Table of Content
Preamble
1. Definitions
2. Subject
3. Right of use
4. Purchase Price and Payment
5. Protection of Software
6. Transfer
7. Delivery
8. Maintenance
9. Claims in Case of Defects [Mängelhaftung] for Purchased Software except Free-Trial-Versions
10. Claims in Case of Defects [Mängelhaftung] for Free Software and Free-Trial-Versions
11. Limitation in Liability
12. Miscellaneous
Preamble
Whereas CyanCor GmbH, Spinnereiinsel 3c, 83059 Kolbermoor, Germany (“Licensor”) is distributing a software referred to “Novo-Gloss Multi Gauge” which is capable of storing and charting certain measured data (“Software”).
Whereas the Licensee wishes to use the Software.
Now therefore the Licensor and Licensee (each hereinafter “Party”, collectively “Parties”) enter into this End-User License Agreement (EULA).
1. Definitions
In this End-User License Agreement (EULA), these terms shall have the following meaning:
1.1. Activation Key. The data (e.g. combination of numbers or “license file”) provided by Licensor or a third party to Licensee in order to activate the use of the Software as described in Section 2.2.
1.2. Agreement shall mean this End-User License Agreement (EULA).
1.3. BGB is the abbreviation for the German Civil Code [Bürgerliches Gesetzbuch].
1.4. Defect [Mangel] shall mean a Quality Defect or Legal Defect.
1.5. Documentation shall mean the documentation of the Software available at Licensor’s Website.
1.6. Free-Trial-Versions shall mean the Software provided free of charge but for a limited period of time (e.g. 30 days).
1.7. Infringement Claim shall mean a claim by a third party against the Licensee asserting that the Licensee’s use of the Soft¬ware in accordance with this Agreement violates the third party’s intellectual property right.
1.8. Legal Defect [Rechtsmangel] shall have the meaning attributed to the term under section 435 BGB. Example. The use of the Software violates intellectual property rights of a third party, e.g. copyrights, trademarks or patent rights.
1.9. Licensor’s Website shall mean the website of Licensor accessible under novo-gloss-multi-gauge.com.
1.10. Quality Defect [Sachmangel] shall have the meaning attributed to the term under the section 434 BGB. Example. The Software does not work or not work correctly, delivers inaccurate or no results.
1.11. Software shall mean Licensor’s software referred to as “Novo-Gloss Multi Gauge” in object code (binary form), with the Edition and version as activated with the Activation Key.
1.12. User Account shall mean the online account to be created by Licensee in order to use the Software as described in Section 2.2.
2. Subject
2.1. Subject. This Agreement sets forth the rights and obligations of Licensor and Licensee in connection with the use of the Software.
2.2. Registration and Activation Requirement. The Software can be downloaded at Licensor’s Website or is distributed by third parties, e.g. in connection with certain measurement devices. The Software is available in three different Editions with different scope of functionality: Lite, Advanced and Professional. In order to be able to use the Software, Licensee must register online with a User Account. Registration takes place through the Software and requires an internet connection and provision of inter alia the following data: company, name, address and email. In addition, Licensee must obtain an Activation Key, except in cases of Free-Trial-Versions. After entering the Activation Key into the Software, the Software can be used by Licensee. Activation Keys may be provided free of charge (“Free Software”) or against one-time payment (“Purchased Software”). The Activation Key is valid for a specific Edition and for a one-time activation of a specific version of such Edition on one device and within 366 days after provision of the Activation Key. Free-Trial-Versions do not require Activations Keys but registration only.
2.3. Conclusion and Availability of Agreement. This Agreement is concluded when Licensee is accepting this Agreement by clicking the respective check-box (e.g. “I accept the terms of the End User License Agreement (EULA)” ) in the download, registration or activation process. This Agreement is available in English language only and can be accessed, downloaded and locally saved from within the Software and/or Licensor’s Website
2.4. Relevant Agreement. The rights and obligations of the Parties under this Agreement shall be determined by this Agreement only; general terms and conditions of the Licensee shall not apply.
2.5. Role of Licensee. Licensor is offering the Software solely to businesses within the meaning of section 14 BGB [Unternehmer], i.e. to natural or legal persons or partnerships with legal personality who or which, when entering into this Agreement, act in exercise of their trade, business or profession.
