Software License Agreement
This License Agreement applies to the rights of use of the Licensee (here: “LN” or “Licensee”) with regard to the software “ENVI-met” (here: “Software”) of ENVI-met GmbH, Essen (here: “ENVI-met”). The License Agreement does not govern additional services, such as customization, implementation, hosting, maintenance, etc. This License Agreement also does not apply to accompanying programs supplied with the Software; these are subject to the provisions of the license terms in the Appendix. General terms and conditions of the Licensee are excluded.
1. License – General Provisions
1.1 Unless otherwise provided in this License Agreement, ENVI-met grants the Licensee a non-exclusive, non-transferable and non-sublicensable right to use the Software for its own operational purposes within the restrictions specified in this License Agreement and/or as otherwise agreed (e.g. with regard to number of users), limited in time to the duration of the agreed subscription. Rights of use which are not expressly granted to the Licensee in this License Agreement shall remain with ENVI-met.
1.2 Generally, the Software can only be used by entering a registration key issued by ENVI-met, which is issued periodically (usually for one year). The Licensee may only use the registration key himself, must adequately protect it against unauthorized access by third parties and may not pass it on to unauthorized third parties. LN shall contact ENVI-met in good time before the end of the respective period for which the registration key has been issued in order to obtain a new registration key.
1.3 If the Licensee has been granted a license which contains a maximum number of users, the Licensee may only keep the Software installed on computers up to this defined number of users at the same time. If the licence granted to the Licensee contains a restriction to a specific data processing unit, installation and use shall only be permitted on this unit.
1.4 Unless otherwise agreed, Licensee may not duplicate the Software unless this is necessary to install or execute the Software. In particular, it is prohibited to copy the Software as part of an Application Service Providing (ASP), Software as a Service (SaaS) or a Cloud Computing concept without the separate permission of ENVI-met.
1.5 Unless expressly agreed otherwise, Licensee may not transfer the Software to third parties for permanent or temporary use. In particular, the Licensee is prohibited from renting, lending, selling, publicly reproducing or making publicly accessible the Software.
1.6 Licensee may not modify, decompile, disassemble, reverse engineer or otherwise modify the Software, unless this is expressly permitted by applicable law and ENVI-met has refused to grant such rights in such cases. The Licensee is prohibited from removing copyright notices, trademarks or other notices of existing copyrights or exclusive rights of use from the Software.
1.7 The Licensee is entitled to make a backup copy if and to the extent that he is entitled to use the Software in accordance with this License Agreement and the backup copy is required for securing future uses. This License Agreement also apply to backup copies.
1.8 All rights of use granted to Licensee are subject to full payment of the licence fees owed to ENVI-met for the corresponding Software for the respective period. Until full payment ENVI-met shall be free to revoke the rights of use – granted only provisionally until full payment – at any time without notice. ENVI-met also reserves the right to enforce compliance with the licensed rights of use (the existing restrictions) by means of technical security measures programmed into the Software (e.g. copy protection, necessary registration with a user account on an ENVI-met server via an Internet connection). In the event of a culpable violation of this License Agreement by LN, ENVI-met shall be entitled to terminate the licenses without notice, unless the violation and its consequences are only insignificant. Upon termination or revocation of a license, the license holder’s right to use the Software expires. Clause 8.2 shall apply accordingly.
1.9 All rights to the Software (e.g. patent rights, trademarks, copyrights and other intellectual property rights) and to all work results created by ENVI-met shall remain with ENVI-met and shall not be transferred to the Licensee by this License Agreement, unless expressly agreed otherwise. The Licensee has no claim to the release of the source code and/or the development documentation.
1.10 This License Agreement applies to all copies of the Software made by or on behalf of the Licensee, as well as to Software updates such as updates (which ensure the continuous usability of the existing functionality without including new functionality for the Software), upgrades (which provide – exclusively or additionally – new functionality for the Software), Patches (small software packages for the pure and partial only provisional elimination of errors in the Software) or releases (new consolidated Software versions in which the previous updates have been incorporated) which are supplied to LN by ENVI-met or, with ENVI-met’s consent, by a third party (irrespective of whether ENVI-met was obliged to such supply).
1.11 It is not permitted to offer pure calculation services using the Software. Pure calculation services are in particular simulation orders from customers of LN, which serve for the exclusive calculation and/or visualization.
1.12 Without the written consent of ENVI-met (e-mail is not sufficient), it is not permitted to integrate the Software into another technical analysis method or software and/or to use it in this context.
2. Special Conditions for Scientific Institutions (“Science” License)
2.1 By way of derogation from point 1, the following rules shall apply to Science licences:
2.1.1 If the Licensee has acquired a “Science” license, the Licensee may use the Software exclusively for purposes of scientific research and teaching. The use of the Software for projects financed by companies or otherwise commercially, which are carried out directly or indirectly with the intention of making a profit, is not permitted. All projects whose financing would be potentially available to other market participants are commercial.
