Software Licensing Agreement
VIPA Gesellschaft für Visualisierung und Prozessautomatisierung mbH,
Ohmstr. 4, D-91074 Herzogenaurach,
and you, the "User"
Art. 1 Subject Matter
- The subject matter hereof is the computer program provided by VIPA to the User (free demo version/purchased full version, the scope of performance and use depends on the terms of this Agreement and the type of license purchased by the User), the user documentation (user manual) and other associated materials, hereinafter collectively called the "Software".
- The Software was developed exclusively for commercial purposes. Its use is permitted for commercial purposes only. Use of the Software for high-risk activities according to Art. 8 is not permitted.
- If the Software is available as a demo version with limited functionality, it shall be ready for download free of charge from the website www.vipa.de. The demo version may only be used for testing purposes and in a test environment.
- The User must purchase a license for the Software to convert a demo version with limited functionality into a full version or to purchase a full version. The costs incurred for such purchase depend on the agreed scope of use (especially single or multi-user version) and can be identified in the applicable price list or requested from VIPA. If a full version of the Software is not created by activating a demo version through entering a license key, VIPA shall provide the full version to the user for download from the website www.vipa.de. Unless temporary use was expressly agreed, the User shall be given the full version of the Software for an indefinite period of time. After entering the license key, the full version can be used without limitation in functionality and outside a test environment to the extent such use is permissible hereunder (especially Art. 8).
- VIPA shall generally transfer the license key to the User together with a license document that details the scope of use upon conclusion of the contract of purchase and sale. VIPA is entitled to withhold the license key and license document until full payment of the purchase price. The User shall store the license key in a safe place for later use.
- If delivery of the Software on a data carrier was agreed as well, VIPA shall send the Software to the User by mail. VIPA shall send any license key and the license document to the user by email or regular mail in this case; these items may be sent in a separate letter.
- The full version of the Software is deemed delivered when the User receives the license key.
- A hard copy of the user manual is not included in the range of delivery. The documentation is mostly made up of electronic aids.
- Installation of the Software is not subject to this Agreement. It may optionally be agreed separately with VIPA
Art. 2 Rights of Reproduction and Access Protection
- The User may reproduce the delivered Software if such reproduction is necessary for using the Software as agreed under Art. 3. Necessary reproductions include, in particular, installation of the Software from the original data carrier onto the mass storage device of the hardware used and loading the Software into the random access memory.
- The User may, in addition, make a copy for backup purposes. Users are generally allowed to make and keep one single backup copy only.
- The User shall be obligated to take suitable precautions to prevent unauthorized access by third parties to the Software and the documentation. The original data carriers delivered and the backup copies must be kept in a place that is secured against unauthorized access by third parties. The User must expressly instruct his employees to observe the terms of this Agreement and the provisions of the German Copyright Act.
Art. 3 Multiple Uses and Network Deployment
- The User may use the Software under a single-user license once on each hardware system available to him, whereas the right of use granted to him under the single-user license refers only to the respective hardware system. Additional licenses must be purchased if the Software is to be used at multiple locations (e.g. a terminal server). If the User changes the hardware system, he has to delete the Software from the hardware system it was used on before.
- Simultaneous storage, keeping or using the Software on more than one hardware system (multi-user license) is only permitted if agreed accordingly. If the User wishes to use the Software simultaneously on multiple hardware configurations, e.g. by multiple employees, he has to purchase a respective multi-user license. When purchasing a multi-user license (e.g. for educational facilities, enterprises, groups of companies, etc.), the right of use applies to the agreed number of simultaneous logins, i.e. to the agreed number of users who work with the Software at the same time. Simultaneous use of the Software beyond the agreed scope is not permitted.
- The use of the licensed Software within a network or other multi-terminal computer system is not permitted if it creates an opportunity for multiple simultaneous use of the Software. If the User wishes to deploy the Software within a network or other multi-terminal computer system, he must prevent multiple simultaneous use with access protection mechanisms or purchase a multi-user license from VIPA. The amount of the multi-user license fee is calculated based on the number of users connected to the computer system. VIPA shall inform the User promptly on the individual network fee as soon as the User has informed VIPA in writing about the planned network deployment including the number of connected users. Use of the Software in such a network or multi-terminal computer system is not permissible until the network fee has been paid in full.
Art. 4 Decompilation and Software Changes
- The User shall not be entitled to decompile, change, or edit the Software beyond the extent provided by law.
- Copyright notices and other notices regarding intellectual property rights within the Software may neither be removed nor changed. They must be transferred to each and every copy of the Software.
