MorphAn LICENSING CONDITIONS

For the MorphAn distribution (hereafter: Software), including the program Morphan and XBeach 1D.

READ THIS AGREEMENT

THIS IS A LEGAL AGREEMENT BETWEEN THE PROSPECTIVE USER, EITHER AN INDIVIDUAL OR AN ENTITY, (HEREAFTER: LICENSEE) AND STICHTING DELTARES HEREAFTER: DELTARES.

THIS SOFTWARE IS PROVIDED TO YOU ON THE SUSPENSIVE CONDITION THAT YOU ACCEPT THE FOLLOWING AGREEMENT:

BY CLICKING THE "I accept the terms in the License Agreement" BUTTON:
1. YOU EXPRESSLY DECLARE BEING AUTHORIZED TO ACT ON BEHALF OF LICENSEE FOR THE PURPOSES OF ACCEPTING THIS SOFTWARE LICENSE AGREEMENT (HEREAFTER "LICENSE AGREEMENT");
2. LICENSEE EXPRESSLY ACCEPTS THIS LICENSE AGREEMENT AND ACCEPTS TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS CONTAINED THEREEIN.

If you are not authorized to act on behalf of Licensee to agree upon this License Agreement, please do not mark the “I accept the terms in the License Agreement” checkbox and end this install session. Furthermore, do not mark the “I agree” checkbox and end this install session if Licensee does not agree with the Agreement. 

This license agreement comprises the following:

A.	Terms of delivery under the GNU General Public License as published by the Free Software Foundation version 3 for the following files:
1.	xbeach.exe
2.	XBeach.Library.dll
3.	hdf5.dll
4.	hdf5_cpp.dll
5.	hdf5_f90cstub.dll
6.	hdf5_fortran.dll
7.	hdf5_hl.dll
8.	hdf5_hl_cpp.dll
9.	hdf5_hl_f90cstub.dll
10.	hdf5_hl_fortran.dll
11.	hdf5_tools.dll
12.	msvcp100.dll
13.	msvcr100.dll
14.	netcdf.dll
15.	szip.dll
16.	zlib.dll

B.	General terms of delivery for software licensing for all other programs in this Software plus software services by Stichting Deltares (hereafter: the Program).

C.	Specific additional terms of delivery for software licensing for the scripting plugin and XBeach 1D provided by the following files:
1.	DeltaShell.Plugins.XBeach.Common.dll
2.	DeltaShell.Plugins.XBeach.Common.Gui.dll
3.	DeltaShell.Plugins.XBeach1D.dll
4.	DeltaShell.Plugins.XBeach1D.Gui.dll
5.	DeltaShell.Plugins.MorphAnXBeachIntegrator.dll
6. DeltaShell.Plugins.Scripting.dll
7. DeltaShell.Plugins.Scripting.Gui.dll
8. DeltaShell.Plugins.Toolbox.dll
9. DeltaShell.Plugins.Toolbox.Gui.dll

A.	Terms of delivery for programs under the GNU LESSER GENERAL PUBLIC LICENSE as published by the Free Software Foundation version 3.

1. Copyright (C) Stichting Deltares, 2011.

2. This program is free software: you can redistribute it and/or modify it under the terms of the GNU Lesser General Public License as published by the Free Software Foundation version 3.

3. This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU Lesser General Public License for more details.

4. You should have received a copy of the GNU Lesser General Public License along with this Software. If not, see: <http://www.gnu.org/licenses/>.

5. All indications and logos of, and references to, "MorphAn" and "Deltares" are registered trademarks of Stichting Deltares, and remain the property of Stichting Deltares. All rights reserved.

B.	General terms of delivery for software licensing for all other programs in this Software plus software services by Stichting Deltares.

1. General

1.1 These general terms of delivery (hereinafter: Terms) form an integral part of all offers by DELTARES to provide software products and related documentation and/or related services and apply to all agreements between DELTARES and LICENSEE’s of its software products and/or related services.

1.2 The Program is exclusively intended for the use by skilled technicians, who have experience in the relevant field and who have sufficient knowledge of the properties, possibilities, limitations and the purpose of the Program.

1.3 Deltares has the right to involve third parties in the execution of the agreement.

1.4 Additions, alterations or deviations of or to these Terms or to an agreement between the parties must be in written form signed by the parties.

1.5 If these Terms require a written notice, then this can also include notices in digital form, i.e. per fax or e-mail, unless the context indicates otherwise. The party that chooses to make use of an electronic medium has the burden of proof if the other party states that the electronically communicated statement was not received or not received correctly.

1.6 In the event that any of these Terms are declared null and void or otherwise not binding, the unaffected terms will remain unimpaired. Deltares shall replace the ineffective term by a provision that, as far as is legally possible, approximates most closely the original provision.

2. Delivery of Program(s)

2.1 Delivery of a Program takes place when LICENSEE receives the Program including available documentation on a data carrier, or when a written notice is sent by Deltares to LICENSEE that the Program is available for downloading by LICENSEE.

2.2 Deltares shall deliver the most recent stable version (at the time of delivery) of the Program.

2.3 Exceeding a delivery period shall not entitle LICENSEE to claim damages.

3. Intellectual property and Licence(s)

3.1 All rights, including the intellectual property rights, to this Program are owned by Deltares.

3.2 LICENSEE acknowledges that this license does not provide LICENSEE with any rights of ownership to this Program, including any rights to the intellectual property.

3.3 Unless stipulated otherwise, Deltares grants Licensee for an indefinite period of time, a conditional, non-exclusive, non-transferable license, to install and use the Program and the accompanying documentation, this license is provided solely under the condition that Licensee complies with the following provisions. 

