Licence agreement – Ace of Aircraft
This licence agreement (the “Agreement”) has been established between AERO CONCEPT ENGINEERING, Technopole du Circuit la Soufflerie, 58470 Magny Cours, a simplified joint stock company (société par actions simplifiées), registered on the register of trades and companies (RCS) of Nevers, under number 442 010 948 (hereinafter “ACE”) and the Licensee, on the Date of Entry into Force.
ACE and the Licensee are hereinafter referred to individually as the Party or collectively as the Parties.
ACE publishes and markets a computational fluid dynamics (CFD) Software Suite to optimise aircraft aerodynamics.
Under the terms of the Agreement, ACE allows users to access limited functionalities of the Software Suite for the purposes of familiarisation with the Software Suite and to allow the Licensee to test its concepts on the Software Suite. This licence is granted for personal and non-commercial use, and entitles the user to carry out ‘Draft’ and ‘VLM’ type modelling.
The Licensee has had the opportunity to familiarise itself with all the features and functionalities of the Software Suite in its limited form, has been informed of the limitations and restrictions associated with its use and agrees to these. In consequence of which, the Licensee agrees to make use of the Software Suite as is, on its own information technology (IT) configuration.
The Agreement is made up of this document.
Some features of the software require third-party software to work as intended, and they have their own license agreement. These third-party software are Ghostscript and AVL.
The Parties have agreed as follows:
Agreement: refers to the contractual whole applicable to the relations between ACE and the Licensee, consisting of this licence.
Anomaly: refers to a major non-conformity between the latest version of the Software Suite delivered and its Documentation, reproducible by ACE based on information supplied by the Licensee on an IT configuration substantially similar to that of the Equipment.
Confidential Information: refers to information in the possession of one or other of the Parties to the Agreement that is not in the public domain, which is identified as confidential or may reasonably be identified as confidential and/or proprietary. ACE confidential information includes, without limitation, this Agreement, the Documentation, the Software Suite, communication videos and images and all computer programs supplied with the Software Suite, and all the algorithms, methods, techniques, codes (Source and Object Code) and processes disclosed or employed in the performance of the Agreement. Confidential Information does not include information (i) that has fallen or may fall into the public domain other than through a failing or breach on the part of the receiving Party; (ii) that the disclosing Party regularly discloses to third parties without benefit of any non-disclosure agreement; (iii) that the Receiving Party obtains from a third party under no restriction on disclosure and not in breach of any non-disclosure agreement; or (iv) which is developed independently by the Receiving Party without having access to Confidential Information.
Date of Entry into Force: refers to the date of downloading the limited functionality version of the Software Suite.
Delivery Date: refers to the date on which ACE will provide the Licensee with a licence key to activate the limited functionalities of the Software Suite according to the licence level indicated in the Licence Request Form provided by ACE on its website.
Documentation: refers to all the user and technical documentation and particularly, where applicable, the tutorials made available to the Licensee by ACE, online and/or included in the Software Suite, relating to the features, functionalities and operation of the Software Suite as they exist on the Date of Entry into Force. The Licensee acknowledges having taken cognisance of this Documentation and of the limitations on the free version of the Software Suite.
Equipment: refers to the Licensee’s hardware and/or software configuration (for example, the computer, IT platform, operating systems and/or database management system) described in the Licence Request Form pertaining to the use of the Software Suite. In the absence of any indication in the Licence Request Form, this is the hardware and/or software configuration for which ACE grants the Licensee licence to use the Software Suite. The licence granted to the Licensee is intrinsically linked to the Equipment and may not be executed on any other equipment (except in the case of what are known as “Access” licences). The Licensee may at any time submit to ACE a request to modify the Equipment associated with the licence.
Intellectual Property Rights: refers to all intellectual and/or industrial property rights, including all patents, patent applications, copyright, design rights, business secrets, trademarks and service marks.
Licence Request Form: refers to the form provided by ACE on its website ( https://www.aero-ce.com/en/ace-of-aircraft-downloads ), by means of which the Licensee can request a licence key after downloading the Software Suite.
Licensee: refers to the natural or legal person to whom this Licence is granted, as identified in the Licence Request Form.
Object Code(s): refers to the computer programs assembled, compiled or converted, in magnetic or binary digital forms, which are computer readable and exploitable.
Purchase Order(s): refers to each purchase order or any other similar order form signed by the Parties and referring to the terms of the Agreement. Amongst other matters, Purchase Orders set out the provisions for the corresponding licence fees and any restriction upon use.
Restrictions on Use: refers to any restriction on use of the Software Suite, as specified in the Documentation (for example, including but not limited to the number of named or simultaneous Users, sectors in which the Software Suite may not be used, the limited functionalities of the Software Suite, etc.)
