Licence Agreement for Software Licensing
Licence agreement on providing software for use
The licence agreement on providing software for use is directed towards all users of the software, i.e. both consumers and entrepreneurs. “Consumer”, within the meaning of these licensing conditions, shall mean any natural person who acquires software for purposes which cannot be attributed to his or her professional activity as either a trader or a self-employed entrepreneur. “Entrepreneur”, within the meaning of these licensing conditions, shall mean any natural or legal person or business partnership vested with its own legal capacity which acts in pursuance of its professional activities as a trader or self-employed person when purchasing the software.
The licence agreement shall likewise apply if the software is used in countries other than the Federal Republic of Germany or is downloaded in other countries.
The following licence agreement on the “OPMONis” software purchased by you within the scope of ordering in the Licensor’s online shop is being concluded between independis information systems GmbH, Am Rathaus 7, D-97270 Kist (hereinafter referred to as “Licensor”) and you as a user (hereinafter referred to as “Licensee”). By purchasing the software, you acknowledge the provisions of the licence agreement to be binding.
Art. 1 Subject of the agreement
(1) The subject of the agreement is the “OPMONis” software purchased by you via the Licensor’s online shop as well as the associated user documentation in electronic form, hereinafter jointly referred to as “the software”.
(2) The software is being licensed to you for permanent use, as long as the software version licensed does not concern the beta version in accordance with Art. 2 of these licensing conditions.
Art. 2 Beta version
(1) At the present time, only a beta version of the software is available. The beta phase will last until 31/05/2016.
The beta version of the software can be used free of charge. However, it is only possible and permissible to use it within the scope of and taking into consideration these licensing conditions. Once the beta phase has expired, the beta version will automatically be blocked by the system from being used further and will no longer be available for use. Articles 7 and 9 of these licensing conditions shall explicitly not apply during the beta phase, and not to the beta version.
(2) Please note that, if you use the software in the beta phase, it is on your own responsibility. The software is still in the development phase, so that, although all the functions exist, the software may, however, still have serious errors, which may only appear when the software is used within the scope of the beta phase. For this reason, the software is explicitly not suited to productive use during the beta phase. The rights of use assigned with this agreement are therefore limited to use purely for testing purposes and solely in a test environment which cannot have any effect on real environments or a real application.
(3) The Licensee warrants, when using the beta version, that they will only use it for testing purposes and not in a real environment or in a productive phase. Any deviating use or use extending beyond that is not covered by the Licensor’s licensing conditions within the scope of the beta phase.
(4) No purchase agreement is concluded between the Licensee and the Licensor in regard to the use of the beta version. Rather, by downloading the beta version, the Licensee is only entitled to use it, within the scope of these licensing conditions, with the limitations of this condition. For this reason, the Licensor does not provide any warranty for the use of the software being free of errors during the beta phase.
(5) The Licensee shall not be entitled to assert any claims whatsoever due to errors in the software and any damage incurred thereby during the beta phase unless the Licensor is acting with wilful intent or gross negligence in regard to the latter. Liability due to injury to life, the health or the body by the software during the beta phase shall not be affected thereby, nor shall liability under the Product Liability Act.
Art. 3 Release
(1) As from the release date, the following provisions of this licence agreement shall apply to an unlimited extent, with the proviso that Art. 2 of these licensing conditions shall cease to have effect. Within the scope of the beta phase, any beta versions of the software used shall cease to function, as programmed into the system, as at 31/03/2015.
(2) Following the publication of the software and termination of the beta phase in accordance with Art. 2 of these licensing conditions, it will be possible for you, as Licensee, to make use of a demo version, free of charge, for a period of 30 days as from the day of installation. Should you make use of the demo version of the software, you may not use it beyond the test period laid down unless you have purchased the standard version of the software from the Licensor prior to expiry of the test period. As programmed into the system, the demo version will be blocked from further use once 30 days have expired since the day on which it was first installed. Any rights of use assigned to you with the demo version shall lapse upon the test period expiring.
Art. 4 Rights of use
(1) The right of use granted to the Licensee by the Licensor in accordance with this agreement is intended for the Licensee’s own internal purposes in compliance with the terms and conditions contained in this agreement. The number of individual end users entitled to use the software and/or the software installations may not exceed the number of the end users and/or installations specified in connection with the Licensee’s order.
(2) You may utilise the software on any hardware which is available to you. Should you change the hardware, however, you need to delete the software from the bulk storage device of the hardware previously used. It shall not be permissible to simultaneously save, keep available or use the software on more than just one piece of hardware.
(3) The use of the licensed software within a network or any other computer system with several work stations based on a non-exclusive licence is illegal, in so far as the option of using multiple copies of the program simultaneously is thereby created. Should you wish to utilise the software within a network, you need to prevent simultaneous use on more than one computer by means of access protection mechanisms, or pay a special network fee, the amount of which is determined by the number of users connected to the computer system. You will be notified by the Licensee of the network fee to be paid in the individual case without delay once you have informed the latter of the planned network use, including the number of connected users. Use in such a network shall only be admissible once the network fee has been paid in full.
