Deltares USA, Inc, Delft-FIAT Demonstration User Agreement

– version SFWMD - December 2021 –

 

If you require a printed version of this Delft-FIAT Demonstration User Agreement prior to accepting these terms and conditions, please use the “Print Terms and Conditions” button at bottom of this page.

 

Please read this Delft-FIAT Demonstration User Agreement.

 

This is a legal agreement between the prospective user, (hereafter: “User”) and Deltares USA Inc. (hereafter “Deltares USA”) to provide User with the Delft-FIAT application for the purpose of demonstration (hereafter “FIAT”). 

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 Delft-FIAT Demonstration User Agreement (hereafter “Delft-FIAT Demonstration User Agreement”);

2. You expressly accept on behalf of User this Delft-FIAT Demonstration User 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 Training Course Agreement, or if User does not agree with the terms of this Training Course Agreement, please do not mark the “I agree” checkbox and click the “Cancel” checkbox. . 

Deltares USA Inc. (hereafter: “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/.

 

1      Definitions

1.1 Agreement: the agreement to provide user rights to the Program and/or to provide Services consists of the Terms signed for agreement by User and returned by User to Deltares USA and any written amendments thereto agreed between Deltares USA and User including the description of the software attached to these Terms.

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

1.3 Intentionally Blank.

1.4 Services: maintenance and support services related to the Program, if any and to the extent described in an additional agreement.

1.5 Terms: these General Terms for Software Licensing and Software Services.

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

 

2 General

2.1 These Terms apply to all Agreements with Deltares USA to provide user rights to the Program and/or Services to User.

2.2 These Terms shall apply with the explicit exclusion of any type of (general) conditions of User.

2.3 Amendments to the Terms shall be binding only if and in so far as they have been confirmed in writing by Deltares USA.

2.4 In the event that any of the terms of this Agreement are declared null and void or otherwise not binding, the unaffected terms will remain unimpaired. Deltares USA shall replace the ineffective term by a provision that, as far as is legally possible, approximates most closely the original provision provided the term is mutually agreed upon by both parties.

2.5 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.  

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

 

3. Make Program available

3.1 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.

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

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

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4. Licenses and intellectual property

4.1 Unless stipulated otherwise, Deltares USA grants User a non-exclusive, non-transferable right to use the Program, for an indefinite period of time.

4.2 The right of use is limited to User’s own use of the Program. User is not authorized to grant any sub-licenses to the Program to third parties, or in any other way to facilitate the use by third parties.

4.3 Text Moved to section 7.2.

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

4.5 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.

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

4.7 User acknowledges that the Program is confidential in nature and may contain trade secrets of Deltares USA and/or Stichting Deltares Netherlands.. Deltares USA shall allow public access to all project documents and materials in accordance with the provisions of Chapter 119, Florida Statutes. Should Deltares USA assert any exemptions to the requirements of Chapter 119 and related Statutes, the burden of establishing such exemption, by way of injunctive or other relief as provided by law, shall be upon Deltares USA.

IF DELTARES USA HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT TELEPHONE NUMBER 561 682-2729, EMAIL ADDRESS: "WWW.PUBLICRECORDS@SFWMD.GOV">WWW.PUBLICRECORDS@SFWMD.GOV OR MAILING ADDRESS: 3301 GUN CLUB ROAD, WEST PALM BEACH, FL 33406.

4.8 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.

4.9 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 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;

1. reach a settlement for its own account;

2. 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

3. terminate the agreement and return to User the

consideration that User paid under the 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, does no longer exist, such without any rights to compensation for User.

5. Services - maintenance and support

This article applies to the Services for maintenance and support in the event these are arranged in a separate agreement.

 

A.  Maintenance

5.1 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.

5.2 Maintenance of the Program consists of providing 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.

5.3 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 prior written consent of Deltares USA.

5.4 Notwithstanding article 5.7, User is not obliged to follow the Deltares USA policy regarding new versions of the Program.

5.5 Deltares USA will provide a description of modifications to any new released version of the Program. Concurrently, Deltares USA cannot guarantee all changes will be identified with a new released version and the User is therefore directed to the documentation for a new released version to evaluate any changes.

 

B. Support

5.6  If a support Services have been agreed, support consists of:

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

        b     redirecting User to the Program documentation where the User will find her question answered; and

        c      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.

