End User License Agreement
As of 28.02.2017
INFORMATION FOR USERS: PLEASE READ THE FOLLOWING BINDING AGREEMENT (“AGREEMENT”) CAREFULLY; THIS AGREEMENT LICENSES ECOS Technology GmbH (“ECOS”) SOFTWARE (“SOFTWARE”) BETWEEN YOU AND ECOS.
IF YOU PURCHASED THE SOFTWARE ON THE INTERNET BY CLICKING THE “CONFIRM” BUTTON, YOU (“YOU” IN THIS CASE REFERS EITHER TO A NATURAL PERSON OR A LEGAL PERSON) AGREE TO BECOMING A PARTY TO THIS AGREEMENT AND AS A RESULT OF THIS, TO BE CONTRACTUALLY BOUND. IF YOU DO NOT AGREE TO ALL TERMS UNDER THIS AGREEMENT, YOU SHALL CLICK THE “DISMISS” BUTTON AND MUST NOT INSTALL THE SOFTWARE.
IF YOU PURCHASED THE SOFTWARE ON A DATA STORAGE MEDIUM, YOU (“YOU” IN THIS CASE REFERS EITHER TO A NATURAL PERSON OR A LEGAL PERSON) AGREE TO BEING BOUND BY THIS AGREEMENT AFTER OPENING THE CD CASE. IF YOU DO NOT AGREE WITH ALL TERMS UNDER THIS END USER LICENSE AGREEMENT, DO NOT OPEN THE CD CASE.
BY INSTALLING OR USING THE SOFTWARE YOU (“YOU” IN THIS CASE REFERS EITHER TO A NATURAL PERSON OR A LEGAL PERSON) AGREE TO BEING BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL TERMS UNDER THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.
The software licensed under this Agreement includes the ECOS Product and its components plus all updates and upgrades delivered in machine code. The references to Software under this Agreement include the activation key (“License Key File”) that You will receive from ECOS as part of the Software.
Section 1: Licensing Models
(1) Subscription-based software license. If the Software is licensed as a subscription, the Software is licensed for the duration of the subscription. The license subscription also includes the Up-To-Date Service for the said duration.
Please note that, to extend a license subscription, You must subscribe to a new license for the following term before the current license subscription ends.
(2) Perpetual software license. If the Software is sold under a perpetual license, You have the right to use the software perpetually. The perpetual software license does not cover the Up-To-Date Service that You may receive separately for a limited time and which is invoiced separately.
Section 2: Reproduction Rights
(1) You have the right to copy the program delivered to You if the use of the program is dependent upon this. Such reproduction also includes the installation of the program from the original data storage medium on the hard drive of the hardware used and loading the program into the RAM.
(2) Moreover, You are authorized to make copies for backup purposes.
(3) Other forms of reproduction, including hardcopy printouts of the program’s source code or photocopies of the manual, are not permitted.
Section 3: Restrictions
The End User is not authorized (and shall refrain from authorizing third parties) to: (a) decompile, retranslate or reverse engineer the Software, or attempt to recreate or to disclose the source code, the underlying concepts, algorithms, file formats or programming interfaces of the Software in any form or manner; (b) to distribute, sell, sublicense, lease, rent or use the Software (or parts of the Software) for multi-user systems, hosting, providers or other purposes; (c) to remove product identifications, proprietary, copyright or other notices in the Software; (d) to modify parts of the Software or create derivative works therefrom; or (e) to publicize performance-based information or analyses (including benchmarking) of a source that refers to the Software.
The above section does not apply to open-source components used in the Software.
It is not permitted to use the Software in the fields of the police, of armed forces, of law enforcement agencies and the judiciary.
Section 4 Perpetual Licensing and Subscription-based Licensing to Third Parties. Transfer of Rights
(1) Under no circumstances are You authorized to fully or partially sell, lend, rent, lease, license, sublicense, publish, illustrate or distribute a copy of, or a right to, the Software, or transfer such to a third party without the prior written approval of ECOS; however, You may permanently transfer your rights from this Agreement to an other natural person or legal person if You are expressly granted such an unalienable right by the relevant law under your legal system and insofar as you simultaneously transfer this Agreement, the Software and all printed materials.
