End User License Agreement, EULA by factory42 GmbH
(Version date: May 01, 2013)
This licensee agreement is an agreement between the licensor of the software application (herein referred to as „application“) and/or the online service (herein referred to as „Service“).
factory42 GmbH
General Manager: Michael Frohn
(herein referred to as the „licensor“)
and
the client for using the licenses at his own company (herein referred to as the „licensee“)
General notes
If you enter this agreement on behalf of a company or another legal entity, make sure that you are authorized to bind this company or this person to this contract.
Your singing up to this service or software shall be deemed a recognition of the provisions of this agreement, including the terms and conditions that apply to any material available at the licensor’s website, which renders them a subject of this agreement, including, but not restricted to, the licensor’s data protection policies and terms of use.
The licensor grants the licensee the non-exclusive right to use the software in compliance with the following licensing terms only. Rental of the software shall not entail any legal concessions other than stated in the following terms. All software and documentation rights shall remain property of the licensor. The licensor also reserves all distribution, exhibition, presentation and publication rights for the software or other documents.
Due to the circumstance the service is a web-based online application, the licensor has to occasionally send important notes to the users of the service the products’ operation or modifications / extensions. By using the application, the licensee grants his consent to receive this information via e-mail (opt-in).
If you subscribe to the service, you grant your consent to the licensor that he may publish the fact that you are a subscriber.
Copyright
The customer recognizes that the software and the documents provided are subject to copyright. Furthermore, the customer recognizes the software as the licensor’s business secret.
The applicable copyright is the German Software Copyright legislation. Should it not be applicable in isolated cases, the copyright at the software’s place of deployment shall apply.
Neither the licensee nor the user nor any third party are authorized to remove or modify the software’s identification features, such as copyright notes, manufacturer notes, logos serial numbers etc.
Decompilation of the program’s source code to other code forms or any other ways of investigating into the software’s various manufacturing levels (reverse engineering) shall only be permitted in compliance with the copyright regulations.
Copying parts of the program is also only permitted in compliance with the copyright regulations.
Terms of use
By renting the software license, the licensee is granted a single, not transferable license to use the software for his own business purposes.
The license of use has to be acquired per user of the software. The license may be transferred to another user within the licensee’s business. Simultaneous use of one license by several users is not permitted.
The licensee is not permitted to rent out, lease out or leave the license of use to third parties in any other way.
You must not: (i) send spam e-mails or other bulk mails or unsolicited mails under violation of applicable law; (ii) send or save contents that violate copyright, that are obscene, threatening, insulting or illegal, including contents that are morally harmful to adolescents or that violate any third party’s personal rights; (iii)send or save contents that contain software viruses, worms, Trojans or other malicious computer code, files, scripts, spyware or programs; (iv) interfere with or disrupt the integrity or performance of the service and its files; or (v) try to obtain unauthorized access to the service or its affiliated systems or networks.
You are responsible for all activities in the scope of your user account, and you are oblige to comply with all applicable local, regional, national and foreign law, agreements and regulations regarding your use of the service, including data protection, international communication and transmission of technical or personal data. You oblige to (i) immediately report any unauthorized use of your password or account and any actual or assumed violation of data security that you gain knowledge of to the licensor; (ii) you immediately report to the licensor and to take appropriate measures to immediately stop the copying or the distribution of contents when you or your users gain knowledge of or assume such activities; and (iii) not to assume the identity of another user of the licensor’s service in order to obtain access to the service or to use the service.
The licensor is not the proprietor of the data, information or material (of the „customer data“) that you send to the service in order to use the application. You, not the licensor, are the sole responsible party for the precision, quality, integrity, lawfulness, reliability, suitability and the intellectual rights of property and use related to all customer data, the licensor is not responsible for and cannot be held liable for deletion, destruction, loss or failure to save customer data.
Performance
The licensor obliges to deliver the following performance:
• Adaptation of the software to general modified legal requirements as far as they concern existing modules and functions of the software.
• Modification and development of program functions, procedures and displays ate the licensor’s discretion.
• Prevention from losses by archiving the program’s code and the related documentation if required.
