END USER LICENSE AGREEMENT (EULA)
IMPORTANT – THE USE OF THIS SOFTWARE IS SUBJECT TO LICENSE RESTRICTIONS. PLEASE READ THIS END USER LICENSE AGREEMENT (EULA) CAREFULLY BEFORE USING THE SOFTWARE.
This End User License Agreement (“License” or “EULA”) is an agreement between the company acquiring the license (“Customer”) and AVL Software and Functions GmbH (“Licensor”). This Agreement does not cover customer-specific developments, which are subject to separate agreements between the parties.
BY INSTALLING OR USING THE LICENSED SOFTWARE, YOU AUTOMATICALLY AGREE TO THE TERMS OF THIS AGREEMENT AND BE BOUND BY THIS LICENSE. IF YOU DO NOT FULLY AGREE TO ALL OF THE TERMS OF THIS LICENSE, THEN DO NOT INSTALL OR USE THE SOFTWARE AND PROMPTLY RETURN THE SOFTWARE TO THE LICENSOR.
1 DEFINITIONS
Licensed Software: computer program, developed and provided by the Licensor. This includes, but it is not limited to, object code.
Documentation: means explanatory materials in printed, electronic or online form accompanying the Licensed Software in English and other languages, if available.
Perpetual License: means a license to use the Licensed Software permanently under the EULA.
Subscription License: rented license, to get access to the Licensed Software for a certain period of time (usage period is 12 consecutive months). Non-perpetual set with an expiry date after which the license is automatically renewed for the next period.
Evaluation License: is a time limited license (max. 3 months) to be used only for the purpose of testing whether the Licensed Software might meet the requirements of the Customer.
Dongle: small piece of hardware that connects to a PC (via USB port) and that is used as a form of copy protection or digital rights management to authenticate a piece of installed Software.
Third Party is any party other than the Licensor or the Customer.
2 LICENSE GRANT
a. Grant
The Licensor hereby grants the Customer a worldwide, non-exclusive license to use the Software for the purpose described in the software description or software documentation. The license grant can either be permanent (Perpetual) or time limited (Subscription and Evaluation), depending on the license type and unless the Licensor´s commercial offer explicitly states otherwise.
b. Software Updates
The Customer is not entitled to free software updates. The update service is restricted to Customers who have signed the Software Maintenance Contract.
c. Maintenance
The Customer may extend its entitlement to receive regular software updates, as mentioned under Section b above, by purchasing a Software Maintenance Contract. The Customer will then automatically receive two (2) upgrades during the maintenance period. The Software Maintenance Contract is subject to special Software Maintenance Service Terms and Conditions and has to be ordered separately
d. Support
The Customer is not entitled to free technical support. The Customer may extend its entitlement to receive technical support by purchasing a Software Support Package for a specific amount of support hours (mentioned in the quotation). The Software Support Package is subject to special Software Support Service Terms and Conditions and has to be ordered separately.
3 LICENSE TYPES
a. Node Locked License NL (Dongle)
The Licensed Software is assigned to one computer, or in the AVL case, to one dongle. The Dongle permits the Customer to use the software at a time on a single PC, but is not fixed to a designated PC. The use of the Licensed Software on a specific PC is authorized by plugging a Dongle into the PC’s USB port.
b. Concurrent License CC
The Licensed Software is running on a server where users connect via the network. A Concurrent License is based on the number of simultaneous users accessing the program (for example: you have 3 concurrent licenses; after 3 users are logged on to the program, the 4. user is prohibited. When any one of the first 3 log out, the next person can log in.
c. Network Named User License NNU
The Licensed Software is running on a server where users only can connect the network via entering a personal user permission (Login-ID). A Network Named User License authorizes a specified number of dedicated Named Users to install and run the programm.
4 OWNERSHIP
AVL Software and Functions GmbH shall retain ownership of the software, materials, documentation and any intellectual property or other rights. The Customer shall have no rights, title or interests therein except as explicitly set forth in this Agreement.
The right to use the software is limited to the Type of License as provided and described in the quotation. The Customer may only use the software for its internal use. The Customer shall not use the software to render data processing center services, outsourcing services or application services to third parties and shall not let or sublicense the software to third parties without the prior written consent of the Licensor.
5 RESTRICTIONS
a. Proprietary Markings
The Customer shall not remove or destroy any proprietary markings or proprietary legends placed upon or contained within the Licensed Software. The Customer shall not take any action, or fail to take action, that could adversely affect the trademarks, service marks, patents, trade secrets, copyrights or other intellectual property rights of the Licensor.
b. Duplication / Copying
The Customer may duplicate Licensed Software Documentation, at no additional charge and for the Customer’s use only, as long as all the required proprietary markings are retained on all the duplicated copies.
Copying of the Licensed Software is prohibited unless it is necessary for using the Licensed Software as intended according to the EULA or for normal archiving practices, or is otherwise permitted under applicable law.
c. Modification, Decompilation, etc
The Customer shall not modify, adapt, translate or create derivative works based upon the Licensed Software or associated documentation. Further, the Customer shall not reverse-engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Licensed Software, unless this is expressly permitted by the applicable law. Any proprietary markings, serial numbers or other attributes of identification or copy protection shall not be altered, circumvented or modified.
d. Internet, Network or Virtual Applications
The Customer is not authorized to access (directly or indirectly) the Licensed Software or its license protection mechanism via internet or network applications (e.g., Citrix, Microsoft Remote Desktop, USB Redirector or other terminal/device servers) or to grant third parties such access.
e. Sublicenses
The Customer may not sell, distribute, transfer, pledge, rent, lend, share, export, lease or sublicense the Licensed Software unless this is approved by the Licensor in writing.
f. Compliance
The Customer shall notify Customer’s employees who may have access to the Licensed Software of the restrictions contained in this EULA and ensure their compliance with these restrictions. Customer agrees to bear full responsibility for the actions of its employees or other parties who obtain access to the Licensed Software through the Customer.