2.6. Functionality and Quality. The Software shall have the functionality and quality specified and described in the Documentation. The Licensee was able to access the Documentation on the Licensor’s Website at https://novo-gloss-multi-gauge.com/ prior to the conclusion of this Agreement and has informed itself about the functionality of the Software and its fitness for the intended use. The Licensor shall not be liable to the Licensee for any other functionality or quality of the Software, in particular the Software’s suitability for any particular use intended by the Licensee or its suitability for its ordinary use, its compliance with descriptions and statements of the Licensor or its employees made in public or in advertisements, unless the Licensor has approved such description and statements explicitly in writing. The specifications and descriptions of the Software in the Documentation shall not be deemed or construed a guarantee of quality [Beschaffenheitsgarantie] given by the Licensor.
3. Right of use
3.1. Perpetual Right of Use. The Licensor hereby grants the Licensee a non-exclusive, perpetual right of use in the object-code of the Software (Edition and version as activated with the Activation Key) on the condition precedent of full payment of the purchase price set forth in Section 4.1 below, if any. In case of Free-Trial-Versions the right is limited in time to the free trial period (e.g. 30 days).
3.2. Scope of Usage. The Software may be installed by Licensee only on one device (PC with specific hardware and operating system) at the same time. Such installation may then be used within the scope set forth below by an unlimited amount of users. The Licensee may only use the Software for its own internal use and the use of any companies affiliated with Licensee within the meaning of section 15ff German Stock Act (“Affiliates”). The Licensee shall not use the Software to render data processing center services, outsourcing services or application services (ASP, Software as a Service, Cloud Computing) to Affiliates or other third parties or provide the Software in any other form via a network to third parties and shall not let the Software to third parties without the prior written consent of the Licensor.
3.3. Right to Reproduce [Vervielfältigung]. The Licensee shall be entitled to reproduce the Software to the extent required for its use in the scope set forth above. Such reproduction shall in particular include the installation of the Software on the hardware of Licensee (PC) and loading of the Software into the RAM of the hardware. The Licensee shall be entitled to make a reasonable number of backup copies of the Software as may be required to secure future usability of the Software. This shall in particular apply to backup copies of the Software generated by automatic backup systems for the purpose of disaster recovery. Backup copies made on tangible storage media shall be marked as such and shall include all copyright notices present on the original storage media.
3.4. Modification and Decompilation. The Licensee may not translate, adapt, rearrange or otherwise modify the Software. The Licensee is, however, entitled to decompile or otherwise reverse engineer the Software, but only to the extent permitted under Section 69 e German Copyright Act [Urhebergesetz] and only if the Licensor has not provided the Licensee within reasonable time upon Licensee’s written request with data and/or information required to ensure the interoperability of the Software with other software.
3.5. Right Of use In Bug Fixes and Updates. If the Licensor provides the Licensee with bug fixes (e.g. patches, rectification of defects) or with new versions of the Software (e.g. updates, upgrades) which replace prior versions of the Software, then the bug fixes or newer version of the Software shall be subject to the terms of this Agreement unless otherwise agreed by the parties. For the avoidance of doubt, bug fixes and updates are owed by Licensor only under statutory damage claims, if any, or if expressly agreed by the parties within a maintenance agreement, see Section 8 .
3.6. Documentation. The Licensor may provide documentation of the Software at Licensor’s choice in the form of an (integrated) online help, wiki and/or downloadable PDF file.
3.7. Reservation of Rights. Unless explicitly set forth otherwise in this Agreement, all rights in the Software in particular the copyright and the right to and on inventions and other intellectual property rights remain as between the Parties exclusively with the Licensor.
3.8. No Rights in Source Code. Licensee is not granted any rights in the source code of the Software.
4. Purchase Price and Payment
4.1. Purchase Price. Unless the Software is provided “for free” or within a Free-Trial-Version, i.e. free of charge, the Licensee shall pay a purchase price for the Software in the amount as agreed between Licensee and Licensor, or a third party from whom Licensee obtains the Activation Key, plus VAT, if applicable.
4.2. Due Date. Unless otherwise agreed the purchase price shall be due and payable upon conclusion provision of the Activation Key.
5. Protection of Software
5.1. Safekeeping of Software. The Licensee shall keep the Software in safe custody to prevent its misuse and shall – except as otherwise provided for in Section 6 – make it available to third parties only subject to the Licensor’s prior written consent. For the purpose of this Section 5.1 administrators and employees of the Licensee and its Affiliates shall not be construed third parties.