(2) You are not authorized to transfer or assign the rights or obligations under this Agreement unless expressly otherwise agreed in this Agreement.
Section 5: Property Rights
(1) Without prejudice to other provisions of this Agreement, ECOS and its licensors have and maintain all rights, property rights or titles to the software and its copies, modifications and derivative works (including patents, copyrights, trademarks, trade secrets and other intellectual property rights). The End User acknowledges that it is only given a limited license right to the Software and that in the framework of this Agreement or in any other form or manner, despite the use of terms like “purchase” or “sale”, no property rights are transferred to You. The End User acknowledges that ECOS’ licensors have a material interest in this Software and that, insofar as this EULA is not formed directly with them, they are the beneficiaries of this EULA.
(2) Upon request, the End User confirms in writing that it uses the Software for the number of servers as agreed by the Parties, with the agreed number of copies and with the agreed system configuration and at the agreed location (as applicable). The End User agrees to its use of the Software being audited by ECOS or its licensors (and/or an independent auditor on behalf of the Parties) during regular office hours and following a written notification which is subject to a reasonable lead time, however not more than one time per year, to prove that the End User fulfils this EULA.
Section 6: Third Party Rights
(1) Subject to the remaining part of this Section 6, ECOS will defend You against third-party claims which claim that the Software breaches patent, trademark or copyrights of third parties or third-party trade secrets in an inadmissible manner (however only insofar as such inadmissible use is not caused by your action) (“Infringement of Intellectual Property Rights”) and shall indemnify You against all costs and compensation which the respective court awarded to the individual third party against You, or which were agreed by settlement. The above obligations apply only if You: (i) inform ECOS immediately in writing of such a claim for Infringement of Intellectual Property Rights; (ii) transfer the exclusive control of the defense against this claim and all settlement negotiations to ECOS; and (iii) upon request, cooperate to support ECOS appropriately. Without ECOS’ prior written consent You may not settle any claim for the breach of property rights.
(2) Should the Software allegedly infringing property rights become the subject matter of a claim for the Infringement of Intellectual Property Rights or, at ECOS’ opinion, be likely to become the subject matter of such a claim, ECOS, at its own choosing and at its own expense, will pursue one of the following actions: (a) procure the required rights to ensure Your further use of the Software concerned; or (b) replace or modify the Software concerned so that the Infringement of Intellectual Property Rights no longer applies. Nothing in this section (2) restricts ECOS’ liability to defend You pursuant to section (1) and to indemnify You insofar as You replace the Software allegedly infringing property rights and/or as soon as ECOS provides you with an alternative Software.
(3) Notwithstanding the above provisions, ECOS has no liability under this Section 6, or in any other form or manner in relation to any claims caused by: (a) combining the Software with non-ECOS products (exception: non-ECOS products listed in the order and used in unmodified form); (b) use of the Software for a purpose or in a manner for which the Software was not designed; (c) use of an older version of the Software if use of a newer ECOS version could have prevented the Infringement of Intellectual Property Rights; (d) any modification of the Software which was performed without the explicit written consent of ECOS; (e) any claim regarding Open Source Software or Freeware technology or any derivative works or other adaptations that ECOS did not embed in the Software that is listed in ECOS’ commercial price list; or (f) any software provided free of charge as a beta version or as a test version.
Section 7: Warranty
(1) Defects in the delivered Software including the operating instructions and other documents will be remedied within the warranted period of 12 months upon notification by the End User (for consumers, 24 months) as from the date of delivery. ECOS may repair the defect free of charge or replace the defective item.
(2) If the defect cannot be repaired within a reasonable time, or if the repair or the substitute delivery fail for any other reason, the End User may demand either a reduction of the purchase price or withdraw from the contract. The repair or substitute delivery are only deemed to have failed if ECOS had reasonable opportunity to perform the repair or substitute delivery or if they were rejected by the Seller or if they were unreasonably delayed.
