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- NON-AUTHORITATIVE ENGLISCH VERSION –
02-2009 Version 2.0 1
End User License Agreement
between
ANDTEK GmbH
Am Soeldnermoos 17
D-85399 Hallbergmoos
Deutschland
- hereinafter referred to as „ANDTEK“ -
and
the company using the software
- hereinafter referred to as „user“ -
- collectively referred to as „the parties“ -
regarding the licensing of software in object code
for the operation of an IP based communication
system of the user.
This end user license agreement (EULA) shall at all time be prior to ANDTEK’s General Terms and Conditions (AGB) which shall apply in addition. The AGB can be downloaded from http://www.andtek.com/agb.html.
1. Formation of this Agreement
1.1. By clicking the button „Accept (Zustimmen)“ during the download or installation the user agrees to the terms set forth in this agreement and confirms that he has been informed by the distribution or channel partner of ANDTEK or ANDTEK herself before the conclusion of any contract regarding this software, that it is required to conclude this End User License Agreement before the right to use the software can be obtained. The same applies, when the user installs, copies, uses or accesses the software.
1.2. If the user does not agree to the terms and conditions in this End User License Agreement, he has no right to use, install, copy or access the software. Where applicable, the user’s right to return the software is unaffected.
2. Subject of the Contract
2.1. ANDTEK grants the user a non-exclusive, non-transferrable, limited right to use the software in reference to operating an IPbased system. The software is protected by copyright according to articles 69a et sqq. UrhG (German Copyright Act).
2.2. ANDTEK offers the software covered by this agreement as a standard software solution. ANDTEK reserves the right to implement new functions and improvements in future versions of the software. For the creation or customization of non-standard software solutions, an independent agreement between ANDTEK and the user has to be concluded.
2.3. The software-packet is in general being distributed through an online download system to the systems of the user. This distribution type is independent from the chosen sale channel (ANDTEK/distribution partner). On demand and in exchange for an administrative fee, ANDTEK also delivers the software on a physical media (CD-ROM/DVDROM). ANDTEK offers, on a limited scale and not exhaustive, access to a knowledge database in regard to the software referred herein.
2.4. The software-packet consists of the software referred herein and a user manual. The user accepts the delivery of a user manual in English language and in electronic form as an orderly delivery.
2.5. Articles 7 and 8 under this agreement (“warranty” and “liabilities”) do not apply in case the user did not acquire the software directly from ANDTEK but from a third person like a vendor or channel partner of ANDTEK. The same shall apply to corresponding provisions in ANDTEK’s AGB. In this case the user is bound to solely assort his claims against the third party vendor.
3. Know-How-Level of the User
3.1. The software covered by this agreement is being offered and produced as a product for commercial use only. For the proper installation and administration of the software a know-how-level of the user is being presumed which is customary in the business of operating IP based systems in a commercial manner.
3.2. In case the user does not fulfill the prerequisites stipulated in 3.1, ANDTEK offers for an additional fee training programs on the user’s
request.
4. Reproduction and Access Protection
4.1. The user is allowed to reproduce the delivered software, as long as the reproduction is indispensible for the use of the software. In particular the user is allowed to download, install and copy the software from a temporary media or the genuine data media to the mass storage of the systems intended for the use of the software, as well as to the main memory of these systems.
4.2. In addition the user is allowed to make 1 (one) reproduction for data-backup purposes only. The backup-copy has to be labeled as
such.
4.3. For reasons of data-security or for assuring a fast recovery from total data loss, a necessary number of rotational backups of the whole computer system containing the software can be performed. The backup media containing parts of the software or the whole software have to be labeled as backup media. These backup-reproductions have to be used only for archival purposes.
4.4. The user is bound to take adequate measures to prevent the access of any third party to the software, the online-documentation or any other service provided by ANDTEK in relation to this software. If genuine data media or documentation was delivered by ANDTEK, the user has to keep it in safe custody, preventing unauthorized access. Reproductions in temporary media made for the purpose of installation have to be deleted after the installation process. The user has to inform his employees that this software is
protected by copyright laws and that the
regulations stated in this agreement have to
be observed.
4.5. Other reproductions than stated above are
not permitted. In particular the user is not allowed
to print out the software code, as well
as the online-documentation on a printer.
The user can obtain further copies of the
manual from ANDTEK if needed.
4.6. ANDTEK is entitled to protect its software
products, as well as the online documentation
through technical measures against unauthorized
duplication or access. In detail
ANDTEK is entitled to provide a unique identity
mark to the software in part or as a whole
by using electronic digital signatures or other
electronic identification proceedings.
