Online Software Licensing and Software Services Agreement
- version 1.2 - July 9, 2020 – Deltares USA Inc. 

 

If you require a printed version of this Software Licensing and Software Services Agreement. prior to accepting these terms and conditions, please use the printing option via your web browser to print this page.

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Please read this software license & services agreement.

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This is a legal agreement between the prospective user, either an individual or an entity, (hereafter: “User”) and Deltares USA Inc. (hereafter “Deltares USA”) to license to User the software as described below (hereafter “Program”) and provide User with related services (hereafter “Services”). 

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By marking the “I Accept” checkbox:

1. You expressly declare you are authorized to act on behalf of User for the purposes of accepting this software license and services agreement (hereafter “License & Services Agreement”);

2. You expressly accept on behalf of User this License & Services Agreement and accept being legally bound by the terms and conditions contained herein.

 
If you are not authorized to act on behalf of User to accept the terms of this License & Services Agreement, or if User does not agree with the terms of this License & Service Agreement, please do not mark the “I agree” checkbox and close this web page.

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You are not allowed to copy, distribute, install or use the Program without an agreement with Deltares USA. If you do not agree to the terms of this agreement, you must promptly stop installing this Program and/or do not download the Program from our site. Any further actions with respect to the Program without an agreement with Deltares USA are in violation of copyright law.  Downloading, installation and/or use of the Program implies acceptance of this agreement.

 

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Deltares USA is licensed by Stichting Deltares in the Netherlands (www.deltares.nl)  (hereafter “Stichting Deltares Netherlands”) to sublicense software products.  Many of the software Deltares USA distributes is available as free software or in source code format. This will be available to you at http://oss.deltares.nl/.

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1. Definitions 

1. License & Services Agreement: this Deltares USA, Inc, Software Licensing and Software Services Agreement and its terms and conditions set out in this form, agreed for the specific Webshop transaction between User and Deltares USA to provide user rights for the Program and/or to provide Services Licensee selected in this Webshop for the compensation displayed in the Webshop and as confirmed in the Webshop by Deltares USA.

2. Program: software product(s) and related documentation.

3. Services: maintenance and support services related to the Program. 

4. User: the natural person or legal entity who has entered into the License & Services Agreement with Deltares USA for the provision of user rights to the Program and/or the provision of Services.

5. Webshop: the Deltares USA webshop for Deltares USA Programs and Services www.deltares-usa.us.

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2    General 

1. The License & Services Agreement apply to the Program and/or the Services User selected in this Webshop in the course of the Webshop transaction.     

2. The License & Services Agreement shall apply with the explicit exclusion of any type of terms and conditions of User.

3. Amendments to the License & Services Agreement shall be binding only if and in so far as they have been confirmed in writing by Deltares USA.

4. In the event that any of the terms and conditions of this License & Services Agreement are declared null and void or otherwise not binding, the unaffected terms and conditions will remain unimpaired, except for voidance of article 7.2 in which case the user right will be limited to the user rights described in article 4.3. For other voided terms Deltares USA shall replace the ineffective term by a provision that, as far as is legally possible, closely approximates the original provision.

5. While Deltares USA supplies the Program to the User, applications and models using the Program are in the discretion of the User and solely at its risk. The Program should only be used by skilled persons, who have experience in the relevant field and who have sufficient knowledge of the properties, possibilities, limitations and the purpose of the Program. The User should study the relevant documentation prior to using the Program. And the User should ensure thorough testing and validation of each model created with the Program to ensure its accuracy, prior to using the outcomes of running the Program. 

6. Deltares USA has the right to involve third parties in the execution of the License & Services Agreement.

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3. Make Program available

1. Deltares USA makes the Program available to User by sending User the Program including available documentation, on a data carrier, or by providing User with a written notice that the Program is available for downloading by User.

2. Deltares USA makes available to User the version of the Program that is the most recent at the moment of making the Program available. 