Art. 5 Resale and Sublease
- The User may sell or provide a full version of the Software including the user manual and other accompanying materials permanently to third parties, under the condition that the purchasing third party agrees that the terms hereof continue to apply to him as well. If the Software is passed on, the User must hand any and all software copies, license keys and license documents including any backup copies to the new user or destroy the copies not handed over. As a result of the transfer, the right of the previous user to use the software shall expire. He is obligated to comply with the notification requirements of Art. 13 (1) hereof.
- The User may let third parties have the full version of the Software including the user manual and other accompanying materials temporarily, unless this is done by way of renting or leasing out for gainful purposes (e.g. Application Service Providing, Software as a Service, etc.) and if the third party agrees that the terms hereof continue to apply to him as well and the assigning user hands over any and all software copies, license keys, license documents, and any backup copies that may exist, or destroys the copies not handed over. The assigning user shall not be entitled to use the Software on his own for the period the full version of the Software has been given to a third party. Software rental or leasing for gainful purposes (e.g. Application Service Providing, Software as a Service, etc.) shall not be permitted.
- The User may not provide the full version of the Software to third parties if there is cause to suspect that a third party will violate the terms hereof, especially the creation of unauthorized reproductions. This also applies to the User's employees.
- Permanent or temporary passing on of the demo version of the Software by the User to third parties for a fee or free of charge is not permitted.
Art. 6 Warranty rights
- Defects shall be remedied, at VIPA's choice, by removing the defect (rectification) or providing a software product free of defects (replacement delivery).
- VIPA may also deliver a new program version with at least the same functionality as a replacement delivery unless this constitutes a hardship for the User, e.g. if this requires another operating system or more powerful hardware. It does not constitute a hardship if the User has to make himself familiar with a changed program structure or user interface.
- If the defect cannot be remedied in an adequate period of time or if the rectification or replacement delivery has to be deemed as failed for other reasons, the User may, at his choice, reduce the purchase price or withdraw from the Agreement, demand compensation for damages or reimbursement of fruitless expenditures. The two latter claims shall be regulated as provided in Article 9 hereof.
- Rectification or replacement delivery may only be deemed as failed if VIPA was given sufficient opportunity for rectification or replacement delivery and the service owed has not been rendered, if rectification or replacement delivery is impossible, is rejected or unreasonably delayed by VIPA, in case of reasonable doubts regarding the chances for success, or if unacceptability arises from other reasons.
- VIPA shall rectify defects of the delivered full version of the Software (material defects and defects of title) including the user documentation and other documents (see Art. 10) after receiving written notification from the User (see Art. 7) within the warranty period.
Art. 7 Obligation to Inspect and Report Defects
- The User shall inspect the full version of the Software including the documentation within 10 business days of delivery, especially with respect to completeness of data carriers and manuals and to the operability of basic program functions. VIPA must be notified in writing of any defects that are, or can be detected during this inspection within another 10 business days. The report of the defect must include a description of the defects to the best level of detail the User can muster. Specifications of a defect report form provided shall be taken into account.
- Defects that cannot be detected during the appropriate inspection described above must be reported within 10 business days after their detection and in compliance with the notification requirements specified in paragraph 1.
- In the event that the obligation to inspect and report defects is violated, the full version of the Software shall be deemed approved with regard to the relevant defect.
Art. 8 High-risk Activities
The Software is not fault-tolerant and was not designed, manufactured, or intended to be used or marketed as a control, parameterizing, or data collection tool in hazardous environments that require fail-safe operation, such as nuclear installations, aircraft navigation or aircraft communication systems, air traffic control, medical devices or weapons systems in which a software failure may result in death or personal injury, severe material damage or damage to the environment ("high-risk activities"). VIPA and its suppliers reject any and all express or implied warranties with respect to suitability for high-risk activities.
Art. 9 Liability
- The User's claims for compensation for damages or reimbursement of fruitless expenditures shall be governed by this clause, regardless of the legal nature of the claim.
- VIPA shall only be liable in the following cases:
a) Damages arising from injury to life, body, or health caused by an intentional or negligent breach of duty on the part of VIPA or an intentional or negligent breach of duty on the part of a legal representative or vicarious agent of VIPA.
b) For all other liability claims, VIPA shall only be liable for non-existence of a guaranteed condition and intentional or grossly negligent acts, including such acts committed by its legal representatives and executives. VIPA shall be liable for the culpability of other vicarious agents only to the extent of its liability for slight negligence under No. 2 c) of this liability clause.
c) VIPA shall only be liable for slight negligence if a duty is breached that is of particular importance for achieving the purpose of this Agreement (cardinal duty). Liability for breaching a cardinal duty shall be limited in amount to the quintuple of the license fee and to such damages that are typically foreseeable in connection with the licensing of the Software.
