HIGHTEC EDV-SYSTEME END-USER LICENSE AND MAINTENANCE AGREEMENT (EULA)
IMPORTANT - READ CAREFULLY
This HighTec EDV-Systeme GmbH (hereinafter referred to as "HighTec") End-User License And Maintenance Agreement (hereinafter also referred to as "EULA") is a legal agreement between an individual person or a legal entity (hereinafter referred to as "Customer") and HighTec on the use of software and accessories developed and supplied by HighTec (hereinafter referred to as "Software"). By installing or using or registering to use the Software, Customer agrees to be bound by the provisions set down in this agreement. If Customer does not agree to these terms, he is not permitted to use the Software.
HighTec and their suppliers are the owners of any intellectual property rights in the software supplied hereunder. HighTec permits Customer to download, install, use and otherwise benefit from the Software in strict accordance with the provisions of this agreement. The use of third-party software, materials and services such as Open Source (e.g. GPL) based software included in or accessed in connection with the software might be subject to the Terms and Conditions of the respective third parties. The third-party software, materials and services are displayed in the information screen of the respective Software or identified by HighTec on request of Customer at any time.
The Software is fitted with product activation procedures (license manager) designed to prevent unauthorized use. Any attempt to circumvent the restrictions on unauthorized use shall result in the immediate termination of this agreement and loss of any rights of use on the part of Customer. In such a case, further use of the Software is liable to copyright infringement and further legal claims.
The Software is licensed, not sold, to the Customer. In accepting this agreement, Customer acknowledges that the Software remains the sole property of HighTec and/or their licensors. Nothing contained in this agreement will be construed as granting any ownership to Customer.
2 License types
The following license types are available:
2.1 Node-locked License - This is the most basic license type. It is granted for either a fixed or an unlimited number of licenses. The licenses are tied to the host-IDs of the computers where the Software is installed and used. A Node-locked License can have a version number, an expiration date, and other specific attributes.
2.2 Temporary (Short Term) License - This license restricts the use of the Software to a predefined period of time (6 months or less).
2.3 Floating (Floating-cached) License - Due to its not being tied to specific host-IDs, this license allows the use of the Software on the network at a single site, as long as the maximum number of purchased licenses (license seats) is not exceeded. The License Server handles the license grants via the network.
2.4 Time-zone-based License - This license restricts the use of the Software to one or more time zones. This is a legacy license type.
2.5 Country-based License - This multi-user license restricts the use of the Software to one or more sites within a specified country by a specified number of users.
2.6 Global License - This multi-user license permits the use of the Software anywhere in the world by a specified number of users.
2.7 Roaming - With this license type, users running licensed applications on their company network can disconnect from the network and take their licenses with them for working from home or in the field. Licenses that are thus "checked out" expire after a predetermined number of days or weeks, or can be returned to the license pool at the company network.
2.8 Evaluation License, Complimentary License, Free Entry Version License
This license is for non-commercial purposes of the product and furnished with an expiry date. Licensee agrees to use any Software provided to Licensee as an Evaluation only for the period until the license expiration, only to evaluate it individually for potential purchase of a license to the Software as an end-user, to conduct no business with it, to remove it and all result files produced from any of Licensee's Computers at the end of the trial evaluation period and to comply with all other obligations and restrictions in this Agreement.ˇAny result files may not be used to link with result files from Licensed Software, and not used in any way in User Products. Licensee agrees to use any Software awarded to Licensee on a complimentary basis for student engineering competitions and similar competitions, course support, research, fellowship participation, and teaching assistance only for the specific purpose and period of the award, to conduct no business with it, and to comply with all other obligations and restrictions in the award letter and in this Agreement.
2.9 Build Server License - License on a central computer system (such as, but not limited to, a Jenkins/Hudson server), shared (used) by other systems, automated processes or users.
2.10 Remote License - License right, explicitly granted additionally to a node-locked license, for accessing the Software over a remote (desktop) connection.
2.11 Cloud (Server) Based License - License that is served from a license server that is hosted on a computer system publicly accessible on the Internet. Generally, such server or system is managed by HighTec.
2.12 Subscription Based License - Time-based license, usually with a global use scope, which includes Product Maintenance and Support for the same.
3 Terms of License
Upon payment of the applicable license fees, HighTec hereby grants to Customer the non-exclusive, non-transferable right to:
a) use the Software, solely for the design, simulation, implementation and manufacture of User Products (Developing License);
b) In case the Customer is developing own products by the means of or running under runtime environments or parts thereof, e.g. runtime libraries of HighTec, or e.g. PXROS-HR, a runtime license is required in User Products (Distribution License) for each core of a processor/micro controller which references functions
of the runtime library.