3. Exceeding a delivery period shall not entitle User to claim any damages.

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4. Licenses and intellectual property

1. Deltares USA grants User a non-exclusive, non-transferable right to use the Program, for an indefinite period of time and in consideration of payment of a one-time fee. 

2. The right of use is limited to User’s own use of the Program and to the number of agreed users as indicated in the product description. User is not authorized to grant any sub-licenses for the Program to third parties, or in any other way to facilitate the use by third parties.

3. IN CASE USER IS A FEDERAL OR STATE  ORGANIZATION AND THUS NOT ALLOWED TO AGREE TO ARTICLE 7.2 THE RIGHT OF USE IS LIMITED AS FOLLOWS: THE RIGHT OF USE IS LIMITED TO SCIENTIFIC RESEARCH AND/OR TO EDUCATION. THE PROGRAM MAY NOT BE USED FOR OPERATIONAL PURPOSES, SUCH AS  FORECASTING SYSTEMS OR OTHER SUPPORT TO PUBLIC AND PRIVATE DECISION MAKING AND IN RELATION TO AND/OR SUPPORT TO ENGINEERING. Operational use by a Federal or State organization not accepting Article 7.2 is only possible with a negotiated contract.

4. User does not have the right to modify the Program.

5. Except as allowed by applicable law, but in that case, limited to the extent required by that law, User may not, and may not authorize any third party to reverse engineer, decompile or disassemble the Program in whole or in part nor create any derivative works from the Program.

6. Deltares USA is entitled to take technical measures to prevent unauthorized use of the Program. User shall not remove or have removed or circumvented such technical provisions or devices intended for the prevention of unauthorized use of the Program.

7. User acknowledges that the Program is confidential in nature and may contain trade secrets of Deltares USA  and/or Stichting Deltares, Netherlands. User will keep confidential all information from Deltares USA of which they should reasonably understand is confidential information and will not disclose such information to third parties.

8. To the best of Deltares USA’ knowledge and belief, the Program does not infringe any third party copyright or any other intellectual property. Any responsibility or liability of Deltares USA for claims, costs, expenses and/or consequential losses or damages resulting from or arising out of any infringement of intellectual property rights is excluded.

9. In case of (i) an apparent risk or (ii) it is alleged or proven in legal proceedings that use of the Program infringes upon any intellectual property rights of third parties, Deltares USA has the right, in consultation with User, but at its sole discretion, to:

a.    take legal action for its own account; in this event, User is obliged to allow Deltares USA to join or intervene in the existing proceedings;
b.    reach a settlement for its own account;
c.    within the limits of the purpose of the Program, carry out repairs and/or alterations at its own expense until the alleged or proven infringement ceases to exist and replace free of charge the copies of files and/or documentation causing the infringement; or
d.    terminate the License & Services Agreement and return to User the consideration that User paid under the License & Services Agreement without any other right to compensation for User.
If any of the situations as referred to above in (a) through (c) occur, Deltares USA has the right to impose certain (temporary) user-restrictions upon User so that the infringement, at least temporarily, no longer exists, without any rights to compensation for User.

 

5. Services - maintenance and support

This article applies to the Services for maintenance and support User selected.

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A. Maintenance  

1. Maintenance of the Program consists of providing to the User corrections of errors in the Program, and any updated and new version of the Program during the period of maintenance purchased by the user.

2. Deltares  USA at all times has the right to modify later versions of Program with regard to its appearance, programming, arithmetical and/or functional properties at its sole discretion

3. With each installation of a new version of the Program, User shall uninstall all files that are to be replaced. Consequently, User shall never have two (2) or more versions of the Program in use without the written consent of Deltares USA.

4. Notwithstanding article 5B2, User is not obliged to follow the Deltares USA policy regarding new versions of the Program.

5. Deltares USA will provide a description of modifications to any new released version of the Program. Concurrently, Deltares USA is under no obligation to identify all changes in a new released version and the User is therefore directed to the documentation for a new released version to evaluate any changes.

