Marxmeier Software AG
Software License Terms and Limited Warranty Statement
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USE OF THIS SOFTWARE IS SUBJECT TO THE MARXMEIER SOFTWARE AG
(Marxmeier) SOFTWARE LICENSE TERMS AND THE WARRANTY STATEMENT SET
FORTH BELOW. YOU SHOULD READ ALL THE TERMS OF THIS AGREEMENT
CAREFULLY BEFORE YOU USE THE SOFTWARE.
BY CLICKING THE ACCEPTANCE BUTTON, REQUESTING A PERMANENT LICENSE OR
INSTALLING THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY AND ARE
BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE
TERMS OF THIS AGREEMENT DO NOT INSTALL THE SOFTWARE.
1. DEFINITIONS
a. "Software" means the described software programs and any
accompanying instructions, commercially available
documentation, technical data, images, recordings, and other
related materials.
b. "Use" means storing, loading, installing, executing, or
displaying the Software on a device.
c. "Products" means Software, documentation, accessories,
supplies, parts and upgrades that are determined by
Marxmeier to be available from Marxmeier upon receipt of
Customer's order.
d. "Software License" means the Software license grant and
general license terms set forth herein. Each Software
License has a corresponding License Fee.
e. "License Fee" means the fee or fees designated by Marxmeier
for Use of Software at the time this Agreement is entered into.
2. LICENSE GRANT
a. In return for the applicable License Fee, Marxmeier grants
Customer a non-exclusive, non-transferable, limited
worldwide license to Use the object code version of the
Software solely for the Customer's own internal business
purposes on one computer or device, or on the class or
series of equipment, for which you have paid the
corresponding License Fee. If no fee is required, you may
use the Software on one computer or device at any one time.
If the Software is licensed for concurrent or network use,
you may not allow more than the maximum number of authorized
users to access and use the software concurrently.
b. All Software Licenses will be perpetual unless terminated or
transferred in accordance with section 3.g.
c. If Customer is a Marxmeier authorized reseller, Customer may
sublicense the Software to an end-user for its Use or (if
applicable) sublicense the Software to a Marxmeier
authorized reseller for subsequent distribution to an
end-user for its Use. These sublicenses must incorporate the
terms of this Software License in a written sublicense
agreement, which will be made available to Marxmeier upon
request. If Customer is not a Marxmeier authorized reseller,
Customer may not sublicense the Software unless otherwise
agreed to by Marxmeier in writing.
d. Marxmeier, or its designee(s), shall, during regular
business hours at Customer's offices and in such a manner
that does not interfere with Customer's normal business
activities, have the right to inspect and audit, or have an
inspection and audit, of the number of copies of Software
Used or distributed by Customer, the computers on which the
Software, if any, is installed and the number of users Using
any such Software. If any audit discloses underpayments of
five percent (5%) or more of the amount of License Fees
Customer should have actually paid to Marxmeier, Customer
shall bear all of the costs of the audit. Marxmeier's audit
rights shall not terminate or expire until three (3) years
after termination or expiration of this Agreement.
3. GENERAL LICENSE TERMS
a. Software is owned and copyrighted by Marxmeier or by third
party suppliers. Customer's Software License confers no
title or ownership and is not a sale of any rights in the
Software. Third party suppliers are intended beneficiaries
under this Agreement and may protect their rights in the
Software directly against the Customer in the event of any
infringement.
b. Customer may only make copies or adaptations of the Software
for archival purposes or when copying or adaptation is an
essential step in the authorized Use of the Software on a
backup computer or device, provided that copies and
adaptations are used in no other manner and provided further
that the Use on the backup computer or device is
discontinued when the original or replacement computer or
device becomes operable.
c. Customer must reproduce all copyright notices and other
proprietary legends in or on the original Software on all
permitted copies or adaptations. You may not remove from the
Software, or alter, any of the Marxmeier trademarks, trade
names, logos, patent or copyright notices or markings, or
add any other notices or markings to the Software. Customer
may not copy the Software onto any public or distributed
network.
d. This license does not entitle you to receive upgrades,
updates or technical support. Such services may be purchased
separately under Marxmeier Support agreements. Marxmeier
reserves the right to require additional licenses and fees
for Use of the Software on a different computer or device,
or on the class or series of equipment.
e. Customer will not modify, disassemble, decompile, reverse
engineer, create or make any derivative works or otherwise
attempt to access or determine or permit or help others to
derive or determine or duplicate the source code of the
Software without Marxmeier's prior written consent. Where
Customer has other rights under statute, Customer will
provide Marxmeier with reasonably detailed information
regarding any intended disassembly or decompilation.