Availability
The licensor obliges to take measures that guarantee the software’s highest possible availability. A defined availability cannot be guaranteed.
The licensor’s applications or service might be subject to limitations, delays or other problems that lie in the nature of the Internet and electronic communication media. The licensor shall not be liable for delays, interruption of performance or other damage that are consequence of such problems of third-party vendors deployed or of the Internet.
Delay of performance, default
In case of strikes, lock-outs, force majeure or similar circumstances that the licensor is not responsible for and that significantly impair delivery of performance or that render it temporarily impossible, performance periods and deadlines of this agreement shall automatically extend by an appropriate amount of time.
Warranty and support
The licensor obliges to perform fault diagnosis and fault fixing beyond the warranty period.
If not covered by warranty, faults shall only bee deemed such in case of significant deviations from the function description in the respective latest software version. At the licensor’s discretion, faults can be fixed by delivery of a new software version, by individual fixes or in any other way. The requirement for fault fixing is that the fault is reproducible and that they occur in the respective latest software version provided to the customer.
Support services do not include the software components required for operation (browser, operating system).
Support for older versions of the software will be provided for a maximum of 12 months after a new software version’s publishing date.
The licensor is authorized to delegate update and performance services to third parties in part or as a whole.
The applications and services offered are partially based on application and services by third parties. Therefore, the respective manufacturer’s „end user license agreements“also apply. These can be viewed at the manufacturers’ websites.
Start date of this agreement
The agreement begins at the date stated in the quote or in the online form.
Remuneration
The customer shall pay a monthly fee for the licensor’s services and licenses. The customer shall pay all charges or prices charged to their account in compliance with the fees, prices and settlement terms that apply at the due date of a fee or a price. The initial prices correspond to the total number of user licenses ordered multiplied with the currently applicable user license fee.
Payment can be made in advance per year or as agreed otherwise in an order form or an online order center. Any payment obligations cannot be cancelled, and all fees paid cannot be refunded. You are responsible for the payment of all user licenses ordered for the entire license period, regardless of whether these user licenses are already in active use.
The feel shall be due from the first day of the month in which the contract start date lies, plus the applicable VAT. The usage fee shall be due without any deductions in advance for the entire contract period.
If the software’s value increases by additional licenses, modules or customization, the additional fee shall be due from month following the extension according to the provisions of the existing agreement.
The licensor reserves the right to change fees and prices at any time and will inform you hereof within a 30 day notice period in writing. This announcement can be made by e-mail. A unilateral change of the rental fees by the licensor during the agreement period is excluded in this process. All prices are confidential and you oblige not to disclose the prices to third parties.
If the customer is in arrears on the rental fees for a period of 30 days, the licensor is authorized to demand immediate compensation of all due claims. In this case the licensor has a right of retention of all performances not delivered yet. In addition to the other rights the licensor is entitled to the licensor reserves the right to temporarily suspend or terminate this agreement and access to the services.
Overdue invoice amounts (accounts in arrear) are subject to interest rate of 1.0% per month or the legal maximum interest rate if this is lower plus all collection costs. During a suspension, the licensee will still be charged the user license fees. If this agreement should be terminated, the licensee is obliged to perform a balance of the fees and charges statement calculated in compliance with the above paragraph. The licensee consents with the licensor charging for such due fees.
These provisions apply accordingly when the customer turns insolvent.
Settlement and prolongation
The licensor charges in advance for the use of the service and shall collect due fees in advance. The licensor shall renew the agreement and shall automatically charge your credit card or issue an invoice to you (a) on a monthly basis for monthly licenses, (b) on a quarterly basis for quarterly licenses, (c) on an annual basis at the subsequent day of the year for annual licenses or (d) on a basis stipulated otherwise.
Each party is entitled to terminate this agreement or to reduce the number of licenses, but such action shall only take effect after expiry of the then applicable license period by notifying the respective other party in writing at least five business day prior to the date of the invoice for the subsequent validity period.
