3. Licence Grant to the Software | Licence Restrictions

3.1 Subject to these Terms, Principia hereby grants to End User, during the Subscription Term, a non-exclusive, non-transferable, non-sublicensable right and licence to use the software as a service version of the Software on its end devices for private and/or internal business purposes only.

3.2 For the avoidance of doubt, End User’s affiliates (and employees thereof) shall not use the Software without Principia’s prior written consent.

3.3 Except as otherwise expressly provided in these Terms, End User shall not (and shall not permit any third party to): (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, or otherwise generate income from the Software; (b) copy the Software onto any public or distributed network; (c) decompile, reverse engineer or disassemble any portion of the Software, or attempt to discover any source code or other operational mechanisms of the Software; (d) modify, adapt, translate or create derivative works based on all or any part of the Software; (e) use any components of the Software other than together with the Software; (f) modify any proprietary rights notices that appear in the Software or components thereof; (g) use the Software in violation of any applicable laws and regulations or outside of the licence scope set forth herein; (h) configure the Software to collect (aa) any data that falls within the definition of ‘special categories of data’ within the meaning of the EU General Data Protection Regulation or a similar concept; (bb) passwords or other authentication credentials; (cc) any payment or other financial data, biometric data or genetic data; or (dd) any data relating to a person under the age of sixteen (16) years old (collectively, “Prohibited Data”); or (i) use the Software to (aa) store, download or transmit infringing, libellous, or otherwise unlawful or tortious material, or malicious code or malware, or (bb) engage in phishing, spamming, denial-of-service attacks or other fraudulent or criminal activity; (cc) interfere with or disrupt the integrity or performance of third-party systems, or the Software or data contained therein; (dd) attempt to gain unauthorized access to the Software or Principia’s systems or networks; or (ee) perform, or engage any third party to perform, authenticated or unauthenticated penetration testing, vulnerability assessments or other security assessments on the Software.

4. Proprietary Rights

Principia and its suppliers own and shall retain all proprietary rights, including all copyright, database rights, patent, trade secret, trademark and all other intellectual property rights, in and to the Software and the results of any Services. The Software may only be used by End User as prescribed by the Documentation.

5. Use of the Software | Content

5.1 Ownership of and responsibility for all designs, analyses, simulations, models, estimations, data and other results uploaded by End User within the Software or generated by End User through End User’s use of the Software (collectively, the “Content”) shall fully remain with End User or its respective owner.

5.2 End User acknowledges that Content uploaded or generated by End User shall not be accessible by other users of the Software and visitors of Principia’s websites unless End User uses functionality of the Software to share Content with such other users and visitors. End User grants to Principia the non-exclusive, unlimited (in terms of time and territory), sublicensable, transferable, royalty-free and irrevocable right to use the Content for the sole purpose of performing Principia’s obligations under the Agreement and of improving and optimizing the Software and specific functionalities thereof, including for bug fixing, testing and rectifying defects as well as for statistical analyses.

5.3 End User represents and warrants that (a) it has sufficient rights to upload and generate the Content, (b) it has sufficient rights to grant to Principia and any other users of the Software the rights specified in clause 5.2, (c) there are no third-party rights, including privacy rights and intellectual property rights which restrict the uploading or generation of the Content by End User and the use of the Content by Principia and any other user of the Software pursuant to clause 5.2, (d) the Content does not contain any viruses, worms, Trojan horses, malicious code or other harmful or destructive content, and (e) the Content does not contain any infringing, libellous, or otherwise unlawful or tortious content.

6. Warranties

6.1 The extent, nature and quality of the services to be performed by Principia are determined by the Agreement and the Documentation. Any other information or requirements do only form part of the Agreement if and insofar Principia and End User so agree in writing or if Principia so confirms in writing. Product descriptions, illustrations, test programs, etc. represent mere service specifications but do not constitute guarantees or agreements on certain specifications. In order to be valid, an agreement on a guarantee requires the written confirmation from management personnel of Principia.

6.2 Any no-fault liability of Principia for the existence of initial defects shall be excluded.

6.3 End User’s claims for damages for a breach of this warranty are subject to the limitations set forth in clause 15.

7. Maintenance and Support

7.1 Principia shall provide End User with support services for the Software including the rectification of defects in the Software to the extent agreed in the Agreement.

7.2 End User shall report any defects exclusively via the email support system offered by Principia, the support option within the Software.

7.3 Principia shall keep End User informed at reasonable intervals and to a reasonable extent of the status of the rectification of a defect. Principia makes no assurances as to the time at which a defect shall be removed.

7.4 In the event of defects of the Software leading to a material reduction of the usability of the Software, Principia shall be required to use commercially reasonable efforts to rectify the defect and if Principia is unable to materially restore such functionality within a reasonable period of time from the date of notice of said defect, End User shall be entitled to terminate the Agreement.