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B  Support

1. Support consists of: 

   1. providing guidance to User concerning the operation of the Program; and

   2. redirecting User to the Program documentation where the User will find her question answered, and

   3. providing User with examples of solutions used in test cases or other applications available to the support staff 

​up to the number of hours of support User selected.

1. Deltares USA is not obliged to provide support with regard to versions older than one (1) year if more recent versions are available.

2. Deltares USA is not obliged to provide support concerning the Program if User uses the Program in combination with hardware and/or operating systems that do not comply with the system requirements as indicated in the documentation for the Program.

3. Support does not include assistance in actions aimed at resolving engineering problems or modeling guidance. Support is strictly focused on providing guidance for operating the Program.

 

6.    Guarantees

1. For up to three (3) months after the date of delivery, Deltares USA guarantees, as stated in this article, the functioning of the Program in conformity with the accompanying documentation, if available.

2. If errors in the Program or the documentation that prevent the essential functioning of the Program become apparent during the term of guarantee, and User has promptly informed Deltares USA thereof, Deltares USA shall, in consultation with User, but at its sole discretion:

   1. either at its own expense carry out repairs until the error is solved in such a way that the essential functioning of the Program is possible and/or replace, free of charge, the part of the Program and/or documentation containing the error with the repaired one; or

   2. terminate the License & Services Agreement unilaterally and return the paid consideration to User, without any other rights to compensation for User.

3. The guarantee as stated in articles 6.1 and 6.2 shall not apply if User uses the Program in combination with hardware and/or operating systems that do not comply with the system requirements as indicated in the user manual for the Program. 

4. The guarantee as stated in articles 6.1 through 6.3 is the only guarantee Deltares USA gives on the Program. Any other guarantee or warranty is explicitly excluded. Deltares USA specifically does not guarantee that under all circumstances correct results can be obtained with the Program and/or that the Program is fit for solving a technical engineering problem.

5. In the event that, before the end of the term of guarantee as stated in article 6.1, a revised version of the Program is provided on the basis of article 6.2 or 6.6, Deltares USA gives a guarantee on the new version until the latest of either the expiration of the original guarantee or one month after the delivery of the revised version.

6. If, according to Deltares USA, it becomes apparent that use of the Program may cause damage, Deltares USA, in consultation with User, but at its sole discretion, has the right to:

   1. either, at its own expense carry out repairs and/or alterations until the risk of damage ceases to exist and/or replace free of charge parts of the Program or documentation;

   2. impose on User temporary or permanent restrictions concerning the use of the Program, so the risk of damage no longer exists; 

   3. terminate the License & Services Agreement and return the paid consideration to User without any other rights to compensation for User.

7. All guarantees are void if User (i) has altered the Program in any way, (ii) uses or has used the Program in combination with hardware and/or operating systems that do not comply with the system requirements as indicated by Deltares USA, or (iii) has failed to notify Deltares USA in writing of defects in the Program within a reasonable period after their discovery or (iv) has not paid the amounts due.

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7.    Liability

1. User is at all times solely responsible for the use of the Program and the interpretation and use of the results obtained with the Program, and for the consequences that arise from using these results. Deltares USA and Stichting Deltares Netherlands are not liable for damage or other expenses of any kind incurred by User or third parties partially or wholly due to the use of the Program and the interpretation and the use of the results generated by the Program. This includes without limitation damage or expenses that are partially or wholly the result of or connected with:

   1. defects in the Program that have not been disclosed to the User and of which the User is not otherwise aware;

   2. the temporary or permanent inability to use the Program, partly or completely, as a result of or in connection with defects in the Program or alleged or legally proven infringements upon any rights of third parties as a consequence of the use of the Program by User.

2. User shall indemnify, hold harmless and defend Deltares USA and Stichting Deltares Netherlands against any action brought by a third party against Deltares USA to the extent that such claim is connected to the use of the Program by User, the interpretation of the results and/or the use of these results.

