PLEASE READ THIS LICENCE CAREFULLY BEFORE USING THIS SOFTWARE. SEMTATION GMBH WILL LICENCE THIS SOFTWARE TO YOU ONLY IF YOU FIRST ACCEPT THE TERMS OF THIS LICENCE. BY USING THIS SOFTWARE YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, PLEASE RETURN THE UNUSED SOFTWARE TO THE PARTY (EITHER SEMTATION GMBH OR ITS PARTNER) FROM WHOM YOU ACQUIRED IT WITHIN 30 DAYS TO RECEIVE A REFUND OF THE AMOUNT YOU PAID.
Part 1 – General Terms This Licence includes Part 1 – General Terms, Part 2 – Country-unique Terms and the Proof of Entitlement. In the event that the terms in Part 1 conflict with the terms in Part 2 then the terms in Part 2 shall prevail. The Parties agree that this Licence contains the entire agreement of the parties and supersede all prior agreements, understandings or arrangements between them and further each Party acknowledges: (a) that it has not entered into this Licence on the basis of and does not rely and has not relied upon any statement or representation (whether negligently made or innocently made) or warranty or other provision (whether oral, written, express or implied) except those expressly repeated or referred to in this Licence and/or the Schedules; and (b) the only remedy or remedies available in respect of any misrepresentation or untrue statement made to it shall be a claim for breach of this Licence and/or the Schedules; and (c) each Party further acknowledges that this clause shall not apply to any statement, representation or warranty made fraudulently or to any provision of this Licence and/or the Schedules which was induced by fraud so that nothing in this Licence or the Schedules shall affect the remedies available to the parties in respect of such fraudulent matters.
1. Licence Copyright This Software, any copies of it regardless of form and its user documentation is at all times owned by Semtation GmbH, one of its subsidiaries, holding companies or an Semtation GmbH supplier. It is protected by copyright. It is licensed to you only if you agree to these terms and conditions. This Software and its user documentation is not sold to you. You own only the diskette (or authorised replacement) on which this Software is recorded. You may retain the diskette on termination of this Licence provided this Software has been erased. Semtation GmbH or its Suppliers are the proprietors of all intellectual property rights and moral rights including copyright in this Software and its user documentation. These rights are protected by the Copyright Acts of the Federal Republic of Germany and other applicable copyright acts and international contractual agreements. Semtation GmbH reserves all its rights.
Use of this Software Semtation GmbH grants you a revocable, non exclusive, non transferable Licence to use this Software and its user documentation. You may use this Software to the extent set out in the Proof of Entitlement. If you have a database Licence you may use this Software on every database it has been installed on in accordance with this Licence. If the Licence is a company Licence you may use this Licence only at the locations specified in this Licence. You are allowed to use company Licences without a restriction on the number of users. The company Licence also has an opportunity to include one additional subsidiary. You are allowed to use this Software on one or more Computers or Servers. The type of Licence and number of users is defined in the Proof of Entitlement. You will ensure that anyone who uses this Software does so only in compliance with the terms of this Licence. You may produce two backup copies of this Software and its user documentation. You may not produce more copies than are required for use of this Software in accordance with the Licence. The transfer of a backup copy to a third party or use of the original or both backup copies simultaneously is not acceptable. Any copies of this Software or user documentation must reproduce and include Semtation GmbH’s copyright and trade mark notice. You may not 1) use, copy, reproduce, mix/assort, modify, adapt or distribute this Software except as provided in the Licence; 2) reverse assemble, reverse compile, or otherwise translate this Software, except as specifically permitted by law without the possibility of contractual waiver; or 3) sublicence, rent, lend or lease this Software, its user documentation or any part of either. The authorisation to use this Software applies to any Software Upgrades only for as long as you have a valid maintenance contract with Semtation GmbH.