7.5 Under no circumstances shall End User be entitled to obtain the source code of the Software.

7.6 Both, End User and Principia acknowledges that any Confidential Information provided or received under this Agreement may be subject to export control laws and regulations, including but not limited to the Export Administration Regulations (“EAR”) administered by the Bureau of Industry and Security, U.S. Department of Commerce (15C.F.R.parts730-774), and the International Traffic in Arms Regulations (“ITAR”) administered by the Directorate of Defense Trade Controls, U.S. Department of State (22C.F.R.parts120-130) (collectively the “Export Control Laws”). Principia and End User agrees that it will strictly comply with all applicable requirements under all Export Control Laws. As such, End User agrees not to export or transfer by any means, electronic or otherwise, any Confidential Information without complying in all respects with the Export Controls Laws, and any relevant export licenses, guidelines, notices, or instructions relating thereto. Principia and End User also agrees that it shall not export, re-export, transfer, disclose, or otherwise provide the other Party’s technical data controlled by Export Control Laws to any foreign persons or foreign commercial entities unless it receives advance written authorization from the Disclosing Party. All technical data, including but not limited to, drawings, diagrams, technical data and similar information, which are subject to the International Traffic in Arms Regulations (“ITAR”) or the Export Administration Regulations (“EAR”) shall be marked as such prior to disclosure to the receiving party.

8. Legal Defects in the Software

8.1 To the extent that claims are made against End User by third parties alleging the infringement of property rights arising from the use of the Software, End User shall notify Principia without undue delay at least in text form (email shall suffice). Principia shall at its own discretion fulfil or defend the third-party claims or end the dispute by way of settlement. End User grants Principia the sole authority to decide on defence of rights and settlement negotiations. End User shall furnish Principia with any powers of attorney which may be required in this regard on a case-by-case basis and End User shall support Principia in the defence in any manner which may be reasonably expected.

8.2 In the event of an impairment of the permitted use of the Software due to a legal defect, Principia shall remove the reason for the claim for infringement of property rights within a reasonable period. At Principia’s discretion, Principia shall do so either by acquiring the right to continue to use the relevant services or by amending or replacing the relevant services within a reasonable scope.

8.3 Principia shall only be liable in respect of the infringement of property rights to the extent that the Software has been used in accordance with these Terms and the Agreement. Principia shall not be liable if the Software is modified by End User or third parties or is combined, operated or used with programs or data not provided by Principia or approved in advance in writing by Principia and third-party claims are derived therefrom.

8.4 If claims are made against Principia within the scope of the foregoing provisions in clauses 8.3, End User shall indemnify Principia from such claims upon first request.

9. Additional Services

9.1 Principia and End User may agree on the provision of additional services by Principia to End User (the “Services”) on a case by case basis. The Services may include but are not limited to training and enablement services and/or general consulting services in connection with the use of the Software by End User. Principia and End User shall agree on the scope of the Services as well as the Service fees and the Service term (if any) on a case by case basis.

9.2 All Services shall be rendered on a time and materials basis. End User shall reimburse Principia for travel and expenses (at cost) incurred in connection with the Services (if any).

9.3 When providing the Services, Principia does not owe and shall not be liable for any specific outcome or result.

9.4 End User agrees to provide reasonable cooperation and information as necessary to permit Principia to perform the Services. Principia staff shall not be integrated into the operational organization of the End User. Instructions to Principia staff must not be given by End User’s staff or representatives but only by Principia’s representatives.

10. Subscription Term | Termination

10.1 The term of the Agreement shall initially be one (1) month or twelve (12) months, starting on the date agreed between Principia and End User. It shall always renew by another one (1) month or twelve (12) months unless earlier terminated in accordance with these Terms (the initial term and any renewal term thereof together the “Subscription Term”).

10.2 Principia and End User may terminate the Agreement for convenience with effect to the end of the then current Subscription Term with two (2) weeks’ prior notice. Any right to terminate the Agreement for convenience with effect prior to expiry of the Subscription Term shall be excluded.

10.3 For a period of sixty (60) days following the end of the Subscription Term, End User shall have the right to create backup copies of the Content. Principia shall be entitled to restrict End User’s access to the Content thereafter. Principia may retain the Professional Content for the purpose of enabling any future use of the Software by End User (if any). Clause 5.2 applies.

11. Confidentiality

11.1 If Principia or End User receive Confidential Information (as defined below), they may only use such Confidential Information to exercise their rights and fulfil their obligations under the Agreement and shall take reasonable measures to avoid unauthorized disclosure or misuse of Confidential Information. They shall not disclose Confidential Information, except (a) to their employees, subcontractors, or professional advisers who have a legitimate need to know the Confidential Information and are legally bound to keep such Confidential Information confidential, (b) to a potential acquirer of its relevant assets, stock, or business under a strict duty of confidentiality, but only to the extent such potential acquirer has executed a term sheet, letter of intent or other similar agreement to negotiate such acquisition, and (c) as required to be disclosed by applicable law, or judicial or other governmental or regulatory order. These Terms and the Agreement constitute Confidential Information of Principia.

