END-USER SOFTWARE LICENSE AGREEMENT ("EULA")
IMPORTANT NOTE - READ CAREFULLY:
THIS END-USER SOFTWARE LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU, AS A
DESIGNATED SINGLE USER OR AS A REPRESENTATIVE IN THE NAME OF A COMPANY OR AN
ORGANIZATION, CALLED IN THE FOLLOWING THE SUB-LICENSEE AND THE PEPPERL+FUCHS SE
CALLED IN THE FOLLOWING THE SUB-LICENSER. BY INSTALLING AND/OR USING THE SOFTWARE,
YOU INDICATE YOUR ACCEPTANCE TO THE TERMS OF THIS AGREEMENT.
READ THE WHOLE AGREEMENT CAREFULLY BEFORE YOU CONTINUE TO INSTALL THE SOFTWARE.
BY INSTALLING AND/OR USING IT YOU AGREE TO BECOME BOUND BY THE TERMS OF THIS
AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS THEN DO NOT INSTALL AND/OR USE THE
SOFTWARE AND RETURN IT TO YOUR PLACE OF PURCHASE. IF YOU HAVE RECEIVED THE SOFTWARE
DUE TO A DOWNLOAD INSTEAD, DELETE ALL ALREADY DOWNLOADED DATA.
1. Preamble
Whereas the PACTware is software which is in the ownership of the PACTware
Consortium e.V. and protected by copyright and international copyright contracts.
Whereas Pepperl+Fuchs is a member of the PACTware Consortium e.V. and a Licensee
of the PACTware.
Whereas Pepperl+Fuchs is free to pass a compilation of the PACTware to any third
party under the terms and conditions of this EULA.
1. Definitions
Sub-Licenser: Pepperl+Fuchs SE, Lilienthalstrasse 200, D-68307 Mannheim,
GERMANY
Software: Is defined as Software program and the related media on which the
Software is stored and as far as such are matter of the contractual agreement
including the corresponding documentation, the electronic and online guidebooks
and finally printed material, supplied by Sub-Licenser. Software for purpose of
this Agreement covers also updates and upgrades that have been provided to you by
the Sub-Licenser.
Update: Software or a piece of it having the same, minor improved or corrected
functionality, mainly generated under the condition to resolve found software
problems. Update-Changes in the software are expressed by an increased minor digit
in the version number. Software updates are free of charge.
Upgrade: Software or a piece of it with an expanded and major improved
functionality typically generated at a time when old technology is discontinued
or a software generation jump is necessary in general.
Upgrade-Changes in the software are expressed by an increased major digit in the
version number. Software upgrades require a new fee and a new License Key.
2. Subject matter of the Agreement
2.1 The Sub-Licensee is provided with the Software specified in the offer of
contract or oftware product certificate/specifications on a data carrier or by
making the Software available for download on the Internet. A printed version of
the user documentation is not automatically part of the Software except it is
expressly a part in the offer of contract and in the scope of delivery.
2.2 All PACTware which is embodied in human readable source or machine readable
object form and which includes, but is not limited to, programs having a series
of instructions, statements and data and related materials provided by the PACTware
Consortium is the property of the PACTware Consortium and subject to the terms set
force in this license in which the Sub-Licensee is provided solely with a personal
and non exclusive license to use the PACTware for its internal business purposes
in the country in which the software was furnished and for the execution on the
system for with which it was provided.
2.3 A Service Contract for the Software is not due and remains subject of a
separate Agreement with the Sub-Licenser.
3. Grant of License
3.1 The Sub-Licenser grants the Sub-Licensee a non exclusive, non transferable
license for the whole world to use PACTware under these terms and PACTware may be
installed and used on more than one workstation the same time.
3.2 The Sub-Licensee can also use PACTware in the memory unit of an internal
network
4. License Restrictions
4.1 The Sub-Licensee may not change, alter or enhance any parts of the licensed
Software.
4.2 The Sub-Licensee is not entitled to de-compile, disassemble or otherwise
reverse engineer any of the licensed Software, in whole or in parts or attempt to
access or derive the source code of the Software or any algorithms, concepts,
techniques, methods or processes embodies therein.
5. Infringement of Licences
5.1 In the event of violation of the provisions of article 4 by the Sub-Licensee,
by his legal representative or vicarious agents all claims for damages are reserved
and the violator may be held legally and financially liable for any further damages
resulting from the violation of the agreement while this agreement was in effect.
5.2 In the event that any material part of the Software becomes subject of a
valid third party claim of copyright, patent or other proprietary right
infringement, the Sub-Licenser shall, at its option, either (i) replace the
Software with a compatible, functionally equivalent, non infringing software
product; (ii) modify the Software or take some other action so that it is no longer
infringing; (iii) procure the right for the Sub-Licensee to continue using the
Software; or (iv) if, in the sole discretion of the Sub-Licenser, none of the
foregoing alternatives is reasonably available, terminate this License.
5.3 The foregoing states the entire liability of the Licenser with respect to
claims for copyright or patent infringement and except as provided in this section
Sub-Licenser shall have no liability to Sub-Licensee whatsoever for any loss or
damage or infringement claims against Sub-Licensee by third parties arising out
or related to any allegation or determination that Sub-Licensee's use of the
Software infringes any proprietary or intellectual property right.
5.4 In this case, the Sub-Licensee undertakes to return to the Sub-Licenser all
software including all accompanying material, to destroy all copies and to remove
any software installed on workstations.