Customer will not decrypt the Software unless necessary for
legitimate use of the Software.
f. Customer's Software License is transferable only upon
Marxmeier's prior written authorization and payment to
Marxmeier of any applicable fee(s). Upon transfer of the
Software License, Customer will immediately deliver all
copies of the Software to the transferee. The transferee
must agree in writing to the terms of Customer's Software
License. All Software License terms will be binding on
involuntary transferees, notice of which is hereby given.
Any transfer of the Software by the Customer in accordance
with the provisions of this Section 3.f shall not relieve
Customer of any liability for the performance of Customer's
obligations under this Agreement. Customer's right to Use
the Software will automatically terminate upon any such
transfer.
g. Marxmeier may terminate Customer's or any transferee's or
sublicensee's Software License upon notice for failure to
comply with any applicable Software License terms.
Immediately upon termination, the Software and all copies of
the Software will be destroyed or returned to Marxmeier.
Customer shall remove, destroy or return to Marxmeier all
copies of the Software that are merged into adaptations,
except for individual pieces of data in Customer's or
transferee's or sublicensee's database. With Marxmeier's
prior written consent, one copy of the Software may be
retained subsequent to termination for archival purposes.
h. In the following provision regarding Software Licenses to
the U.S. Government, the term "Customer" means Marxmeier's
direct purchaser, any entity or individual sublicensing the
Software, and the end-user.
1. If Software is licensed for use in the performance of
a U.S government prime contract or subcontract,
Customer agrees that Software has been developed
entirely at private expense. Customer agrees that
Software, and any derivatives or modifications, is
adequately marked when the Restricted Rights Legend
below is affixed to the Software or to its storage
media and is perceptible directly or with the aid of a
machine or device. Customer agrees to conspicuously
put the following legend on the Software media with
Customer's name and address added below the notice:
RESTRICTED RIGHTS LEGEND
Use, duplication or disclosure is subject to Marxmeier
Software AG standard commercial license terms and for
non-DOD Departments and Agencies of the U.S.
Government, the restrictions as set forth in FAR
52.227-19(c)(1-2)(Jun 1987).
Marxmeier Software AG
Kasinostrasse 19-21
42103 Wuppertal
Germany
Copyright (c) 2002-2006 Marxmeier Software AG
All Rights Reserved
2. Customer further agrees that Software is delivered and
licensed as "Commercial computer software" as defined
in DFARS 252.227-7014 (Jun 1995) or as a "commercial
item" as defined in FAR 2.101(a), or as "Restricted
computer software" as defined in FAR 52.227-19 (Jun
1987) (or any equivalent agency regulation or contract
clause), whichever is applicable. The Customer agrees
that it has only those rights provided for such
Software by the applicable FAR or DFARS clause or the
Marxmeier standard software agreement for the product
involved.
4. GENERAL
a. Prohibition of assignment of claims
Customer may not assign or transfer this Agreement or any
rights or obligations hereunder without prior written consent
of Marxmeier. Any such attempted assignment or transfer will
be null and void. Marxmeier may terminate this Agreement in
the event of any such attempted assignment or transfer.
b. Export Requirements
You may not export or re-export this software or any copy or
adaptation in violation of any applicable laws or regulations.
Without limiting the generality of the foregoing, software,
technology or services provided under this license agreement
may not be exported, re-exported, transferred or downloaded
to or within (or to a national resident of) countries under
U.S. economic embargo including the following countries:
Afghanistan (Taliban-controlled areas), Cuba, Iran, Iraq,
Libya, North Korea, Sudan and Syria. This list is subject to
change.
Software, technology or services may not be exported,
re-exported, transferred or downloaded to persons or
entities listed on the U.S. Department of Commerce Denied
Persons List, Entity List of proliferation concern or on any
U.S. Treasury Department Designated Nationals exclusion
list, or to parties directly or indirectly involved in the
development or production of nuclear, chemical, biological
weapons or in missile technology programs as specified in
the U.S. Export Administration Regulations (15 CFR 744).