Software Suite: refers to the limited functionality version of this licence, as identified in the Licence Request Form.
Source Code(s): refers to the computer programs written in programming languages and readable by humans, access to which allows in particular for corrective or upgrading maintenance.
ACE asserts its title to all the Intellectual Property Rights necessary to the conclusion of this licence or that, where applicable, it has obtained from any title holders all the authorisations necessary for this purpose.
Subject to the terms and conditions of the Agreement, ACE grants the Licensee a non-exclusive and non-transferable licence for use of the Software Suite (including all updates, enhancements or modifications to the Software Suite that ACE may see fit to provide during the course of the Agreement).
This licence grants the Licensee the right to use the Software Suite solely on the Equipment and solely for the internal IT operations of the Licensee, except with prior written approval from ACE for any extended use. This licence is granted strictly for the number of workstations, Users and/or Equipment stipulated in the Licence Request Form.
This licence is granted to the Licensee for the term stipulated in the Licence Request Form, which may not exceed the period of the Software Suite’s copyright protection worldwide. The term Software Suite user licence is understood to mean the right to make permanent or temporary copies of the Software Suite for the sole purposes of its uploading, display, operation, transmission or storage exclusively on the Equipment and exclusively for the number of Users specified. No licence granted may be shared or operated simultaneously on several different computers or on any other media.
In consequence of which, the Licensee shall not:
The Licensee undertakes to inform Users of the limitations on the use of the Software Suite with respect to the terms of this licence and vouches for User compliance with said terms.
All rights not explicitly granted pursuant to the Agreement are expressly reserved to ACE.
Unless expressly stipulated otherwise, the Licensee may make a reasonable number of copies of the Documentation for internal use only, in accordance with the provisions of the Agreement.
The Licensee’s use of the Software Suite is subject to all the Restrictions on Use specified in the Documentation. Except in those cases expressly provided for in the Intellectual Property Code, the Licensee shall not carry out any reverse engineering, disassembly or decompiling of the Software Suite or authorise anyone to do so. The Licensee also shall not use the Software Suite to provide office services or to offer facilities management and/or data processing services to third parties. The Licensee shall not allow any use of the Software Suite by anyone other than the designated Users and shall not distribute all or any part of the Software Suite to anyone other than said Users. The Licensee acknowledges and agrees that a specific protection program or a code (key) is required in order to use the Software Suite. On a case-by-case basis, this key may prevent use of the Software Suite on (i) a system configuration other than that of the Equipment or (ii) for a number of Users in excess of the number specified in the Licence Request Form.
The Licensee may modify the Equipment, subject to giving ACE prior notice in writing.
Unless expressly stipulated otherwise, the Licensee is not authorised to access the Source Code of the Software Suite or to make any use of it whatsoever.
In order to operate correctly, the Software Suite relies on pre-existing third-party software released under open-source licence, as referred to in Annex 1 “Third Party Open-Source Software”. ACE offers no warranty of any kind on third-party software, which is provided to the Licensee as is.
The Licensee shall be responsible for compliance with the terms of said licences by both the Licensee and its Users, and accordingly holds ACE harmless in the event of any claim, judgement and financial consequences to which ACE might be exposed in this respect.
In consequence of the restrictions applied to the Software Suite, it is agreed between the Parties, by way of derogation, that the licence described in the Agreement is granted free of charge.
The Licensee will be kept informed by ACE of new versions of the Software Suite as they become available, according to a timetable determined by ACE. The Licensee will be able to download these new versions using the licence key.
This agreement does not include any technical support from ACE to the licensee.
The Licensee certifies having read and understood the technical prerequisites for use of the Software Suite, as set out in the Documentation. The Licensee warrants in particular that its installed IT base complies with these prerequisites. The Licensee thus acknowledges having been made fully aware of the features of the Software Suite, its functionalities, constraints and limits, and its suitability for the Licensee’s needs. The Licensee confirms having been duly informed and accordingly releases ACE from the need to provide any further information.
The Licensee is informed of the fact that the reliability of the results obtained when using the Software Suite depends on compliant use of the Software Suite, and compliance, in particular, with its Documentation.
The Licensee is informed that ACE in no way guarantees the reality of the results, performances or qualities presented by the Software Suite. In consequence of which, the Licensee is aware that no commercial benefit may be expected and agrees to use the Software Suite as is, along with the associated risks.
As a result, the Licensee acknowledges that the results obtained from using the Software Suite are necessarily imprecise and may thus constitute no more than a simple estimate of the future performances of the product being tested. The Licensee is therefore informed of the need to carry out detailed complementary tests and analyses before any marketing and sale of the said products. The Licensee therefore acknowledges that the technical features of the product being tested cannot be based solely on the results provided by the Software Suite.
The Licensee is informed that under no circumstances does use of the Software Suite guarantee validation of the results by certifying and regulatory bodies.