3.4 The right of use provided by this license is limited to LICENSEE’s own use of the Program. LICENSEE is not authorised to grant any sublicenses to the Program to third parties, or in any other way to facilitate the use by third parties.

3.5 LICENSEE does not have the right to modify the Program.

3.6 Except as allowed by applicable law, LICENSEE 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.

3.7 Deltares is entitled to take technical measures to prevent unauthorized use of the Program. LICENSEE shall not remove or have removed or circumvent such technical provisions or devices intended for the prevention of unauthorized use of the Program.

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

3.10 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 has the right, at its sole discretion, to:

a. take legal action for its own account; in this event, LICENSEE is obliged to allow Deltares 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 agreement without any other right to compensation for LICENSEE.

If any of the situations as referred to above in (a) through (c) occur, Deltares has the right to impose certain (temporary) LICENSEE-restrictions upon LICENSEE so that the infringement, at least temporarily, does no longer exist, such without any rights to compensation for LICENSEE.

4. Guarantees

4.1 Deltares does not guarantee the correctness of the results generated by the Program in any manner.

4.2 LICENSEE shall indemnify, hold harmless and defend Deltares against any action brought by a third party against Deltares to the extent that such a claim is connected to the use of the Program by Licensee, including use of the results of such use, and the installation of the Program by Licensee.

4.3 If errors in the Program or the documentation that prevent the normal use of the Program become and LICENSEE has immediately informed Deltares thereof, Deltares shall at its sole discretion:

a. either at its own expense carry out repairs until the error is solved in such a way that normal use of the Program is possible and/or replace, (part of) the Program and/or documentation containing the error with the repaired one; or
b. terminate the agreement unilaterally, without any other rights to compensation for LICENSEE.

4.4 If, according to Deltares, it becomes apparent that use of the Program may cause damage, Deltares has, at its sole discretion, the right to:

a. either, within the limits of the Program’s purpose, at its own expense carry out repairs and/or alterations until the risk of damage ceases to exist and/or replace(parts of) the Program or documentation;
b. impose on LICENSEE temporary or permanent restrictions concerning the use of the Program, so that the risk of damage no longer exists; or
c. terminate the agreement without any other rights to compensation for LICENSEE.

5. Liability

For the purpose of clause 5 two parties shall be differentiated:
a. Indemnities, being Deltares and its partner in the development of the Program: Rijkswaterstaat (Dutch agency on roads, waterways and water systems of the Ditch Ministry of Infrastructure and Environment.
b. Indemnitor: the LICENSEE.

5.1 Indemnitor 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.

5.2 Indemnitor agrees that Indemnities (including their personnel and non-employees who (have) undertake(n) activities for Deltares shall not be responsible to Indemnitor for any loss-of-profit, direct, indirect, incidental, special, or consequential damages, by Indemnitor or third parties (partially or wholly), arising out of this Agreement or the installation or the use of the Program, and the interpretation and the use of the results generated by the Program, except for damages caused by wilful act/conduct or gross negligence of Indemnities. This includes without limitation damage or expenses that are (partially or wholly) the result of or connected with:
a.	defects in the Program;
b.	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 Indemnitor.

5.2 Indemnitor indemnifies Indemnities against any party claim for compensation regarding any damage and expenses resulting from the use of the Program by Indemnitor, the interpretation of the results and/or the use of these results.

5.3 Besides Deltares, Rijkswaterstaat may directly rely up(on) the provisions of clause 5.

5.4 Indemnitor shall, each time when presenting Program’s results, refer to Indemnities, as follows: “MorphAn is developed by Deltares in cooperation with Rijkswaterstaat, morphan@deltares.nl”.

6. Invoices and payment

6.1 This license is provided to Licensee without a monetary charge.

7. Transfer of rights

7.1 LICENSEE cannot transfer its rights and obligations arising from the agreement with Deltares to a third party.

8. Termination

8.1 Without prejudice to its right to possible indemnification, Deltares may terminate this Agreement by registered letter, out of court, if Licensee fails to perform or comply with this Agreement or any provision thereof.

8.2 In the event of termination of this Agreement, Licensee is obliged within 10 days to discontinue the use of the Program, delete the Program from all computers on which Licensee has installed the Program, and either return the physical medium (CD-ROM or USB drive) on which user has received the Program to Deltares by registered post or destroy the physical medium.

9. Disputes and applicable law
	
9.1 Dutch law applies to all offers and agreements of which these Terms form part.

9.2 All disputes arising from offers, agreements or subsequent agreements will in first instance be brought before the competent court in The Hague, including the presiding judge in injunction proceedings (“Kort Geding”).

C.	Specific additional terms of delivery for software licensing for the scirpting plugin and XBeach 1D

For the avoidance of doubt and in addition to the terms specified under B, the following terms shall apply to the scripting plugin and XBeach 1D: 
1. You acknowledge that the scripting plugin and XBeach 1D are in a beta release stage (prototype) and are fit for testing and research purposes only and are not fit for any other use.
2. The Beta Software (prototype) is provided "AS IS", without warranty of any kind. You acknowledge that Deltares is under no obligation to correct any bugs, defects, or errors in the Beta Software or to otherwise support or maintain the Beta Software.
3. DELTARES MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE BETA SOFTWARE. IN NO EVENT SHALL DELTARES BE LIABLE FOR LOSS OF PROFITS, LOSS OF SAVINGS, OR DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES.
4. We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Software ("Feedback").