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

5.8  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 by Deltares USA.

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

6. Guarantees

6.1 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.

6.2 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 normal use of the Program is possible and/or replace, free of charge, (part of) the Program and/or documentation containing the error with the repaired one; or

1. terminate the agreement unilaterally and return the paid consideration to User, without any other rights to compensation for User.

6.3 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

6.4  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.

6.5 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 delivery of the revised version.

6.6 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, 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 free of charge (parts of) the Program or documentation;

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

2. terminate the agreement and return the license-fee to User without any other rights to compensation for User.

6.7 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 one (1) week of their discovery or (iv) has not paid the amounts due.

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7. Liability

7.1 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 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.

7.2 To the fullest extent allowed by law, User shall indemnify, hold harmless and defend Deltares USA and Stichting Deltares Netherlands (hereinafter “Indemnified Parties) 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 including without limitation any negligence or gross negligence of the Indemnified Parties, except for the knowing withholding by the Indemnified Parties of a known defect in the Program, and not its use, which causes the claim, liability, damage or cause of action. The indemnified claims, liabilities, damages, causes of action shall include consequential damages and both foreseen and not-foreseen damages.

7.3 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 refers exclusively to:

1. reasonable costs incurred by User to have the performance of Deltares USA comply with the terms of the agreement (this form of damage will not be compensated if the 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.

7.4 Deltares USA and Stichting Deltares Netherlands shall not be liable for loss of profit or revenue or for indirect, special or consequential damages.

7.5 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.     Invoices and payment

8.1 If payment for Services is required, User shall pay invoices within thirty (30) days after the invoice date. Unauthorized delay on payment shall allow Deltares USA to suspend performance.

8.2 Any complaint raised by User regarding (the amount

of) an invoice does not suspend the obligation to pay.

8.3 Deltares USA may require User to pay in advance.

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9. Rates

9.1 The fees and rates stated in any additional agreement 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 the additional agreement explicitly states otherwise.

9.2 For its right to use the Program, User pays Deltares USA a one-time fee if so stated in any additional agreement.

9.3 For the purpose of maintenance and support, Deltares USA determines annually the yearly price on the basis of a percentage of the then current list-price of the Program.

9.4 Deltares USA can change the prices annually. Upon request User shall receive the then current price list.

10. Transfer of rights

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

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11. Term and termination

11.1 The Agreement is effective from the moment Deltares USA has received from User the returned Terms duly signed for acceptance,

11.2 In the event maintenance and support is agreed upon, this is for a period of one (1) year. Each year, the maintenance and support Agreement is tacitly extended for a period of one (1) year, unless one of the parties terminates the Agreement by means of a registered letter to the other party at the latest one (1) month before the expiration date of the Agreement.  User may terminate this Agreement with or without cause at any time for convenience upon 30 calendar days prior written notice to the Deltares USA. In the event of termination for convenience, User shall compensate Deltares USA for all authorized and accepted deliverables and/or services completed through the date of termination. User shall be relieved of any and all future obligations hereunder, including but not limited to lost profits and consequential damages, under this Agreement. User may withhold all payments to Deltares USA for such work until such time as User determines the exact amount due to Deltares USA. In the event a dispute arises which the project managers cannot resolve between themselves, the parties shall have the option to submit to nonbinding mediation.

11.3 Aside from what is determined elsewhere in these Terms, a party has the right to terminate the Agreement for cause per registered letter:

1. if the other party defaults in its performance of

obligations arising from the Agreement and continues to do so after proper default notice, in which the other party is given a reasonable term to fulfil its obligations.

1. 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 Agreement.

11.4 In the event of termination of the Agreement in accordance with article 11.3, all invoiced but yet unpaid sums shall immediately be due and payable.

11.5 In the event of termination of the 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.

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12. Disputes and applicable law

12.1 Florida Law shall apply to the Agreement.

12.2 All disputes arising pursuant to the Proposal, Agreement or derived agreements shall be determined as follows: Deltares USA and User will negotiate in good faith to reach 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 Florida.

 

Article 13. Miscellaneous

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

13.2 This Agreement stands on its own. This Agreement is not subject to any other agreement. This Agreement is the sole instrument governing the distribution and use of the Program.

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