6 AUDIT RIGHTS
The Licensor shall have the right to inspect the Customer’s facilities and records to verify the Customer’s compliance with the terms and conditions of this Agreement. The audit shall be conducted upon at least 7 days prior notice, during normal business hours and in such a manner as not to interfere unreasonably with the operations or to endanger confidential information of the Customer. If such an inspection reveals that the Customer is not compliant with this agreement, the Licensor may exercise any or all rights and remedies provided under this EULA or by law, including but not limited to the right to recover the loss of profit and the cost of such an audit.
7 PENALTY
The customer commits himself to the licensor for each culpable copyright infringement for the purposes of this EULA to pay a reasonable penalty, the amount thereof is determined by the licensor in its reasonable discretion and in the event of a dispute before the competent court may be reviewed.
8 WARRANTY
a. Warranty Rights under free licenses
No warranty is given for software and services provided by the Licensor free of charge, among others, free copies, evaluation licenses, pre-release version, a beta tester version, a demonstration product or a free copy not meant for resale.
b. Warranty Rights under paid licenses
The Licensor warrants that the Licensed Software has the functions and features contained in the software documentation of the software version that is valid at the time the license is granted. Any non-substantial variation from the agreed functionalities, which does not impair the use of the Licensed Software as intended according to the agreements between the parties, shall not be considered a defect and does not establish any warranty rights. No other or further characters and/or features or a purpose beyond what is stated in the software documentation shall be deemed to have been agreed unless expressly confirmed in writing by the Licensor. The same applies to the alleged grant of any guarantee.
c. Quality Defects
Should any defects be found, the Customer shall notify the Licensor in text form (by mail, email or telefax message) and without undue delay. The assertion of warranty claims is otherwise excluded. The Licensor shall rectify quality defects at its own election by either repairing or replacing the defective software or respective parts. If a defect cannot be rectified by repairing or replacing the software, the Licensor may provide the Customer with workarounds for the respective defect. To the extent reasonable, such workarounds shall be considered a rectification of the quality defect.
d. Customer Intervention
The Customer’s warranty claim shall expire if any of the following circumstances are given:
i. The software is treated incorrectly
ii. The software is not used in accordance with this agreement or the documentation
iii. The software is used for a purpose for which it is not intended
iv. An attempt to modify or repair any of the Licensed Software or components / parts is made by a person not explicitly authorized by the Licensor to do so
v. A malfunction in the Licensed Software has been caused by any equipment or software not supplied / recommended / approved by the licensor
9 LIABILITY
To the maximum extent permitted by applicable law, even if a remedy fails its essential purpose, in no event shall the licensor be liable for any special, incidental, direct, indirect or consequential damages whatsoever (including damages for lost profits, and non-achievement of savings, business interruption, loss of information, or any other pecuniary loss) arising out of the use of or inability to use the software, even if the licensor has been advised of the possibility of such damages. In any case, the licensor’s entire liability under any provision of the agreement or this EULA shall be limited to the amount actually paid by Customer for the software.
No claims for damages may be asserted against the Licensor on any legal grounds whatsoever except in compliance with the following terms:
a. The Licensor is liable for intentional acts and in cases where liability is mandatory by law, including, but not restricted to, cases where there is culpably caused injury or damage to health or loss of life, or material damage due to the absence from the Licensed Software of features that are guaranteed by the Licensor.
b. In cases of gross negligence. In such cases, the liability for damage to property and assets shall be limited to the amount of damage that might reasonably be predicted, unless the damage is caused by members of the Licensor´s executive body or by the Licensor´s managers, or unless an essential contractual duty, which has to be fulfilled in order to reasonably fulfill the contract and which the contractual partner may reasonably expect to be fulfilled (cardinal duty), is violated.
c. In cases of slight negligence, in as much as a cardinal duty is violated. In such cases liability for damage to property and financial damage shall be limited to the damage that might reasonably be expected in such cases
d. In the event of data loss, the Licensor is liable under the conditions stated above only for and up to the cost of recovering the data, and only on the condition that proper data backup has been performed by the Customer.
10 MISCELLANEOUS
a. Validity
This agreement, including all documents incorporated by reference, represents the entire agreement between the parties. If the Customer issues an order and the terms and conditions of the order conflict with the terms and conditions of this Agreement, then the terms and conditions specified in this Agreement shall control.
b. Written Form Requirement
Any amendments or additions to this agreement must be made in writing and must be expressly marked as such. This also applies to this written form requirement.
c. Severability
In the event that any of the above terms is or becomes invalid, the remaining terms shall continue in full force and effect.
d. Headings
Any headings in this Agreement are included for convenient reference only and shall not affect the interpretation of this agreement.
e. Waiver
Any failure to enforce, or any waiver of, any right under this agreement by the Licensor shall not be construed as a waiver of future rights.
f. Choice of Law
Except in cases where the provisions of this agreement differ from the legal regulations, the latter shall apply additionally. This Agreement shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
g. Place of Jurisdiction
Regensburg, Germany, is agreed as the exclusive place of jurisdiction for all disputes arising from or in connection with this agreement