5.2. Passing on of Hardware. If the Licensee (i) passes on the Hardware or any Tangible Storage Media on which the Software was stored (in whole or in part, unchanged or amended) to a third party on terms other than those set forth in Section 6 or (ii) otherwise gives up possession of such Hardware or Tangible Storage Media it shall ensure that the Software Product is fully and permanently erased.
6. Transfer
The Licensee may transfer the right of use in the Software, to a third party, if (i) Licensee has removed the Activation Key from its device and finally deleted it including all copies (ii) Licensee fully and permanently ceases to use the Software, (ii) Licensee has uninstalled the Software on its device an deleted all copies made by Licensee. Licensor will then issue a new Activation Key for the given Edition and version which Licensee can pass on to the third party. The third party may then proceed as set out in section 2.2.
7. Delivery
7.1. Form of Delivery. The Software is made available by download and the Activation Key is provided as describe in Section 2.2.
7.2. Passing of Risk. Delivery and passing of risk shall have occurred upon granting access to the Activation Key, or in case of Free-Trial-Versions and Free Software upon download of the Software.
7.3. Obligate to Examine. The Licensee shall promptly examine the Software and notify the Licensor of any Defects. Section 377 of the German Commercial Code [Handelsgesetzbuch] applies.
8. Maintenance
Except as otherwise expressly agreed, Licensor is not obliged to provide updates, upgrades, bug fixes or any other support (e.g. hotlines, online forums, e-mail support) for the Software (“Maintenance”). Licensee’s statutory claims in case of defects remain, however, unaffected. Any provision of Maintenance by Licensor without being obliged to do so is provided as a free service and “as is”.
9. Claims in Case of Defects [Mängelhaftung] for Purchased Software except Free-Trial-Versions
9.1. Provision Free from Defects. The Licensor shall provide the Software free of Quality Defects at the time the risk passes and in a form so that it does not infringe any rights of third parties. Licensee is aware of and has reviewed at Licensor’s Website the list of known bugs and the list of third party software components used by the Software.
9.2. Rectification of Quality Defects. The Licensor shall rectify Quality Defects at its own discretion by either repairing or replacing the defective Software or respective parts thereof.
a) New Versions of Software. The Licensor may replace defective Software with newer versions of the same, provided that (i) the replacement is at least equal in performance and functionality to the Software to be replaced and (ii) the replacement does not require undue adjustments on the Licensee’s side, (e.g. the use of a different operating system).
b) Workarounds. If a Quality Defect cannot be rectified by repairing or replacing the Software, the Licensor may provide the Licensee with workarounds for the respective Defect. To the extent reasonable, such workarounds shall be considered a (preliminary) rectification of the Quality Defect.
9.3. Statutory Rights. The Licensee’s rights pursuant to mandatory statutory law to lower payment, withdraw from the Agreement and to claim damages or futile expenses in case of a Quality Defects remain unaffected.
9.4. Notification and Indemnification. The Licensee shall notify the Licensor without undue delay of any Infringement Claim giving reasonable details. The Licensor shall promptly assume full control over any court- or out-of-court defence activities of the Licensee against such Infringement Claim and shall indemnify the Licensee of all reasonable expenses and costs, including reasonable attorney’s fees and damages finally awarded against the Licensee.
9.5. Rectification of Legal Defects. If (a) a final and binding court decision confirms the infringement of third party’s intellectual property rights through the use of the Software Product by the Licensee, or (b) a preliminary injunction is properly served upon the Licensee, or (c) the Licensor concedes that the Software infringes third party’s intellectual property right, the Licensor shall promptly
a) procure an irrevocable release for the Licensee, free of cost to the Licensee, from such alleged Infringement Claim(s) for past use; and
b) for continued use of the Software Product, subject to the Infringement Claim(s), do one of the following:
(1) procure for the Licensee a license for future use the Software free of charge for the Licensee, and if unable to procure such right,
(2) modify or replace the Software so as to make it non-infringing to the satisfaction of such third party while retaining their form, fit and functionality.
Section 9.3 shall apply mutatis mutandis.
9.6. Failure to Assume Control. If the Licensor fails to assume full control over the defence of the Licensee as set forth under Section 9.4 above within thirty (30) days upon notification by the Licensee, the Licensee may conduct the defence and the Licensor shall reimburse the Licensee for the costs incurred by it including reasonable attorney’s fees and damages finally awarded against the Licensee.