By accepting this license agreement you confirm that you are
not located in (or a national resident of) any country under
U.S. economic embargo, not identified on any U.S. Department
of Commerce Denied Persons List, Entity List or Treasury
Department Designated Nationals exclusion list, and not
directly or indirectly involved in the development or
production of nuclear, chemical, biological weapons or in
missile technology programs as specified in the U.S. Export
Administration Regulations.
c. Place of performance/venue/applicable law
Place of performance is Wuppertal/Germany. In cases of
dispute for all matters relating to this License,
Wuppertal/Germany is agreed to be the exclusive juridical
venue in the commercial connections with merchants. In
cases of dispute German law shall be valid. The United Nations
Convention on Contracts for the International Sale of Goods is
specifically disclaimed.
d. Severability
If any term or provision herein is determined to be illegal or
unenforceable, the validity or enforceability of the remainder
of the terms or provisions herein will remain in full force
and effect. Failure or delay in enforcing any right or provision
of this Agreement shall not be deemed a waiver of such right or
provision with respect to any subsequent breach. Provisions
herein which by their nature extend beyond the termination of
any license of Software will remain in effect until fulfilled.
e. Entire Agreement
This Agreement is the final, complete and exclusive agreement
between the parties relating to the subject matter hereof, and
supersedes any previous communications, representations or
agreements between the parties, whether oral or written,
regarding transactions hereunder. Customer's additional or
different terms and conditions will not apply. These Marxmeier
Software License Terms may not be changed except by an amendment
signed by an authorized representative of each party.
f. Exclusion
No action or claim relating to this License may be instituted
more than one (1) year after the event giving rise to such
action or claim.
g. Force majeure
Neither party shall be responsible for or in default or
otherwise liable for any delay or failure to comply with the
performance of the terms of this Agreement where such failure
or delay is directly or indirectly caused by or in any manner
arises or results from events beyond the control of the party
sought to be charged. Such events shall include but not be
limited to any act of God, any acts of the common enemy, the
elements, earthquakes, floods, fires epidemics, riots, acts of
terrorism, failure or delay in transportation or communication.
The parties will promptly inform and consult with each other
as to any of the above causes which in their judgment may or
could be the cause of a delay in the performance of this
Agreement. The time for performance hereunder shall be extended
by a period of time equal to the time lost because of any such
delay.
h. Arbitration clause
All disputes arising out of or in connection with the
contractual relationship between the parties or concerning its
validity or the validity of the License Terms shall be finally
settled, excluding the jurisdiction of the ordinary courts, by
arbitration. The arbitral proceedings shall be carried out
according to the arbitration rules of the WIPO (World
Intellectual Property Organization), Geneva, Switzerland. The
arbitral tribunal shall apply German substantive law. งง 1025 ff.
of the Code of Civil Procedure of the Federal Republic of Germany
shall be applicable supplementing the arbitration rules.
5. LIMITED WARRANTY STATEMENT
Marxmeier SOFTWARE PRODUCT LIMITED WARRANTY
Scope
This limited warranty is limited to the Marxmeier owned software
portion of the Marxmeier software product ("Software"). The
warranty for any other software portion of the Marxmeier software
product ("Third Party Software"), if any, shall be governed by the
warranty terms provided with the Third Party Software. Marxmeier
specifically disclaims any guarantee for third party software.
Software Limited Warranty
Marxmeier warrants for a period of NINETY (90) days from the date
of purchase that the Software will not fail to execute its
programming instructions, due to defects in material and workmanship
when properly installed and used in compliance with the terms and
conditions of this Software License Agreement.
If Marxmeier receives notice of such defects during the warranty
period, Marxmeier will replace Software that does not execute its
programming instructions due to such defects.
Neither Marxmeier nor its authorized reseller warrant that the
operation of Software will be uninterrupted or error free. If
Marxmeier is unable, within a reasonable time, to repair or
replace any product to a condition as warranted, you will be
entitled to a refund of the purchase price upon prompt return of
the product.
Exclusions
This limited warranty does not apply to defects resulting from
(a) improper or inadequate maintenance, (b) unauthorized
modification or misuse, or (c) operation outside of the published
environmental specifications for the product or otherwise in an
unclean environment.
Disclaimer
TO THE EXTENT ALLOWED BY LOCAL LAW, THE ABOVE WARRANTIES ARE
EXCLUSIVE AND NO OTHER WARRANTY OR CONDITION, WHETHER WRITTEN OR
ORAL, IS EXPRESSED OR IMPLIED. MARXMEIER SOFTWARE AG AND ITS
AUTHORIZED RESELLERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES
OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY,
NON-INFRINGEMENT, TITLE, ACCURACY OF INFORMATIONAL CONTENT, AND
FITNESS FOR A PARTICULAR PURPOSE. NEITHER MARXMEIER SOFTWARE AG
NOR ITS AUTHORIZED RESELLERS WARRANT THAT THE FUNCTIONS CONTAINED
IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS. THE ENTIRE RISK AS
TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MARXMEIER OR
MARXMEIER'S AUTHORIZED REPRESENTATIVES OR RESELLERS SHALL CREATE
A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
Some jurisdictions do not allow limitations on the duration of an
implied warranty, so the above limitation or exclusion might not
apply to you to the extent prohibited by such local laws. This
warranty gives you specific legal rights and you might also have
other rights that vary from country to country, state to state,
or province to province.