Such Distribution License may be granted a) as license per deployed processor core in the User Product (payable annually or quarterly); b) against flat-fee payment for a definite time for a certain User Product or User Product line and independent from the number of User Product units; or c) unlimited in time, number of deployed processor cores or number of User Product units against payment of a lump-sum ("Buy-out").
3.1 Customer is permitted to make one backup copy of the Software for archiving purposes, which may only be installed in cases where the original copy of the Software is lost, corrupted or made unavailable in any way other than by use or possession by another person.
3.2 If Customer has purchased more than a single license, then this EULA allows the simultaneous use of the Software by several persons employed by Customer or hired as contractors (provided that such contractors oblige themselves in writing to observe the confidentiality obligations as per 7. of this Agreement). In doing so, the number of persons having access to and/or using the Software may not exceed the overall number of purchased licenses at any time. Customer understands and agrees that any use beyond the licensed number shall constitute not only breach of this EULA, but also a violation of national and international copyright and patent laws.
4 Further Restrictions on Use, Disclosure; Third-Party License Rights
4.1 License, Not Sale. The Software is licensed, not sold, to Customer. The Software is supplied by HighTec solely for the use at the designated location, identified on the Customer's purchase order. In no event shall Customer be permitted to sell, license or otherwise commercialize the Software as stand-alone products.
4.2 No Unattended Automated Use. ˇCustomer may not create a server or automated system for the Software without obtaining a license that expressly allows such use (Build Server License). Without express consent from HighTec, the Software may not be used:
a) in an automated, batched, or unattended process for software development, validation, verification, deployment, or report generation (e.g., server farm, cluster, grid, build system, continuous integration system, regression server, or data center), or
b) by an individual acting as a server or automated system for processing the artifacts of other individuals.
4.3 License Use in a Virtual Machine. The Software license and/or the license server may be usedˇin a virtualized environment, in accordance with the license type use rights and express consent from HighTec.
4.4 Source Code Availability. Parts of the Software (the HighTec compiler toolchain in particular) contain Open Source components (e.g. based on GPL). For these parts, the source code can be delivered to the Customer on request against a handling fee. This offer is valid for a period of three years after the official release of the HighTec Software.
4.5 No Assignment or Sharing. In no event shall Customer disclose, transfer, assign, publish, distribute, rent, lease or in any other way make Software available to third parties without the prior written consent by HighTec.
4.6 No Reverse Engineering. Customer understands and agrees that in no event shall he make unauthorized copies of, decompile, reverse engineer, disassemble, modify, or otherwise reduce the Software or any portion thereof to a form perceivable by a human reader, or disclose to any third person any portion of the Software in such a form. The right to decompile the Licensed Product granted to Customer is only granted under the terms of sec. 69 e para. (1) nos. 1 to 3 UrhG and within the limits of sec. 69 e para. (2) nos. 1 to 3 UrhG.
4.7 Restrictions on Disclosure. Customer may not provide, disclose or in any other way make available to others, including but not limited to Customer's affiliates, subsidiaries or divisions (unless Customer has licensed the Software in a way that permits such use) or any third parties, any of the Software without the prior written permission of HighTec. In the event that Customer hires or engages any contractor for the purpose of assistance with the installation, implementation or other use of the Software at the Customer's premises, Customer shall first establish the fact that said contractor is not employed or engaged by any direct competitor of HighTec, and in the event such contractor is so employed or engaged, Customer shall in no event give such person access to the Software; in the event such contractor is not employed or engaged by a direct competitor of HighTec, Customer shall ensure that such contractor has signed before obtaining access to the Software an appropriate confidentiality declaration that protects the Software in a manner consistent with the confidentiality and other provisions in this EULA.
4.8 Third-Party Licenses. The rights granted in the scope of this agreement only relate to Software developed by HighTec. Customer understands and agrees, that the Software may contain software and/or other intellectual property rights owned by third parties and that it is not HighTec's obligation or responsibility to determine what, if any, third party licenses Customer has to obtain in connection with the third party software, in case Customer should decide to exploit the Software beyond the scope of the License granted to him by HighTec and Customer agrees to indemnify, defend and hold harmless HighTec and HighTec's officers, directors, employees, subsidiaries, affiliates and distributors from any liability, including but not limited to attorneys' fees and experts' fees associated in any way with Customer's failure to obtain or properly maintain any such required third party licenses.
4.9 Limit on Applications. The Software is no consumer product and is designed to be used by trained professionals for professional purposes exclusively. The Software is not intended for use in connection with armaments or weapons. Due to the large variety of applications for the Software, it has not been tested in all situations where it might be used. HighTec shall not be liable in any way for the results obtained by Customer through use of the Software. Customer agrees that he is responsible for any decisions regarding the use or way of use of the Software and for the results thereof. Customer agrees to indemnify, defend and hold harmless HighTec and its officers, directors, employees and agents from any third-party claims arising out of decisions by Customer to use or test the Software and out of any results from such use or testing by Customer.