2. Charges and Taxes Semtation GmbH charges a Licence fee for the use of this Software. This is specified in the Proof of Entitlement. Charges are based on the type of Licence you have. This is set out in the Proof of Entitlement. If you wish to increase the extent of use please notify Semtation GmbH or its partner and pay any applicable charges. Semtation GmbH does not give refunds or credits for charges already due or paid. If any authority imposes a duty, tax, levy or fee, excluding those based on Semtation GmbH’s net income, upon this Software supplied by Semtation GmbH under this Licence, then you agree to pay that amount as Semtation GmbH specifies or supply exemption documentation.
3. Limited Warranty Semtation GmbH warrants that in general this Software meets the current Software Specification (which will only be provided in digital form) in all material respects and thus when this Software is used in the specified operating environment it will.4 conform to its specifications. Semtation GmbH does not warrant uninterrupted or error-free operation of this Software or that it will correct all Software defects. You are responsible for the results obtained from the use of this Software. As this Software is very complex and not completely error-free by nature, Semtation GmbH recommend that you check your work and make a backup copy on a regular basis. Subject to differing regulations of this Licence, Semtation GmbH accepts no explicit or implied responsibility regarding this Software or its user documentation, including quality, design, commercial quality or suitability for a certain purpose other than those expressly set out in this Licence. During the statutory warranty period or the warranty period set out in this Licence Semtation GmbH takes responsibility for errors in this Software present at the time of delivery to the Licence holder, in accordance with the following regulations: 1. Errors are defined as deviations of this Software from contractually agreed functions as far as these deviations affect the suitability of this Software for the contractually agreed use. 2. The Licence holder shall communicate any errors of which he/she has been informed or has detected himself/herself to the licensor within the warranty period. Obvious defects must be notified within two weeks. Traders must notify hidden defects within 20 days after their detection. The notification period for non-traders is six months in the case of hidden defects. No defects reported late justify any claims against the Licence holder. 3. The notice of defect must be submitted in writing and contain information on how the defect manifests itself, what effect it has and under which circumstances it occurs. 4. Upon receipt of the notice of defect, the licensor will rectify the defect within a reasonable timeframe. Semtation GmbH is entitled to perform this rectification by providing the Licence holder with an altered version of this Software no longer containing this defect. 5. The Licence holder is entitled to the statutory warranty rights of reducing the amount of Semtation GmbH’s claim for payment (to lower it, annul or alter the contract) if it is impossible from the beginning to rectify the defect or if Semtation GmbH does not manage to perform the rectification within an appropriate timeframe and the rectification is then not successfully performed within a further extension granted by the Licence holder. These warranties are final/concluding and in lieu of all other warranties, conditions, whether oral or in writing, express or implied, undertakings, terms and obligations implied by statute, common law, trade usage, course of dealing or otherwise all of which are hereby excluded to the fullest extent permitted by law. No Distributor, Partner, Representative or employee of Semtation GmbH is allowed to change or increase these warranties. The warranty period for this Software expires when its Software service is no longer available. The Software services are specified in the maintenance contracts. Some jurisdictions do not allow the exclusion or limitation of implied warranties, so the above exclusion or limitation may not apply to you. In that event such warranties are limited in duration to the warranty period. No warranties apply after that period. Any warranty under this Licence is available to the original registered user only.
4. Limitation of Liability 1. Regardless of the legal argument including illegal actions, Semtation GmbH is only obliged to pay damages if the damages were caused by(1) non-accidental violation of a substantial obligation (cardinal obligation) on the part of Semtation GmbH in a way which endangers the purpose of the contract being achieved or (2) gross negligence or wilfulness on the part of Semtation GmbH. 2. If Semtation GmbH is liable for infringement on a substantial obligation in accordance with Section 1 (1) without Semtation GmbH being blamed for gross negligence or wilfulness, Semtation GmbH’s liability is limited to typically predictable damages and three times the amount of payment for this Software. 3. If Semtation GmbH is liable for gross negligence or wilfulness of employees who are not bodies or executive employees of Semtation GmbH in accordance with Section 1 (1) or (2), Semtation GmbH’s liability is limited to typically predictable damages and three times the amount of payment for this Software. 4. Semtation GmbH is not liable for indirect damages, deficiency losses or lost profits as long as they were not caused wilfully or by gross negligence of bodies or executive employees of Semtation GmbH. 5. All Semtation GmbH’s liabilities are limited to such typical damages Semtation GmbH could reasonably expect due to the circumstances known to Semtation GmbH at the time of signing the contract. In particular, the liability for loss of data is limited to the typical recovery efforts occurring when backup copies are made regularly and appropriately. 6. The exclusion or limitation of claims in accordance with the afore-mentioned Sections 1 to 5 includes claims against employees and representatives of Semtation GmbH.