3. Deltares USA’ liability arising out of default, contract, negligence, tort, breach of any statutory duty or otherwise shall be limited to direct damages, with a maximum of the total amount paid by the User in the six (6) months prior to Deltares USA’ default. Direct damages in this context refer exclusively to:

   1. reasonable costs incurred by User to have the performance of Deltares USA comply with the terms of the License & Services Agreement, this form of damage will not be compensated if the License & Services Agreement is terminated by User; 

   2. reasonable costs incurred to establish the cause and the amount of the damage, insofar this is related to direct damage as described within these Terms;

   3. reasonable costs incurred to prevent or reduce damages, insofar User shows that such costs have actually led to limitation of direct damages pursuant to these Terms.

4. Deltares USA and Stichting Deltares Netherlands shall not be liable for loss of profit or revenue or for indirect, special or consequential damages, including, but not limited to, loss of profit and revenues.

5. Deltares USA’ liability as a result of default only arises after User has given Deltares USA notice of default. The notice of default shall be in writing, leaving Deltares USA a reasonable time to restore any shortcomings. 

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8.    Fee’s and Rates

1. User agrees to pay Deltares USA as compensation for the User selected user right to the Program and Services to be provided by Deltares USA, the fees and rates stated in the Webshop at the moment of execution of this License & Services Agreement. 

2. The fees and rates meant in 8.1 are exclusive of government levies, and also exclusive of dispatch costs, transport costs, travel costs, packaging costs, installation costs, communication costs, cost of agents and brokers and other costs to enable the use of the Program to User unless explicitly stated otherwise by Deltares USA.

 

9. Transfer of rights

1. User is not allowed to transfer the License & Services Agreement, nor any of its rights and obligations arising therefrom, to a third party without the prior written approval of Deltares USA.

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10.    Term and termination

1. The License & Services Agreement is effective from the moment Deltares USA has confirmed the User-selected Program and/or Services transaction as set out in article 1.1.

2. Services for maintenance and support are for a period of one (1) year. Termination for convenience before the end of the term of the License & Services Agreement is not allowed.

3. Aside from what is determined elsewhere in this License & Services Agreement, a party has the right to terminate the License & Services Agreement for cause per registered letter:

   1. if the other party defaults in its performance of obligations arising from the License & Services Agreement and continues to do so after proper default notice, in which the other party is given a reasonable term to fulfill its obligations.

   2. without any prior notice or notice of default being required, in the event that the other party applies for a suspension of payment or is granted a suspension of payment; files for bankruptcy or is declared insolvent; is liquidated or ceases to exist for reasons other than a merger; a considerable extent of the other party’s property or of the Program is seized, or if the other party is considered to be unable to fulfil the obligations arising from the License & Services Agreement.

4. In the event of termination of the License & Services Agreement in accordance with article 10.3, all invoiced but yet unpaid sums shall immediately be due and payable.

5. In the event of termination of the License & Services Agreement, User shall immediately (i) cease all use of the Program, (ii) delete all copies of the Program from the hardware and (iii) return all copies of the Program and the accompanying documentation to Deltares USA.

 

11.    Disputes and applicable law

1. Maryland Law shall apply to the License & Services Agreement.

2. All disputes arising pursuant to the License & Services Agreement or derived agreements shall be determined as follows: Deltares USA and User will negotiate in good faith to reach an agreement. If negotiations are unsuccessful, Deltares USA and User agree the dispute shall be settled by mediation. In the event the dispute or any issues remain unresolved after the above steps, the disagreement shall be submitted solely to the competent court in the State of Maryland.

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12. Miscellaneous

1. The legal relationship of Deltares USA towards the User under this License & Services Agreement shall be that of an independent contractor. This License & Services Agreement shall in no way be deemed to construe a joint-venture or legal entity or a legal relationship of agency or employment. 

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Deltares USA, Inc.
8601 Georgia Ave, Suite 508
Silver Spring, Maryland   20910
Telephone: 301-503-8131
Email: info@deltares-usa.us

Silver Spring, MD  May 2020