6. Limitation of Liability
TO THE EXTENT ALLOWED BY LOCAL LAW, THE REMEDIES IN THIS WARRANTY
STATEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. EXCEPT TO THE
EXTENT PROHIBITED BY LOCAL LAW, IN NO EVENT WILL MARXMEIER OR ITS
SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS,
SUPPLIERS, CONTRACTORS, SUBCONTRACTORS, LICENSEES OR AUTHORIZED
RESELLERS BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL,
PUNITIVE, OR OTHER DAMAGES (INCLUDING LOST PROFIT, LOST DATA, OR
DOWNTIME COSTS) ARISING OUT OF THE USE, INABILITY TO USE, OR THE
RESULTS OF USE OF THE SOFTWARE, WHETHER BASED IN WARRANTY,
CONTRACT, TORT OR OTHER LEGAL THEORY, AND WHETHER OR NOT MARXMEIER
OR ITS AUTHORIZED RESELLER WAS ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
Marxmeier shall be liable for damage caused intentionally or by
gross negligence. Marxmeier shall also be liable for explicitly
guaranteed Product properties and as well for slight negligence
relating to substantive contractual obligations, also with regard
to vicarious agents. In the event of slight negligence, the
liability shall be limited to foreseeable damages. Any liability
shall be excluded in the event that the client does not make use
of error corrections Marxmeier has published on its web site and
made available for download. The customer shall be responsible to
explore available error corrections at regular intervals and
integrate such error corrections in its environment without delay.
Marxmeier shall not be liable for the recovery of data, unless
Marxmeier has caused its destruction wilfully or by gross
negligence and the contracting party has ensured that the data may
be reconstructed from data material provided in a machine-readable
form with a reasonable effort.
In case of slight negligence the liability shall be limited to EUR
100,000. The customer may request at its own expense that
Marxmeier takes out an individual liability insurance beyond the
aforementioned limit.
ANY AND ALL WARRANTIES SHALL BECOME NULL AND VOID IF AT ANY TIME
THE CUSTOMER ALTERS THE COMPUTER CODE OR BYPASSES, CIRCUMVENTS OR
OTHERWISE VIOLATES THE DOCUMENTED PROCEDURES FOR USING THE SOFTWARE.
HIGH RISK ACTIVITIES
The Customer acknowledges and understands that Marxmeier has not
designed the Software to be fault-tolerant, nor is it designed,
manufactured or intended for use or resale as on-line control
equipment in environments which are considered hazardous requiring
fail-safe performance, including but not limited to the operation
of nuclear facilities, aircraft navigation or communication systems,
air traffic control, direct life support machines, or weapon systems,
in which the failure of the Software could lead directly to death,
personal injury, or serve physical or environmental damage
("High Risk Activities"). Accordingly, Marxmeier and its authorized
resellers specifically disclaim any express or implied warranty of
fitness for High Risk Activities.
Note
EXCEPT TO THE EXTENT ALLOWED BY LOCAL LAW, THESE WARRANTY TERMS DO
NOT EXCLUDE, RESTRICT OR MODIFY, AND ARE IN ADDITION TO, THE
MANDATORY STATUTORY RIGHTS APPLICABLE TO THE LICENSE OF THE SOFTWARE
TO YOU; PROVIDED, HOWEVER, THAT THE CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS IS SPECIFICALLY DISCLAIMED AND SHALL NOT
GOVERN OR APPLY TO THE SOFTWARE PROVIDED IN CONNECTION WITH THIS
WARRANTY STATEMENT.
IF YOU AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT CLICK "I
AGREE TO THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE" BUTTON ON
THE PRODUCT REGISTRATION PAGE BEFORE YOU BEGIN DOWNLOADING THE SOFTWARE.
IF YOU RECEIVE THE SOFTWARE IN ANOTHER WAY YOU AGREE TO BE BOUND BY ALL
THESE TERMS WHEN REQUESTING A PERMANENT LICENSE KEY OR INSTALLING THE
SOFTWARE.
Revision 2, 1. August 2005