5. Infringement of intellectual property rights Should claims be made against you that the normal use or possession of this Software infringes the intellectual property rights of any third party, Semtation GmbH must immediately and continuously be informed about all matters concerning the alleged infringement of such rights. In the event of legal proceedings you agree that a lawyer appointed by Semtation GmbH and exclusively bound by Semtation GmbH’s instructions will be appointed and given the complete power of attorney by Semtation GmbH to conduct the proceedings. Semtation GmbH must be provided with all information and material on the matter. You must not prejudice Semtation GmbH’s defence of the claim and must give all reasonable assistance. Semtation GmbH takes all decisions in this matter.
6. General Any changes to this Licence need to be attached in written to this Licence and agreed in writing by Semtation GmbH. Nothing in this Licence affects any statutory rights of consumers that cannot be waived or limited by law. Semtation GmbH may terminate your Licence if you fail to comply with any of the terms of this Licence. If Semtation GmbH does so, your authorisation to use this Software is also terminated. You agree to comply with applicable export laws and regulations. Neither you nor Semtation GmbH will bring a legal action under this Licence more than two years after the cause of action arose unless otherwise provided by local law without the possibility of contractual waiver or limitation. Neither you nor Semtation GmbH is responsible for failure to fulfil any obligations due to causes beyond its control. This contract is governed by the law of the Federal Republic of Germany. UN Sales Law does not apply. Unless varied by Part 2, the place of jurisdiction for all disputes occurring due to and in the context of this contract is Potsdam, Germany.. 7. Safeguarding clause Should individual sections of this contract be or become null and void, the validity of the remainder of the contract remains unaffected. The parties to the contract agree to replace these elements by a valid regulation which meets the economically desired purpose as ideally as possible. The same applies in the case of any unforeseen shortcomings.
Part 2 – Country-unique Terms
Limitation of Liability (Section 4) The following paragraphs replace the complete section: 1) Semtation GmbH accepts full responsibility for any personal injury or death caused by its negligence and such other liability which cannot be excluded or limited by law. 2) Subject to clause 4.1 above Semtation GmbH’s maximum liability and your sole remedies (running from the date of this Licence) arising out of any claim in contract, tort (including negligence, breach of statutory duty (or other legal liability) pursuant to this Licence shall in no circumstances exceed 3x the cost of Software. 3) Subject to clause 4.1 above Semtation GmbH shall not be liable to you for loss or revenue, business profits, anticipated profits or business, goodwill, contracts, loss of data or for any indirect, consequential or special loss whether arising from negligence, breach of contract or howsoever. This sub-clause applies notwithstanding that Semtation GmbH may have know or been advised of the possibility of such loss. 4) Subject to clause 4.1 save as expressly provided in this Licence there are no other conditions, warranties or representations (express or implied) with respect to this Software and any condition implied by law which is capable of being excluded is expressly excluded.
General (Section 6) The following replace the last part in the section: This Licence is governed by English Law and both parties agree to submit to the exclusive jurisdiction of the Courts of England and Wales.
The following two sections are added to Section 1-7: 8. Assignment You shall not assign or otherwise transfer this Licence without the prior written consent of Semtation GmbH. 9. Rights of Third Parties Unless expressly provided in this Licence, no term of this Licence is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not party to it.