11.2 “Confidential Information” means any information that is directly or indirectly disclosed or made accessible in connection with the Agreement (a) to Principia by or on behalf of End User, or (b) to End User by or on behalf of Principia, and which is identified as ‘confidential’ or ‘proprietary’ or which, given the nature of the information or circumstances surrounding the disclosure, should reasonably be understood by the recipient to be confidential or proprietary, but does not include information that the recipient can demonstrate it already rightfully knew or possessed, becomes public through no fault of the recipient, is received by the recipient from a third party with the legal right to disclose it, or can be shown to have been independently developed by the recipient without reference to the discloser’s Confidential Information.

12. Data Protection

Principia and End User shall comply with any applicable laws concerning the protection of personal data including but not limited to the EU General Data Protection Regulation. If required by such laws, Principia and End User shall enter into a separate written agreement on the processing of personal data.

13. No Set-off | Limitation of Right of Retention | No Assignment

13.1 End User may only invoke a right to set-off and assert a right of retention to the extent that its claims have been (a) finally established by a court of law, (b) are uncontested, (c) or have been acknowledged by Principia.

13.2 End User shall not assign any of its rights or obligations under these Terms or under the Agreement without the prior written consent of Principia.

14. Principia’s Liability

14.1 Principia shall be unrestrictedly liable for (a) injury to life, body or health, (b) damage caused intentionally or with gross negligence, (c) damage resulting from the breach of Principia’s primary obligations whereby primary obligations are such basic duties which form the essence of the Agreement, which were decisive for the conclusion of the Agreement and on the performance of which End User may rely, (d) damage resulting from the absence of any guaranteed characteristics.

14.2 Any other liability of Principia not listed in clause 14.1 shall be excluded.

14.3 The total liability of Principia arising out of or in connection with these Terms and the Agreement, whether in contract or tort or otherwise shall in no circumstances exceed a sum equal to 150% of the total fees paid (plus fees payable) by End User in the twelve (12) months immediately preceding the event which gave rise to the liability.

14.4 Principia shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken.

14.5 End User agrees and acknowledges that the Software offers an engineering simulation service that analyses data uploaded by End User and provides simulation capabilities relating to, for example, multibody dynamics, as the case may be. As a consequence, Principia is not responsible for (a) the correctness, completeness, integrity and accuracy of any data transmitted to Principia or uploaded into the Software by End User, (b) any Content as defined in clause 5.1, (c) any conclusions drawn by End User or any third party from any simulation, calculation, modelling or other process or operation executed by the Software or by End User using the Software, (d) the technical, scientific, legal and commercial feasibility of any project, product and undertaking of End User or any third party, and (e) the economic and financial viability of any project, product and undertaking of End User or any third party.

15. Revision of these Terms

15.1 Principia may amend and/or update these Terms with future effect from time to time and as necessary for technical, economic or legal reasons.

15.2 Any revision of these Terms shall be announced to End User in text form (simple email shall suffice) no later than six (6) weeks before their proposed effective date.

15.3 End User may either approve or object to the revision before their proposed effective date. The revision shall be deemed approved by End User, unless End User objects to the revision before their proposed effective date. Principia shall expressly inform End User thereof in the respective announcement.

16. Applicable Law | Jurisdiction

16.1 These Terms and any Agreement and all rights arising from or in connection therewith shall exclusively be governed by Austrian law excluding any of its conflict of laws provisions which lead to the application of the law of a country other than Austria. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

16.2 If End User is a business or a business person acting in the course of their business, the venue of jurisdiction for all disputes arising from or in connection with these Terms and any Agreement shall be Linz, Austria. In other cases, the statutory rules on the place of jurisdiction shall apply.

17. Written Form | Severability

17.1 Amendments and supplements to these Terms and or the Agreement shall be subject to a written agreement by End User and Principia in order to be valid. The same shall apply to any agreement to deviate from or cancel this requirement of written form.

17.2 Should any provision of these Terms be or become ineffective or invalid in whole or in part, the effectiveness and validity of the other provisions of these Terms shall not be affected. Such ineffective or invalid provision shall be replaced by a provision which comes as close as legally possible to what Principia and End User would have agreed, pursuant to the meaning and purpose of the original provision and of these Terms if they had recognised the ineffectiveness or invalidity of the original provision. If the ineffectiveness or invalidity of a provision is based on the determination of a certain level of performance or a certain time (deadline or fixed date), such ineffective or invalid level or time shall be replaced by the level or time which comes as close as legally possible to the original level or time. The foregoing shall also apply to any possible omission in these Terms that was not intended by Principia and End User. It is the express intention of Principia and End User that this savings clause has the effect of shifting the burden of proof.

18. Miscellaneous

18.1 Wherever the expressions “in writing”, “written form” or variations thereof are used in these Terms, the electronic exchange of copies of handwritten signed documents shall suffice.Unless expressly stated otherwise in these Terms, simple emails shall not suffice.

18.2 Except as otherwise expressly provided for in these Terms, any notices and declarations submitted by End User to Principia, including but not limited to notices of termination or setting of deadlines, shall be made at least in text form to be valid; a simple email shall suffice if not stipulated otherwise in these Terms.