(3) ECOS does not assume any liability for the defect-free operation of the Software if the terms as laid out in the system documentation are not complied with or if You breach the provisions laid out in this Agreement.
(4) WITH THE EXCEPTION OF THE ABOVE THE SOFTWARE WILL BE SUPPLIED AS-IS. ECOS DOES NOT MAKE ANY COMMITMENTS AND DOES NOT PROVIDE ANY GUARANTEE REGARDING THE USE OR THE PERFORMANCE OF THE SOFTWARE. WITH THE EXCEPTION OF A WARRANTY, A WARRANTED QUALITY, A COVENANT OR PROVISION WHICH CANNOT BE (AND INSOFAR ARE NOT) EXCLUDED OR RESTRICTED UNDER THE RELEVANT LAW, ECOS DOES NOT ASSUME A WARRANTY, A WARRANTED QUALITY, A COVENANT OR PROVISION (EXPRESS OR IMPLIED, BY LAW, CASE LAW, CUSTOMARY LAW, USE OR OTHERWISE) REGARDING AN OBJECT INCLUDING THE NON-BREACH OF THIRD-PARTY RIGHTS, MARKETABILITY, SATISFACTORY QUALITY, INTEGRATION OR APPLICABILITY FOR SPECIFIC PURPOSES. YOU (THE END USER) ACCEPT THE ERRORS AND THE COMPLETE RISK REGARDING THE PERFORMANCE AND THE RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO OBTAIN YOUR PREFERRED RESULT AS WELL AS FOR THE INSTALLATION, THE USE AND THE RESULTS OF THE SOFTWARE.
(5) The above warranty provisions do not apply if you (a) manipulate the Software without the consent of ECOS or arrange for its manipulation; (b) use the Software in a manner for which it is not intended; or (c) use the Software other than permitted under this Agreement.
Section 8: Limitation of Liability
ECOS AND ITS LICENSORS ARE LIABLE FOR CLAIMS OR DAMAGE ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT ONLY IN THE EVENT OF INTENT OR GROSS NEGLIGENCE. THE ABOVE LIMITATION OF LIABILITY DOES NOT APPLY IN THE EVENT OF COMPELLING STATUTORY REGULATIONS. ECOS AND ITS LICENSORS ARE NOT LIABLE FOR CLAIMS OR DAMAGE THAT ARISE FROM OR IN CONNECTION WITH THIS AGREEMENT (I) IF THE DAMAGE IS THE RESULT OF USING THE SOFTWARE IN A MANNER THAT DOES NOT COMPLY WITH THE DOCUMENTATION; OR (II) IF THE DEFECT OR THE DAMAGE WERE CAUSED BY THE USER, A MODIFICATION OR EXTENSION BY A THIRD PARTY OR A THIRD-PARTY SOFTWARE.
ECOS AND ITS LICENSORS ARE NOT LIABLE FOR CLAIMS OR DAMAGE FROM THE USE OF THE SOFTWARE AND/OR THIRD-PARTY SOFTWARE LICENSED UNDER THIS AGREEMENT DEEMED HAZARDOUS IN THE FIRST PLACE.
WITHOUT PREJUDICE TO OTHER PROVISIONS OF THIS AGREEMENT, ECOS’ MAXIMUM LIABILITY UNDER THIS AGREEMENT AMOUNTS TO A TOTAL WHICH CORRESPONDS TO, OR IS LESS THAN, THE FOLLOWING TWO AMOUNTS: € 50,000 OR ANY AMOUNT WHICH CORRESPONDS TO THE PAID LICENSE FEES FOR SOFTWARE THAT DIRECTLY CAUSED THE DAMAGE.