4.10 Compliance Certification. During the term of this Agreement, HighTec shall have the right to request that Customer provides within thirty (30) days after receipt of HighTec's written request, documentation and certification of the use of the Software in complete compliance with this EULA's terms and conditions.
Only upon payment in full of the maintenance fees set forth in the Customer Purchase Order, HighTec shall provide maintenance service for the Licensed Software to Customer solely upon the terms set forth in this Section for an initial one (1) year term ("Maintenance Term") beginning on the date of the last signature of this Agreement, unless the term is otherwise set forth in the Customer Purchase Order.
5.1 Maintenance Service Provided: Error corrections, enhancements, and documentation updates ("Revisions") may be initiated from time to time by HighTec and furnished to Customer. In addition, HighTec shall use reasonable efforts to correct, in a timely manner, coding errors reported to HighTec in writing by Customer. Telephone consultation will be provided in a timely basis at the option of HighTec. HighTec cannot guarantee that all coding errors will be corrected or that all Revisions will be compatible with previous versions.
5.2 Eligibility: In order to continue to be eligible to receive Revisions hereunder, Customer must be current in the payment of fees and charges due HighTec under this Agreement and must have accepted and installed the Revision most recently provided by HighTec under this Agreement.
5.3 Term and Renewal: Renewals of maintenance shall be on a year to year basis at the then prevailing rate. The renewal fee shall be due and payable on the effective renewal date, and HighTec shall notify Customer thirty (30) days beforehand. In the event Customer chooses not to renew, or otherwise terminates maintenance of the Licensed Software, Customer shall pay a hundred percent (100%) fee (2 times the normal fee) for subsequent renewal. In the event HighTec chooses to discontinue maintenance of Software, HighTec agrees to notify Customer in writing thirty (30) days in advance and HighTec shall, at its discretion elect to do any or all of the following:
a) replace the Licensed Software with a comparable product, if one exists, subject to monetary adjustments depending upon the cost of the replacement product relative to that of the Software,
b) reimburse the Customer a prorata amount (discounted monthly on a straight line basis over one (1) year) of the maintenance fee already paid,
c) assign maintenance of Software to a third party at no cost to the Customer. Payment of fees for maintenance does not ensure the longevity or continuance of Software.
6 Intellectual Property Rights
Customer acknowledges that all Intellectual Property Rights in the Software are and will remain the sole property of HighTec or its licensors, if any. Nothing contained in this EULA will be construed as transferring by implication, estoppel or otherwise any ownership, license or other rights to Customer except the licenses and rights expressly granted hereunder.
Customer acknowledges and agrees that the Software and all other information provided by HighTec under this EULA are to be kept in confidence, and not to be disclosed except as permitted by this EULA. Customer acknowledges and agrees that the Software constitutes the trade secrets and proprietary information of HighTec and/or third parties. Customer agrees that he shall only make the Software available to his employees, and/or to consultants/independent contractors operating at the Customer's premises, who have entered into a confidentiality agreement with Customer in a sufficient way to protect HighTec's intellectual property rights in the Software. Customer undertakes to use sufficient safeguards to protect the Software from unauthorized access by third parties.
8 Online Services
8.1 Online Services Availability and Use. The Software may rely upon or facilitate Customer's access to websites, or (license) server, maintained by HighTec or other parties offering goods or services ("Online Services" herein). Customer's access to and use of any such website or server, or of any such Online Services, is completely governed by the terms, conditions and disclaimers existing on such websites or server, or in connection with such Online Services. HighTec may at any time, at their discretion, eliminate, alter or modify the availability of any such website or server or any such Online Services.
8.2 No Connection with Third Party Online Service Providers. HighTec does not control, endorse or accept any responsibility or liability in connection with websites or Online Services provided by third parties, even if HighTec includes references or links to such websites on their own website. Any communications or other dealings between Customer and any third party in connection with access to or use of any such website or Online Services, including, but not limited to, delivery and payment terms, are solely between Customer and such third party. In no event shall HighTec be liable to Customer for any failures, deficiencies or errors in complying with applicable laws by such third-party website or Online Service providers.
8.3 Internet Based License Management System. In the event that Customer has licensed the Software from HighTec on an on-demand basis, such that access is effected via the Internet Based License Management System, Customer understands and agrees that nothing herein shall constitute a guarantee or warranty for such Internet Based License Management System to be available to Customer at any and all times.
9 Taking effect; termination
The EULA current at the date of quotation for the Software, supersedes any possibly non-current EULA included within the Software (or non-current revision of the Software).