6. Ownership and Intellectual Property Rights, passing of risk
6.1 The foregoing license gives the Sub-Licensee the limited license just to use
the Software.
6.2 All title and interest to, and intellectual property rights in, the licensed
materials and any related documents are and shall remain owned and/or controlled
solely and exclusively by the PACTware Consortium e.V. The PACTware Consortium e.V.
reserves all rights in the licensed materials not specifically granted to the
Sub-Licensee under this EULA, including Federal and International Copyright.
6.3 Passing of the risk between Sub-Licenser and Sub-Licensee for the Software
begins to run at the time the Software leaves the Sub-Licenser's sphere of influence
e.g. the data carrier on which the software is stored was dispatched or the Software
has left the server holding the software and the download has been done from.
7. Exclusion of Warranty and Disclaimer
7.1 The Sub-Licensee expressly acknowledges and agrees that he is installing and
using the licensed materials at his own sole risk. The Sub-Licenser and the PACTware
Consortium e.V. provides no remedies or warranties, whether express or implied,
for
the licensed materials. It is provided "as is" without warranty, term or condition
of any kind unless otherwise agreed to in this contract.
7.2 The Sub-Licenser and the PACTware Consortium e.V. disclaim all warranties
whether express, implied or otherwise, including the warranties of merchantability
or fitness for a particular purpose. Also the Sub-Licenser and the PACTware
Consortium e.V.
do not warrant that the Software is error-free or will operate without interruption.
7.3 No oral or written information or advice given by the Sub-Licenser, its
dealers, distributors, agents or employees shall create a warranty or in any way
increase the scope of any warranty provided herein.
8. Limitation of Liability
8.1 The maximum aggregate liability of the Sub-Licenser and the PACTware
Consortium e.V or its officers, directors, employees, agents, distributors and
resellers under these licenses for all losses or damages, expenses or injuries
either direct, indirect, incidental or otherwise, arsing out of the breach of any
express or implied warranty, term or condition, breach of contract, tort, statue
or any other legal theory arsing out of, or related to, this agreement or your use
of any of the licensed materials shall be limited to the license fee paid by the
Sub-Licensee hereunder. As the licence under this agreement is granted free of
charge there is no liability.
In no event shall Sub-Licenser be liable to Sub-Licensee or any third Party for
(a) loss of profits, loss of revenue, (b) indirect, incidental or consequential
losses even if advised of the possibility of such (c) loss of data and loss of use
of the product or any associated equipment down time.
8.2 The limitation of liability does not apply when the Sub-Licenser or the
PACTware Consortium e.V is liable for intentional breach of duty or gross negligence
on the part of his legal representative or other vicarious agents, regardless of
the legal ground and according to the statutory regulations as provided in the
Product Liability Act.
8.3 No action or proceeding relating to this license may be commenced by
Sub-Licensee more than one year after the cause of action arises.
9. Damages arising out of the Sub-Licensee actions
The Sub-Licensee is liable for and shall defend and hold the Sub-Licenser and the
PACTware Consortium e.V. harmless from and against any and all liabilities,
damages, costs, expenses or losses arising out of his use of the licensed materials,
his negligent or wrongful acts, his violation of any applicable laws or regulations,
and/or his breach of any provision of this EULA. Particularly defects in the
Software have to be indicated to the Sub-Licenser immediately after the defect has
been noticed to prevent anyone from harm.
10. Fees and payment terms
The license is granted free of charge
11. Term and termination
The License in this Agreement is granted without time limit. The Sub-Licenser may
terminate this agreement at any time at his own discretion in the event of a material
breach of the terms and conditions of this agreement by the Sub-Licensee by a written
notice of termination to the Sub-Licensee. Upon termination of this agreement for
any reason the sections 1. Definitions, 7. Exclusion of Warranty and Disclaimer,
8. Limitation of Liability, 9. Damages arising out of the Sub-Licensee actions,
12.
Governing Law and place of jurisdiction, 13. Severability, 15. No Assignment remain
in effect. In case of termination the Sub-Licensee has to delete the Software from
his workstations. In case of termination for Sub-Licensees material breach of the
Agreement all other rights of the Sub-Licenser remain reserved.
12. Governing Law and place of jurisdiction
The validity, interpretation and legal effect of this EULA shall be governed by,
and construed in accordance with, the laws of the Federal Republic of Germany. The
courts of Mannheim, Germany shall have sole jurisdiction of any controversies
regarding this agreement. Any action or other proceeding which involves such a
controversy shall be brought in those courts in Mannheim and not elsewhere.
13. Severability
13.1 Should any provision of this Agreement be determined to be overly broad,
ambiguous or otherwise unenforceable, such provision shall be redrafted in order
to narrow its scope to the extent necessary to make the provision reasonable and
enforceable. If the scope of the provision cannot be narrowed to such an extent
that the provision will become enforceable, such provision shall be severed from
this Agreement.
13.2 In all cases the remainder of the Agreement shall continue in full force
and effect.
14. Written Form
This Agreement may not be modified or amended except by written amendments duly
executed by the Sub-Licenser and the Sub-Licensee. The requirement of written form
can only be waived in written form.
15. No Assignment
This Agreement and any rights hereof may not be assigned by the Sub-Licensee without
the prior written consent of the Sub-Licenser unless otherwise provided in this
Agreement.