2.1.2 Unless otherwise agreed, the license permits the Licensee to install the Software on up to 25 computers, but only within one department or research unit of the Licensee. The use in more than one department or research unit requires the acquisition of an additional “Science” license.
2.1.3 The “Science” license permits installation on computers accessible in public spaces as well as on computers of faculty members or students. Section 2.1.2, however, remains unaffected.
2.2 In all other respects, clause 1 remain unaffected.
3. Special Conditions for Students (“Student” License)
3.1 By way of derogation from clause 1 following rules shall apply to ‘student’ licences:
3.1.1 If the Licensee has acquired a “Student” license, the Licensee may use the Software exclusively for his own student and scientific purposes. The use of the Software for other purposes, in particular for those which are carried out directly or indirectly with the intention of making a profit, is not permitted.
3.1.2 Unless otherwise agreed, the license permits the Licensee to install the Software on his own computer as well as on a second private computer (e.g. laptop).
3.1.3 The use of the Software under the licence “Student” presupposes that LN proves to ENVI-met its capacity as a student of a recognised teaching or study institution in a suitable manner. The Licensee is obliged to do this no later than two weeks after acquiring the licence by sending a copy of an academic letter of confirmation or student ID to firstname.lastname@example.org.
3.1.4 The duration of the “Student” license is one year and the license cannot be renewed.
3.1.5 The right to use the “Student” license expires at the latest with the acquisition of a PhD or a comparable degree.
3.2 In all other respects, clause 1 remain unaffected.
4. Special Conditions for Trial Version (“Lite” license)
4.1 By way of derogation from point 1 following shall apply to licences of the “Lite” expression:
4.1.1 If the Licensee has not acquired a license subject to a fee, ENVI-met shall make the Software available free of charge in the “Lite” version until further notice.
4.1.2 The “Lite” Software may only be used for testing and evaluation purposes. Any commercial use is prohibited.
4.1.3 The use of the Software in the “Lite” version is – in this respect deviating from clause 6 – under exclusion of any warranty. ENVI-met shall be liable for the “Lite” Software – insofar in deviation from clause 8 – exclusively in cases of intent or gross negligence.
4.2 In all other respects, clause 1 remain unaffected.
Any information provided by either party to the other party in connection with the Software or the services to be provided under other agreements and expressly marked in writing as confidential or trade secret under the circumstances (hereinafter referred to as “Information”) shall be used solely for the purposes of this License Agreement and shall be protected by the recipient against unauthorized access in the same manner as the recipient treats its own confidential information in cases of equal or similar importance. In any case, however, information must be treated with due care. This information includes, but is not limited to, data, software, license keys, customer information, product and marketing information, product plans, designs, beta versions of the Software, and documentation. However, the obligation to maintain confidentiality or limited use of the Information does not apply to information (i) that is publicly available, (ii) to which such party has had access prior to disclosure, or (iii) that such party has obtained from third parties without any obligation to maintain confidentiality, or (iv) that such party has developed independently of such information. The Licensee acknowledges that the Software is the economically valuable property of ENVI-met, for whose design and development ENVI-met has incurred considerable investments and costs. Software and documentation shall also be regarded as information if they are not expressly marked as confidential in writing.
Excluded from this are those parts of the documentation that are made available under the Creative Commons license. These are subject to the respective License Agreement with which these components are identified.
6.1 ENVI-met does not provide any guarantee for the Software. A strict liability for defects existing at the conclusion of this License Agreement according to § 536a Abs. 1 BGB (German Civil Code – “Bürgerliches Gesetzbuch”) is excluded.
6.2 The Licensee is aware that it is technically impossible to create 100% error-free software.
6.3 Core features and limitations of the Software result from the service descriptions and documentation provided at http://www.envi-met.com and www.envi-met.info . The use of the Software requires a functioning Internet connection for which the Licensee is responsible.
6.4 The Licensee acknowledges that the operability of the Software may depend on the configuration of the Software by the Licensee and on the type of content developed or used. The Licensee further acknowledges that the use of the Software may require additional software (e.g. operating system, external database etc.; here: “Additional Software”). The Licensee is aware that ENVI-met may not make further software available. It is the exclusive responsibility of the Licensee to acquire suitable software licenses for the use of Additional Software.
6.5 The Licensee is solely responsible for determining whether the Software is suitable for the purposes pursued by the Licensee. ENVI-met does not warrant that the Software will satisfy special purposes of the Licensee which have not been expressly agreed.
6.6 The Licensee must examine the Software immediately upon receipt or download and test it for the essential basic functionalities. The Licensee shall notify ENVI-met immediately in writing of any faults or errors found (e-mail shall suffice in this respect). ENVI-met shall remedy the defects notified by the Licensee during the agreed period of use within a reasonable time after their notification.
6.7 Under no circumstances shall ENVI-met be liable for errors caused by non-observance of operating instructions, modification or extension of the Software or any other influence on functionality by the Licensee.