This EULA is valid from the date of being signed by both parties or the date of the installation or use of the Software on an computer or within an environment of Customer, whatever will occur first, and will remain effective either: (a) for the period of time for which Customer has licensed the Software, or (b) until terminated by either party. Customer may terminate this EULA at any time by destroying the Software and all copies thereof. HighTec may terminate the EULA if Customer fails to comply with any of the terms and conditions of this Agreement. Any payment obligations accruing prior to such termination shall survive and remain due. Upon termination of this EULA, the licenses and rights granted hereunder and the obligations imposed hereunder will cease, and Customer shall destroy the Software including all copies and all relevant documentation. The provisions of all sections which by their nature would survive the termination of this EULA shall so survive and Customer shall be obligated to perform in accordance therewith.
10 Limited Remedy and Disclaimer
HighTec warrants for a period of three (3) months from the Effective Date of the applicable HighTec Software License Sales Order Form that the unmodified and in case of an online delivery error free transmitted Software obtained thereunder and paid by Customer will perform in substantial conformance with the technical specifications set forth in the Documentation; provided, however, that HighTec makes no warranty with respect to any such failure or incorrect result that may arise due to: (i) the quality of the data sought to be processed with the Software; (ii) the effects of other software not licensed by HighTec to Customer or developed by HighTec for Customer; or (iii) the use of the Software in an operating environment or on a platform not specified by HighTec. Unless otherwise explicitly agreed upon, HighTec does not provide any warranty for third parties software, e.g. software components being subject of the GNU General Public License. HighTec does not assume any responsibility for any defects, damages or consequential damages which may occur in connection with the use of an illegal or not fully paid copy of the software.
HighTec warrants the CD-ROMs, DVD's, other media or electronic distribution stream on which the Software is provided to Customer to be free of defects in materials, workmanship or operation under normal use for thirty (30) days after delivery.
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
HighTec does not warrant that the Software will meet Customer's requirements, that the Software will operate in the combinations which Customer may select for use, that the operation of the Software will be uninterrupted or error-free or that all Software errors will be corrected. To the extent Customer obtains any pre-production releases of Software, such Software are distributed "as is" with no warranty of any kind.
11 Exclusive Remedies
For any breach of the warranties contained in this Section, Customer's exclusive remedy, and HighTec's entire liability, shall be:
- For Software: At HighTec's sole discretion, the correction of Software errors that cause breach of the warranty, replacement of such Software. In case HighTec should not be willing or able to cure software errors, Customer may at his sole discretion demand reduction or return of the fees paid to HighTec for the license of such Software.
- For Media: The replacement of defective media returned within thirty (30) days after delivery.
12 Limitation of Liability
With respect to maintenance services and Revisions furnished hereunder, even if advised of the possibility thereof, HighTec shall not be liable for delay in furnishing services or Revisions. IN NO EVENT SHALL HIGHTEC BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR TORT DAMAGES, DAMAGES ARISING IN CONNECTION WITH ANY CLAIM OR DEMAND AGAINST CUSTOMER BY ANY OTHER PARTY, DAMAGES ARISING FROM EQUIPMENT DOWN-TIME, OR LOSS OF DATA, OR EXEMPLARY OR PUNITIVE DAMAGES, WHETHER RESULTING FROM LOSS OF USE, DELAY OF DELIVERY, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE PERFORMANCE OF THE SOFTWARE, OR HIGHTEC'S PROVISION OF SERVICES, GOODS OR OTHER EVENTS RELATING TO THE SOFTWARE, EVEN IF HIGHTEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Customer shall indemnify and hold HighTec harmless from and against any loss, claim, liability, damage, cost or expense, including attorney's fees, payable to any person or entity arising out of or relating to the Customer's use of Software, and HighTec shall not be liable for damages with respect to Software which exceed the amount of the fees paid to HighTec by Customer hereunder.
Except as stated otherwise, neither this EULA, nor any interest herein or part hereof, are assignable or transferable without HighTec's prior written consent, including any transfer or assignment by operation of law, agreement of merger, sale of assets or otherwise.
14 Governing Law, Venue
This EULA shall be governed by the laws of Germany, without reference to conflict of law or choice of law principles or decisions. The parties agree on Saarbruecken, Germany, as the exclusive place of jurisdiction. HighTec is entitled to sue the Customer at every other admissible venue.
15 Severability Clause
Should one or multiple provision(s) of this agreement be or become ineffective, this shall not affect the validity of the remaining provisions. In such a case, the ineffective provision(s) shall be replaced by such that is/are as similar as possible as regards content, and which comes closest to the ineffective or unfeasible provision(s) regarding its/their purpose. The same applies to possible loopholes in this agreement.
16 Entire Agreement
This agreement and HighTec's Standard Terms and Conditions for the Sale and Lease of Goods represent the complete and exclusive understanding between the parties and supersede all prior agreements, understandings and communications related to the subject matter of this agreement, be they oral or in writing. No addition or modification to this EULA is valid unless made in writing and signed by authorized personnel of HighTec and the Customer.
(c) HighTec EDV-Systeme GmbH - EULA 2017-v1