IN NO CASE IS ECOS OR ITS LICENSORS LIABLE FOR DAMAGE THAT IS NOT DIRECT DAMAGE. ANY LIABILITY ON BEHALF OF ECOS OR ITS LICENSORS BEYOND THIS IS EXCLUDED, REGARDLESS AS TO ITS TYPE, WHETHER OF CONTRACTUAL OR TORTIOUS NATURE AND REGARDLESS AS TO WHETHER THE LICENSEE HAS BEEN CAUTIONED ABOUT THE POSSIBILITY THAT SUCH DAMAGE MIGHT OCCUR.
IN NO ACCOUNT ARE ECOS OR ITS LICENSORS LIABLE FOR AN AMOUNT OF COMPENSATION RESULTING FROM OR IN CONNECTION WITH THIS AGREEMENT DUE TO ATYPICAL, ANCILLARY, CONSEQUENTIAL OR DIRECT DAMAGE, FROM COSTS OR EXPENSES, FROM THE LOSS OF GOODWILL, REVENUES OR FINANCIAL GAIN, DUE TO WORK STOPPAGE, FROM THE LOSS OF DATA OR CONTRACTUAL PENALTIES.
NATIONAL LAW SHALL APPLY REGARDING THE LIABILITY OF THE PARTIES FOR PERSONAL INJURY OR DEATH TO THE EXTENT AS THIS IS CAUSED BY THE NEGLIGENCE OF THE RESPECTIVE OTHER PARTY, ITS PERSONNEL OR SUBCONTRACTORS AS WELL AS DUE TO WILLFUL MISCONDUCT AND GROSS NEGLIGENCE.
Section 9: Confidentiality
You agree that the Software and the information regarding the Software, including keys, technology, know-how, concepts, algorithms, testing, structures, interfaces, specifications, documentation, programming errors, error reports, analyses and performance information as well as other technical, economic and product-related data, documents, including special designs and the structure of special programs and the license key file, are confidential and protected information of ECOS. You are not authorized to disclose the confidential information in any form whatsoever without the prior written consent of ECOS to third parties, to provide such information to third parties or grant third parties access in any other manner. You will pursue reasonable security measures to protect the confidential information and without restricting the above You will endeavor to protect the license key file.
Section 10: Export
(1) National export regulations and provisions apply to the software application. You agree that these export control laws shall govern the use of the Software (including technical data) and other items to be delivered under this Agreement and You agree to comply with these export control laws and provisions. The End Users agree that no data, information, Software and/or materials (or direct products therefrom) will be executed in direct or indirect violation of these laws or for purposes prohibited under these laws, including the dissemination of nuclear, chemical or biological weaponry or the development of missile-related technology.
(2) The End User alone is responsible for compliance with the relevant export and import control laws and provisions as well as with the relevant trade sanctions and embargoes regarding the transfer of rights and the use of this Software.
Section 11: Term and Termination
Your rights arising from this Agreement end immediately and without notification on behalf of ECOS in the event of a material breach of contract or should You pursue a lawsuit to restrict the rights of ECOS and/or its Licensors to the Software. The Licensor or ECOS may terminate this Agreement if the Software becomes, or is likely to become according to the justified assessment of the Licensor or of ECOS, the matter of a lawsuit for Infringement of Intellectual Property Rights or the misappropriation of trade secrets. Following termination, You will cease to use the Software and erase it. The provisions of the sections pertaining to restrictions, property rights, confidentiality, warranty and liability limitations remain in effect following termination of this EULA.
Section 12: General Provisions
If a provision, or multiple provisions under this Agreement are declared invalid or unenforceable, the Parties declare for such invalidity or unenforceability to not affect the validity of the remaining provisions under this Agreement and that this Agreement be interpreted as such as if the invalid or unfeasible provision had not been included in the Agreement at any time.
This Agreement and any claims resulting from or in connection with this Agreement and objects of the Agreement are subject to German law and shall be interpreted accordingly. In the case of a collision between foreign law, its regulations and provisions and German law, its regulations and provisions, German law, its regulations and provisions take precedence over foreign law. The UN Sales Convention (CISG) does not apply to this Agreement.