- Liability for the loss of data shall be restricted to the typical retrieval expenditure that would have occurred if data were backed up regularly and in accordance with the risk involved. Insufficient data backup shall be deemed to have occurred if the User failed to take precautions in the form of adequate, state-of-the-art security measures against outside interference, in particular against computer viruses and other phenomena that can place individual data or the entire data inventory at risk.
- The Software and the user application (such as a machine or plant) may behave differently during and after a software update/upgrade. This change can be caused by bug fixes, extended functionality, new system properties or errors in the Software. The User shall ensure that the software update/upgrade takes place in a safe environment and that no damages can arise in the process.
- The above provisions shall apply likewise to VIPA's employees.
- Liability under the Product Liability Act shall remain unaffected (Art. 14 ProdHG).
Art. 10 Warranty Period and Period of Limitation
- The period for claims arising from material defects and defects of title shall be limited to one year from delivery. This shall not affect special statutory provisions for claims for the restitution of property of third parties (Art. 438 Para. 1 No. 1 of the German Civil Code (BGB)), fraudulent intent by VIPA (Art. 438 Para. 3 BGB) and claims as part of supplier recourse in case of final delivery to a consumer (Art. 479 BGB).
- The limitation periods of the Product Liability Act remain unaffected.
- The above periods of limitation shall also apply to contractual and non-contractual claims for damages of the User that are based on a defect of the commodity, unless the statutory period of limitation (Arts.195, 199 BGB) would result in a shorter period of limitation in the case under review.
- Notwithstanding the above periods of limitation, the statutory periods of limitation shall apply
a) to the User's claims for damages arising from injury to life, body, or health caused by an intentional or negligent breach of duty on the part of VIPA or an intentional or negligent breach of duty on the part of a legal representative or vicarious agent of VIPA;
b) for all other liability claims including those arising from material defects or defect of title, only to non-existence of a guaranteed or warranted condition and intentional or grossly negligent acts by VIPA and its legal representatives and executives;
c) to slight negligence only if a duty is breached that is of particular importance for achieving the purpose of this Agreement (cardinal duty).
Art. 11 Duty to Exercise Care
The User shall store the original data carriers delivered or backup copies thereof in a place secured against unauthorized access by third parties and shall expressly instruct his employees to comply with these contractual terms and inform them about the agreed rights of use (especially according to Arts. 2 and 3).
Art. 12 Software Maintenance and Support
If agreed between the Parties, VIPA shall be obligated, upon the User's request, to conclude an agreement covering other services, in particular software maintenance and/or support at common terms within six weeks from the date the Agreement is concluded.
Art. 13 Notification Duties
- If the User sells the Software, he shall be obligated to notify VIPA in writing of the buyer's name and full address.
- If the licensed software is a software product that has been customized to the User's hardware and was purchased at a price of more than €5,000, the User shall also be obligated to notify VIPA of a hardware change. The same applies if the User wishes to deploy the respective software within a network.
- The above notification duties may also be met by sending an email to the following address: info@VIPA.com.
Art. 14 Reservation of Title
- VIPA shall retains title of ownership of the Software delivered to the User including the license key and license document until any and all amounts payable according to this Agreement at the time of delivery have been paid in full.
- At the time VIPA asserts its right to retain ownership, the User's right to continue to use the Software expires. Any and all software copies created by the User must be handed over or deleted.
Art. 15 Final Provisions
- In the event of discrepancies between the German and English version of these General Terms and Conditions, the German version shall prevail.
- If the User also uses general terms and conditions, this Agreement shall come into existence even in the absence of express agreement on the incorporation of general terms and conditions. Different general terms and conditions shall be deemed agreed if they match in content. The provisions of German law shall replace conflicting terms and conditions. The same shall apply if the User's terms and conditions include provisions that are not contained herein. If the terms and conditions herein contain provisions that are not contained in the User's terms and conditions, these terms and conditions shall apply.
- All Agreements containing a change, amendment, or specification of these terms and conditions as well as special warranties and agreements must be made in writing. Declarations concerning the aforementioned by representatives and agents of VIPA shall be binding only if VIPA grants its written consent.
- The Parties agree that the laws of the Federal Republic of Germany shall apply to all legal relations arising from these contractual relations, under exclusion of the U.N. Convention on the International Sales of Goods
- If the customer is a businessman as defined in the German Commercial Code, a legal entity under public law or a special fund under German law, the agreed venue for all disputes arising from this contractual relationship shall be Nuremberg.
- VIPA's General Terms and Conditions shall apply as supplementary provisions to the contractual relationship between VIPA and the User unless the above provisions regulate the contractual relationship.