6.8 Otherwise, the statutory warranty rights shall apply.
7. Obligation to Back Up Data
The Licensee is obliged to back up his data used with the Software at regular intervals, but at least once per day of use, in sufficient form and thus to ensure that this data can be restored with justifiable effort.
8. Limitations of Liability
8.1 Claims for damages are excluded regardless of the type of breach of duty, including unlawful acts, unless intentional or negligent action is present.
8.2 In cases of simple negligence, ENVI-met shall only be liable in the event of a breach of such obligations which are intended to make the performance of this contract possible in the first place and on the observance of which the Licensee may regularly rely (here: “Cardinal Obligations”). In cases of simply negligent breach of Cardinal Obligations, ENVI-met’s liability shall be limited to the typically foreseeable damage.
8.3 In the event of loss of data, ENVI-met’s liability shall be limited (i) to the expenditure which would have been necessary to restore the data from a proper data backup and (ii) to the loss which has occurred due to the loss of current data which would also have been lost in the case of a proper data backup in the event of non-compliance with the Licensee’s obligation to back up data in accordance with Clause 7.
8.4 The limitations of liability and exclusions in this clause 8 do not apply to liability for guaranteed characteristics, for claims under the Product Liability Act (“Produkthaftungsgesetz”), for fraudulently concealed defects and for damages resulting from injury to life, limb or health.
8.5 Insofar as ENVI-met’s liability is excluded or limited, this shall also apply to employees, workers, representatives and vicarious agents of ENVI-met.
8.6 Unless expressly agreed otherwise or unless a mandatory statutory special rule for the limitation of warranty rights applies, claims for damages shall become statute-barred within one year of the event giving rise to liability. However, a shortening of the limitation period shall not apply in the special cases mentioned in clause 8.4 or in the case of intentional or grossly negligent action on the part of ENVI-met.
9. Third-Party Rights
9.1 If a third party asserts claims with regard to the Software against the Licensee, the Licensee shall immediately inform ENVI-met thereof in writing. The Licensee authorizes ENVI-met to defend against the assertion of these claims and/or to conclude a settlement at the discretion of ENVI-met. The Licensee shall provide ENVI-met with all information and support services necessary for the defence against the assertion of these claims and shall not enter into its own settlements with respect to the claims without the prior written consent of ENVI-met.
9.2 In no event shall ENVI-met be liable for such infringements of the rights of third parties resulting from (i) the Software being combined with products or software not supplied by ENVI-met or with the consent of ENVI-met and of which ENVI-met has not been expressly notified in writing, (ii) the Software being extended or modified by ENVI-met on the basis of instructions given by LN or other persons, (iii) the acts in question constitute infringements of this License Agreement or (iv) LN using an outdated version of the Software. However, liability shall not be excluded under this clause 9.2 if the Licensee can prove that the infringement is not due to one of the above measures.
10. Audit rights and license verification
10.1 ENVI-met shall be entitled to examine and monitor compliance with the licensed rights of use. The Licensee shall also provide ENVI-met with the necessary information.
10.2 For the purposes stated in clause 10.1, ENVI-met shall in particular be entitled at any time to check the validity of the license key provided to the Licensee by remote access to the Software. For this purpose, LN shall ensure that the Software is regularly connected to the Internet. ENVI-met reserves the right to make the use of the Software dependent on the positive Internet-based verification of proper licensing and to restrict the functionalities of the Software in the event of a missing Internet connection or detection of a license violation.
11. Term and Termination
11.1 This License Agreement is valid until the end of the agreed license term (subscription term) or until it is effectively terminated by a party for cause.
11.2 Licensee shall return or delete all embodiments of the Software, at ENVI-met’s option, at the latest upon expiry of the license term or upon termination for cause becoming effective. At ENVI-met’s request, Licensee shall confirm to ENVI-met in writing the complete return or deletion and/or provide evidence in an appropriate form.
12. Final Provisions
12.1 This License Agreement is subject to German substantive law with the exception of the provisions of the UN Convention on Contracts for the International Sale of Goods. The parties agree that the exclusive place of jurisdiction shall be Essen.
12.2 If a provision of this License Agreement is invalid or unenforceable, this shall not affect the validity of the License Agreement. The invalid or unenforceable provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid or unenforceable provision. This shall also apply mutatis mutandis in the event of a contractual gap.
12.3 This License Agreement together with the subscription cover all agreements between the parties with regard to the subject matter of the contract. Amendments to this License Agreement must be made in writing in the form of a document signed by both parties; this also applies to the amendment or waiver of this written form requirement.
Appendix: License Terms for Accompanying Programs:
Copyright (c) 2019
Permission is hereby granted, free of charge, to any person obtaining a copy of these accompanying programs and associated documentation files (the “Accompanying Programs”), to deal in the Accompanying Programs without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Accompanying Programs, and to permit persons to whom the Accompanying Programs are furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Accompanying Programs.
THE ACCOMPANYING PROGRAMS ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE ACCOMPANYING PROGRAMS OR THE USE OR OTHER DEALINGS IN THE ACCOMPANYING PROGRAMS.