(4) In addition, the software may only be duplicated if the respective duplication is necessary to use the program. Necessary duplication in particular includes the installation of the program on the bulk storage device of the hardware utilised as well as the loading of the program into the random access memory.
(5) You may otherwise only duplicate the software for back-up purposes. However, in principle only one single back-up may be made and saved in each case. This back-up is to be marked as such.
(6) Further duplications are not permitted.
(7) Disseminating the software or making the software or parts of it accessible to the public is likewise prohibited, as well as renting it out or leasing it. In the event of an infringement of the rights of use, not only your right to use the software will lapse, but the Licensor also reserves the right to take steps against the infringement of rights under both civil and criminal law.
Art. 5 Selling and renting on the software
(1) You may only sell or give away the software, including any accompanying material, to third parties on a permanent basis if the third party acquiring it declares that they are in agreement with the present contractual conditions continuing to apply, to you as well.
(2) You need to save these contractual conditions carefully. Prior to passing on the software, you need to present this to the new user, for their information. Should you no longer be in possession of these contractual conditions as at the date of passing on the software, you will be obliged to first of all request a substitute copy from the Licensor.
(3) In the event of passing it on, you need to hand over all the copies of the program to the new user, including any back-ups existing, or destroy any copies not handed over. In the event of passing on the software, your right to use the program shall lapse.
(4) You may provide a third party with the software, including any accompanying material, temporarily, as long as this is not done by way of rental for commercial purposes or leasing and the third party declares that they are in agreement with these contractual conditions continuing to apply, to you as well. In such a case, you need to hand over all copies of the program, including any existing back-ups, or destroy any copies not handed over. As the user handing over the software, you will not be entitled to use the program yourself for the period of time for which the software has been provided to the third party. Any rental for commercial purposes or leasing are illegal.
(5) You may not pass on the software to third parties if there is any reason to suspect that the third party will infringe these license conditions and, in particular, produce illegal copies.
Art. 6 Decompilation and program modifications
(1) The re-translation of the licensed program code into other code forms (decompilation) as well as other forms of re-indexing of the various manufacturing levels of the software (reverse engineering), including a program alteration, are only legitimate in so far as is statutorily stipulated, in particular for the purposes of debugging, as long as the prerequisites of the following paragraphs are fulfilled.
(2) The corresponding actions within the meaning of the foregoing paragraph may only be permitted to third parties working commercially if the Licensor does not wish to undertake the necessary program alteration in exchange for a reasonable fee. The Licensor shall, for this purpose, be granted a sufficient period of time to check whether to accept the order.
(3) Should the actions specified be undertaken, they shall only be permissible if they are indispensable for the Licensee or a party acting in its name in order to create or maintain an independently created inter-operable program or ensure the functioning of the latter and the necessary information has also not been published and is not accessible otherwise anywhere else, such as by enquiring with the Licensor. In this respect, the actions are to be limited to the parts of the program that are necessary to produce the interoperability.
(4) Copyright endorsements, serial numbers and other features serving to identify the program may not, in any circumstances, be removed or altered. The same applies to any suppression of the screen display of corresponding features.
Art. 7 Warranty/claims for defects
(1) The Licensor guarantees, following expiry of the beta phase as detailed in Art. 2 of these provisions, that the software is executable on standard branded computers and servers which fulfil the system requirements specified in the Licensor’s web shop. The Licensor cannot provide any warranty that the software is compatible with any other programs besides the ones specified in the system requirements. The latter shall, in particular, apply to newer versions of programs.
(2) Should the Licensee be a consumer, the following shall apply: Defects in the software supplied (defects in quality and defects in title), including the documentation, will be remedied by the Licensor within the deadline concerning liability for defects of two years commencing upon the downloading procedure being concluded following a corresponding notification by the Licensee. The defect shall, at the Licensee’s option, either be remedied by eliminating the defect free of charge (subsequent improvement) or by supplying software that is free of any defects (a substitute delivery). The Licensor shall, however, be entitled to decline to remedy the defect by means of subsequent fulfilment if it is only possible by incurring disproportionate costs and the other type of subsequent fulfilment does not hold any considerable drawbacks for the Licensee.
(3) Should the Licensee be a trader, the following shall apply:
The Licensee shall be obliged to examine the software for any obvious defects which would easily be noticed by the average customer. Any obvious defects are to be notified to the Licensor in writing within two weeks of downloading the software. The defects, in particular the symptoms which have occurred, are to be described in detail, to the best of the Licensee’s ability. In order to keep the deadline, despatching the notice of defects in good time shall suffice.
Any defects which are not obvious need to be notified by the Licensee within two weeks of establishing them. Should the obligation to investigate such defects and notify them be infringed, the software shall be deemed to have been approved in regard to the defect concerned.