ACE will use its best efforts to ensure that the software operates with a minimum number of Anomalies from the date of its delivery. ACE’s sole obligation in the event of breach of the above warranty, which must be notified to it as provided for in this Agreement, will be to repair or replace the Software Suite giving rise to the breach. If ACE is unable to repair or replace this Software Suite within a reasonable period of time, the Licensee may, subject to the provisions of the Agreement, exercise the remedies open to it in law to obtain reparation for the prejudice directly caused by the breach of said warranty. It is expressly agreed that this clause constitutes ACE’s sole liability in respect of warranty, and the only remedy admissible against it. It is stipulated that, should the Licensee fail to notify ACE in writing of its claims under the warranty within the aforementioned contractual time limits, ACE shall not be under any warranty obligation to the Licensee.
The warranty granted to the Licensee pursuant to this article excludes and replaces all other warranties. ACE offers no other warranty, express or implied, with respect to all or part of the Software Suite. ACE expressly excludes all warranties relating to the merchantability of the Software Suite or its aptitude to meet a particular Licensee use or need. ACE also offers no warranty that the Software Suite, either wholly or partially, is free from error or Anomalies, that it will function without interruption or be compatible with any computer hardware or software other than the Equipment, or that it will meet the specific needs of the Licensee.
ACE shall not be required to offer the warranty stipulated in this article should the Anomalies, notified to it within the prescribed time limit, have been caused by (i) a modification of the Software Suite not expressly approved in advance by ACE, (ii) failure by the Licensee to immediately implement ACE’s recommendations and/or install the corrections and/or updates and/or new versions provided by ACE, (iii) the Software System being used or combined with any computer, IT platform, operating system and/or data management system other than the Equipment; or (iv) any use of the Software Suite not compliant with the Documentation or with any ACE recommendation.
Except in so far as authorised pursuant to this Agreement, the Receiving Party shall not disclose the Confidential Information of the Disclosing Party to a third party and shall make no use of such information. Each Party shall deploy at least the same degree of diligence in maintaining the confidentiality of the other Party’s Confidential Information as it does to maintaining the confidentiality of its own Confidential Information, and a reasonable degree of diligence in any event. The obligations under this clause shall remain in full force for a period of ten (10) years from the date on which the Receiving Party receives the Confidential Information. Obligations upon the Licensee to protect the confidentiality of the Software Suite, however, including all algorithms, methods, techniques, codes and processes disclosed therein, shall remain in force for a period equal to that of its protection by copyright.
Each Party shall be responsible for ensuring compliance with this obligation of confidentiality by its Users and by all its employees.
ACE shall defend, indemnify and warrant the Licensee against any loss, costs and expenses the Licensee might incur arising from a claim by a third party claiming that the use of the Software Suite breaches its intellectual property rights.
ACE’s obligations under this clause are expressly contingent on the following conditions (i) the Licensee shall notify ACE of the claim in writing, without delay, (ii) the Licensee shall grant ACE, in writing, exclusive control of the reply to be made against said claim, and also of any legal proceedings that might be instituted, and of all negotiations entered into for its settlement (should the Licensee elect to represent its own interests in such proceedings, it is free to do so at its own expense, but in such a way as to ensure that such representation shall not adversely affect ACE’s right to control the defence of such proceedings and to negotiate its settlement); (iii) the Licensee shall cooperate in good faith with ACE to facilitate settlement of the claim or support any defence that might be required, by providing all necessary elements in good time.
The above warranty shall be excluded, however, should the claim arise from (i) any modification to the Software Suite; (ii) the Software System being used or combined with any computer, IT platform, operating system and/or data management system other than the Equipment.
Should the Software Suite be the subject or, in the opinion of ACE, be likely to become the subject of a claim or proceedings for breach of intellectual copyright, ACE may, at its own discretion and at its own expense, take one of the following measures (i) obtain the right for the Licensee to continue to use the Software Suite in accordance with the Agreement, or (ii) replace the Software Suite by one or more products materially equivalent in terms of functions, or modify the Software Suite so as to no longer be in breach, and materially equivalent in terms of functions. The above provisions set out the entirety of ACE’s obligations and responsibilities in respect of a quiet enjoyment warranty.
The Agreement is entered into for a fixed term as stipulated in the Licence Request Form. The Licensee has the option to take out a new licence at the term of the Agreement. Should it not exercise this option, the Licensee undertakes to uninstall the Software Suite and shall supply ACE with an attestation to that effect. The Licensee further undertakes to return all elements associated with the Licence, in particular the Documentation.
The Licensee is informed and agrees that taking out a new licence may entail a change in the financial terms associated with the licence and the application of other contractual provisions depending on the level of licence chosen (paid option). Should this be the case, ACE shall submit a pricing proposal to the Licensee.