The fee for a prolongation shall correspond with the then applicable total number of user licenses multiplied with the license fee that applied during the previous validity period unless the licensor has notified you of an increased fee in writing with a minimum notice period of 30 days, which will enter into effect from the date of the prolongation.
Fees for other services shall be charged according to a quote.
Liability and compensation claims
In the case of breaches of duty the licensor shall be held liable in compliance with the legal provisions unless stated otherwise in this license agreement or if no other agreements have been made with the customer.
The licensor shall be held liable without limitation in case of intention and gross negligence, also that of their legal representatives or agents, and in case of personal injuries. In case of minor negligence, the licensor shall only be held liable and limited to the predictable damage typical to this contract given that a breach of duty exists whose fulfillment is critical for achieving this agreement’s purpose (cardinal obligation).
The licensor does not provide promises, goodwill or warranty regarding the reliability, precision or completeness of the contents and functions provided in the applications or in the services.
The provisions of the product liability act shall remain unaffected hereof.
In the case of data loss, the licensor shall only be held liable for those efforts that would have been required for an orderly data backup by the licensee required for restoring the data.
The licensor shall not be held for damages that arise from wrong use of the software. This includes, without limitations, damages arising from lost profits, disruption of business, loss of business information or data, or other financial losses.
The licensor shall not be held liable for the business success pursued by the deployment of the software by the licensee.
The licensor shall not be held liable for damages or failures caused by third-party vendors.
The licensee’s compensation claims against the licensor will become statute-barred one year after the claims arise unless shorter periods are provided by the law.
Mutual indemnity
The licensee obliges to compensate for and exempt the company’s licensor and the parent companies, subsidiary companies, affiliated companies, executives, members of the management, staff, legal representatives, and representatives of these companies from any claims, costs, compensatory financing, losses, liabilities and charges (including legal fees) that are a consequence of or related to (i) a claim that is filed under the claim that the use of the customer data has violated a third party’s rights or that has damaged a third party, (ii) a claim which, justified or unjustified, represent a violation of your guarantees and promises, or (iii) a claim arising from a breach of this contract by you or your users, always given that in such a case, the licensor (a) notifies you of that claim in writing; (b) grants you the sole right of defense and settlement of this claim (while you are only entitled to defend against or to settle a claim if you fully exempt the licensor from any liability and that such a settlement would not affect the licensor’s business or service); (c) provides you with all available information and support; and that (c) this claim has not already been settled by an arrangement.
The licensor obliges to compensate for and exempt licensee and the parent companies, subsidiary companies, affiliated companies, executives, members of the management, staff, legal representatives, and representatives of these companies from any claims, costs, compensatory financing, losses, liabilities and charges (including legal fees) that are a consequence of or related to (i) a claim that is filed under the claim that the service poses a direct infringement of copyrights, of a U.S. patent applicable from the date of effect or a third party’s trademark, (ii) a claim which, if justified, would pose an infringement by the licensor, his promises and warranties to the company, or (iii) a claim arising from a breach of this contract by the licensor, always given that in such a case, you (a) immediately notify the licensor of that claim in writing; (b) your grant the licensor the sole right of defense and settlement of this claim (while the licensor is only entitled to defend against or to settle a claim if the licensor fully exempts you from any liability ; (c) you provide the licensor with all available information and support; and that (c) this claim has not already been settled by an arrangement.
The licensor is not obliged to compensation of damages, and you shall compensate, according to this contract, the licensor on claims that are a consequence of copyright infringements due to the combination of the service with your services, your hardware or your business processes.
Changes to the licensing terms
The licensor reserves the right to change the company’s licensing terms or corporate service policy at any time with these changes taking effect with the implementation of an updated version of this agreement in the scope of the service.
It is the licensee’s duty to review this agreement in case of an update or prolongation. Continued use of the service after such changes shall be deemed your approval to these changes.
Miscellaneous
If provisions of this agreement are invalid, of if they lose validity due a circumstance that occurs at a later point in time, the validity of the other licensing terms shall remain unaffected hereof.
In this case, the invalid terms shall be replaced by a term which approximates the invalid term as closely as possible in a legal manner. The same shall apply to gaps in the licensing terms.