The warranty period shall amount to one year, commencing upon the download procedure being concluded. The manner in which the defect is remedied shall be exclusively at the Licensor’s option.
(4) The following applies to both consumers and traders: Any claims due to losses arising from injury to life, the body or the health which are based on intentional or negligent breach of duty on the part of the Licensor or its legal representatives or vicarious agents as well as any claims due to any other losses based on intentional or grossly negligent breach of duty on the part of the Licensor or its legal representatives or vicarious agents shall not be affected by the limitation of the warranty period.
(5) Should it not be possible for the defect to be remedied within a reasonable period of time, or should the subsequent improvement or substitute delivery have to be deemed to have failed for any other reasons, you may, at your option, lower (reduce) the purchase price, withdraw from the contract or demand compensation for damage or compensation for any futile expenditure. The two last-mentioned claims shall be governed by Art. 8 of this agreement.
(6) An assumption that the subsequent improvement or substitute delivery has failed may only be made once the Licensor has been given sufficient opportunity to subsequently improve the software or provide a substitute delivery without the desired success having been achieved, if subsequent improvement or the provision of a substitute delivery is impossible, if it is refused by the Licensor or unreasonably delayed, if justified doubt exists in regard to the prospects of success or if any unreasonableness exists for any other reason.
(7) Should you have modified parts of the software or use additional programs not supplied by the Licensor, the warranty claim shall lapse if the defect that has occurred is attributable to such circumstances.
Art. 8 Liability
(1) Without taking into consideration the legal nature of the claim asserted, the claims for compensation for damage or compensation for futile expenditure shall be in line with this clause.
(2) The Licensor shall have unlimited liability for any losses arising from injury to life, the body or the health based on a negligent breach of duty on the part of the Licensor or a wilful or negligent breach of duty on the part of a legal representative or vicarious agent of the Licensor.
(3) The liability under the Product Liability Act shall not be affected thereby.
(4) In the case of the remaining liability claims, the Licensor shall only be liable to an unlimited extent if the guaranteed quality does not exist as well as for intent and gross negligence, also on the part of its legal representatives and vicarious agents.
(5) The Licensor shall only be liable for slight negligence if an obligation is infringed, adherence to which is of particular significance for achieving the purpose of the contract (“cardinal obligation”). Should the cardinal obligation be infringed, the amount of liability shall be limited to three times the respective purchase price as well as to any losses which can typically be expected to occur within the scope of licensing software.
(6) The customer shall be personally responsible for backing up data. The Licensor’s liability for loss of data shall be limited to the typical effort which would have been necessary to restore it if regular back-ups had been made in line with the risk, unless any mandatory liability exists in accordance with paragraph (4) of this clause.
(7) Contractors, employees, representatives and vicarious agents of the Licensor shall likewise only be personally liable in accordance with the provisions of this liability clause.
Art. 9 Reservation of ownership
(1) In the case of agreements with consumers, the Licensor hereby reserves ownership of the software provided until such time as the purchase price has been paid in full. In the case of agreements with traders, the Licensor reserves ownership of the software provided until such time as any claims arising from ongoing business relations have been settled in full.
(2) Should the Licensee be a trader, they shall be entitled to sell the software on in the ordinary course of business. They already now assign any claims due to it by a third party as a result of the resale to the Licensor, in the amount of the invoice. The Licensor hereby accepts the assignment. Following the assignment, the Licensor shall be entitled to collect the claim. The Licensor reserves the right to collect the claim itself once the Licensee does not duly comply with its payment obligations and falls into arrears with payment.
(3) Should the Licensee culpably be in arrears with payment, the Licensor’s asserting the right to reserve ownership shall not be deemed withdrawal from the contract unless the Licensor explicitly informs the Licensee that that is the case.
Should the Licensor assert the reservation of ownership, the user’s right to continue to use the software shall lapse. Any copies of the program made by the Licensee need to be handed back to the Licensor or deleted.
Art. 10 Obligations to provide information
Should the software be sold on, the Licensee shall be obliged to notify the Licensor in writing of the purchaser’s full name and address.
Art. 11 Maintenance services
Maintenance services for the software which do not constitute any remedying of a defect do not form part of this agreement.
Art. 12 Final provisions
(1) Exclusively the law of the Federal Republic of Germany shall apply, subject to exclusion of the UN Convention on contracts for the international sale on goods (CISG), unless the protection granted is revoked by mandatory provisions of the law of the country in which the customer who is the consumer has their usual place of residence.
(2) In the case of agreements with merchants within the meaning of the German Commercial Code (HGB), i.e. customers who engage in trading activities or are classified as traders in terms of the German Commercial Code for any other reason, as well as with legal persons governed by public law, Würzburg shall be the exclusive place of jurisdiction for any disputes directly or indirectly arising from the contractual relationship.
(3) Should any individual provisions of these use regulations transpire to be invalid, the validity of the use regulations as a whole shall not be affected thereby.