The Licensee may terminate the Agreement at any time by ceasing to use the licence or by uninstalling the Software Suite without having to justify or give grounds for its decision.
ACE shall have the right to terminate the Agreement in the event of failure by the other Party to fulfil the obligations arising from this Agreement if a registered letter with acknowledgement of receipt notifying the failure in question fails to produce any effect within thirty (30) days of receipt. The termination will be effective without prejudice to the other rights and remedies to ACE, or to any damages ACE may be entitled to claim.
Notwithstanding the above provisions, if the failure by the Licensee cannot be remedied, ACE shall have the right to terminate the Agreement earlier than within the thirty (30) days stipulated above.
The following shall constitute grounds for automatic termination by ACE without prior notice: any use of the Software Suite in breach of the terms of the Agreement, including but not limited to a breach of the Intellectual Property Rights vested in ACE, the application of reverse engineering to the Software Suite by the Licensee, or use of the Software Suite for unauthorised purposes.
It is understood, however, that notification made by the Licensee to ACE of an alleged breach of the aforementioned contractual warranty shall not constitute notification of termination of the Agreement.
In the event of termination of the Agreement by ACE, the Licensee shall cease all use of the Software Suite, and immediately return to ACE or destroy (at ACE’s request) all copies of the Software Suite, and certify such destruction to ACE in writing. In this context, ACE reserves the right to confirm the destruction of the Software Suite.
All obligations relating to confidentiality, indemnification, the limited liability clause and other provisions that must, by their nature, continue beyond termination of the Agreement, shall continue to apply subsequent to termination of the Agreement, even when such termination is by order of the courts.
All notifications and other communications that may be required or occur pursuant to the Agreement, or required by the regulations applicable, shall be made in writing and delivered by hand or sent by registered letter with acknowledgement of receipt, failing which they shall not be deemed to have been served on the other Party. Said notifications must be directed to the address of the receiving Party as shown in the Agreement or Licence Request Form, or to another such address as the receiving Party may subsequently provide for the purpose.
Neither of the Parties shall be responsible to the other for any failing or delay in fulfilling its obligations under the terms of the Agreement if this is due to circumstances constituting force majeure as defined in the jurisprudence applicable. Should such an event occur, the Party affected shall inform the other Party without delay and by any means available. Should such circumstances persist for a period longer than one (1) month, the Parties shall enter into discussions aimed at reaching a new agreement. If no agreement can be reached after a period of one (1) month, the Agreement may then be freely terminated by the Party whose undertakings are not affected by the said instance of force majeure.
The failure by one or other of the Parties to apply any one or other of the clauses of the Agreement either temporarily or permanently shall under no circumstances be construed as a waiver or relinquishment of the benefits of said clause.
The Agreement shall be governed by and construed in accordance with the laws of France with the exception of its conflict of law rules. Any provision of the Agreement declared null and void for any reason whatsoever shall be deemed unwritten and the remaining provisions shall continue to apply in full. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to either the interpretation or performance of the Agreement.
The Parties undertake to use their best efforts to seek amicable means for the settlement of any dispute that might arise between them, before having recourse to the courts. The more diligent Party shall refer the matter to the other by registered letter with acknowledgment of receipt or by e-mail for the purpose of seeking an amicable settlement.
Any disputes arising from the interpretation or performance of the Agreement may be brought before the courts having jurisdiction.
The licence being granted free of charge, ACE undertakes to correct as soon as possible any anomalies that may come to its knowledge and that occur within the context of a normal use of the licence. Such correction shall take the form, particularly, of the provision of new versions or updates in accordance with ACE’s publishing roadmap.
The Licensee undertakes to comply with all the provisions of the Agreement, and with all rules, laws and regulation applicable to the Agreement and to the use of the Software Suite.
ACE may conduct a maximum of one (1) audit over a sliding 6-month period. Should an audit reveal that the Licensee is using the Software Suite outside the scope granted by the licence concerned (including but not limited to a higher number of users than authorised), the Licensee shall immediately and without prejudice to other forms of remedy available to ACE, reimburse ACE for the cost of the audit, on the basis of the ACE prices applicable at the time of the audit, and also any late payment penalties that may be applicable.
ACE and the Licensee remain independent contractors pursuant to the Agreement, no stipulation of which sets out to create any partnership, joint venture or principal/agent relationship between the Parties.
The Agreement contains the entirety of the obligations undertaken by either Party with regards to its object, and cancels and replaces all verbal or written communications previously exchanged between the Parties with respect thereto. No purchase voucher or other similar document, such as general terms and conditions of purchase, which may be issued by the Licensee shall be applicable or shall have the power to modify the Agreement. No modification to the Agreement shall have effect unless set down in a written amendment signed by each of the Parties.