9.7. Assistance by the Licensee. The Licensee shall provide, upon the Licensor’s written request, reasonable assistance to the Licensor to support the Licensor in the settlement of and/or defence against the Infringement Claim. The Licensor agrees to provide such reasonable assistance to the Licensee where the Licensee undertakes to conduct the defence pursuant to Section 9.6.
9.8. No Liability under this Section 8. The Licensor shall not be liable to the Licensee under Sections 9.1 to 9.7 above if and to the extent the Infringement Claims or Quality Defects are based solely on an alteration or modification or use of the Software by the Licensee which is not in compliance with this Agreement.
9.9. Compensation of Debug Activities. The Licensee shall reimburse the Licensor for reasonable costs resulting from activities to rectify (alleged) defects in the Software if – to the Licensee’s knowledge or gross negligent lack of knowledge – the Software is free of such alleged defect or the Licensor is not obliged to rectify such defect pursuant to Section 9.1 to 9.8 above.
9.10. Limitation of Action. Subject to sentence 2 of this Section 9.10, the warranty claims of the Licensee shall become statute-barred within one (1) year upon delivery of the Software in accordance with Section 7.2 of this Agreement. Claims for damages for which Licensor is fully liable (see Section 11.1, last paragraph, “unless…”) shall be statute-barred as set forth by mandatory statutory law.
9.11. Guarantees. Guarantees are given by Licensor only if expressly titled as “Guarantee” and only in writing (not in emails or on web-pages).
10. Claims in Case of Defects [Mängelhaftung] for Free Software and Free-Trial-Versions
10.1. Rectification. Licensor shall not be obliged to rectify defects of the Free Software and Free-Trial-Versions or provide any patches, bug fixes, work around solutions, updates or upgrades, except if and to the extent Licensor has fraudulently concealed the Defect. Licensee is aware of and has reviewed at Licensor’s Website the list of known bugs and the list of third party software components used by the Software.
10.2. Damages in Case of Defects. Licensee shall have no damage claims due to Defects of the Free Software and Free-Trial-Versions, except Licensor has fraudulently concealed the Defect (see sections 523 and 524 BGB).
10.3. Other Damages. For other damage claims with respect to Free Software and Free-Trial-Versions, Licensor’s liability is limited to damages caused by intent and gross negligence of Licensor (see section 521 BGB).
11. Limitation in Liability
11.1. Limitation in certain cases. Licensor is liable for damages if they
a) have been caused due to Licensor’s intent or gross negligence; or
b) (except Free Software and Free-Trial-Versions) have been caused by Licensor’s slight negligence and a material breach of obligations, which endangers the achievement of the objective of this Agreement or have been caused due to failure to comply with obligations, the very fulfillment of which is an essential prerequisite for the proper performance of this Agreement and on the observance of which Licensee may rely.
Any further liability of Licensor is excluded, irrespective of its legal basis, unless Licensor is liable for damages to the life, body or health of a person, due to the explicit assumption of guarantee, fraudulently concealed of a defect or due to claims under the German Product Liability Act.
For Free Software and Free-Trial-Versions, Licensor’s liability is limited to damages caused by intent and gross negligence of Licensor (see section 521 BGB).
11.2. Limitation of the amount of liability. In case of clause 11.1.b) Licensor’s liability is limited to the amount of a typical foreseeable damage for such type of agreement.
11.3. Further limitation of the amount of liability. For the cases specified under clause 11.2, the parties assume that the maximum “typical foreseeable damage” for all damages in one calendar year corresponds € 500.
11.4. Licensor employees and agents. The limitations of liability in this Agreement apply also to claims against Licensor’s employees and persons authorized by Licensor.
12. Miscellaneous
12.1. Applicable Law. This Agreement shall be exclusively governed by and construed in accordance with the laws of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Goods (CISG).
12.2. Place of jurisdiction. If the Licensee is a merchant, legal entity of public law [Anstalt des öffentlichen Rechts] or special fund under public law [öffentlich-rechtliches Sondervermögen], the exclusive place of jurisdiction is Licensor’s place of establishment. Licensor remains, however, entitled to sue at the registered office of the Licensee.
12.3. Severability. In case individual provisions of this Agreement are or become ineffective, this shall not affect the effectiveness of the remaining provisions. Instead of such ineffective provision a provision which would fairly have been agreed between the Parties for the originally desired economic purpose of this contract shall apply. The same applies for any contractual gaps.
Version: 6 June 2015