5. Multiple-User and Network-Usage
5.1. The user is allowed to use the software on
any hardware owned by him or made available
to him by third parties. If the user replaces
the hardware, he must delete the
software from the replaced systems.
5.2. Multiple-User and network usage is permitted
only in line with an agreed concurrentuser
or named-user licensing. If the software
has been licensed using the concurrent-user
licensing model, the user is allowed to access
the software with the licensed number
of users or devices at the same time. If the
software has been licensed using the
named-user licensing model, the user is allowed
to access the software only with the
licensed users or devices. Further details
about the licensing model of the software
can be found on
http://www.andtek.com/licensing and will also
be stated in the relevant offer.
5.3. If the software has been licensed using the
concurrent-user licensing model, the use of
the software in a network or multiple-user
environment is prohibited, as long as the opportunity
is being provided to access the
software with more than the licensed number
of concurrent users. If the user would like to
access the software with more than the licensed
number of concurrent users or devices,
he must acquire more licenses from
ANDTEK. The number of additional licenses
to acquire is assessed by the number of additional
concurrent users or devices to access
the software. The use of the software in
such a multiple user or network environment
is only admissible after the user acquired the
required number of licenses.
5.4. If the software has been licensed using the
named-user licensing model, the use of the
software in a network or multiple-user environment
is prohibited, as long as the opportunity
is being provided to access the software
with any other than the licensed user or
device. If the user would like to access the
software with any other than the licensed
user or device, he must acquire more licenses
from ANDTEK. The number of additional
licenses to acquire is assessed by the
number of additional users or devices to access
the software. The use of the software in
such a multiple user or network environment
is only admissible after the user acquired the
required number of licenses.
6. Reverse-Engineering and Program Modification
6.1. Any kind of reverse-engineering or decompilation
of the licensed program code or any
form of program modification is prohibited,
as long as no case regulated in article 69e
subsection 1 UrhG (German Copyright Act)
is existent.
6.2. The elimination or bypass of a copyright
protection or any similar protection is prohibited.
6.3. Copyright notices, serial numbers or any
other attribute being used for program identification
or for copyright notice must not be
removed or modified. This also includes any
similar attribute being displayed on the computer
screen
7. Warranty
7.1. The software provided is conceptualized as
standard software for operation with specific
hardware configurations. ANDTEK recommends
for the use of the software specific
vendor dependent hardware configurations
with specific design parameters concerning
architecture type and performance. When
using any other than the recommended
hardware configurations a faultless operation
cannot be guaranteed. The recommended
hardware configurations can be obtained
through ANDTEK’s website,
http://www.andtek.com/certified_hardware.ht
ml. With respect to the remainder, it is the
user’s obligation to choose the appropriate
hardware and architecture.
7.2. Defects of the delivered software (factual
and legal positions) including the program
- NON-AUTHORITATIVE ENGLISCH VERSION –
02-2009 Version 2.0 2
documentation and all other material provided
will be resolved by ANDTEK within a
year upon delivery of the software after corresponding
notice from the user. ANDTEK
has the right to choose between resolving
the defects of the software delivered (rectification
of defects) and the delivery of faultless
software (replacement). As far as it is
required to return the software to ANDTEK,
the user has to bear the costs of transport.
7.3. In case the defect cannot be resolved in
reasonable time, or in case the resolving can
be considered as failed, the user is entitled
at his choice to reduce the license fee (reduction),
withdraw from the agreement
(withdrawal), claim compensation for damages
or compensation of wasted expenses.
For the claims of compensation for damages
or compensation of wasted expenses article
9 of this agreement shall apply. The withdrawal
from the agreement does not exclude
the right of compensation.
7.4. The rectification or replacement shall only be
considered as failed in case ANDTEK was
given a reasonable amount of time and opportunity
for her attempts of rectification or
replacement without achieving the desired
results, in cases where the rectification or
replacement is impossible, in cases ANDTEK
denied or unreasonable delayed the
rectification or replacement, and in cases of
unacceptability arising out of other reasons.
8. Liabilities
8.1. For all cases of contractual and noncontractual
liabilities, ANDTEK shall be liable
solely according to the following limitations:
8.1.1. in case of intention of ANDTEK, her
legal representatives or vicarious
agents, for the full amount, also in the
absence of a characteristic, which
ANDTEK guaranteed;
8.1.2. in case of gross negligence of ANDTEK,
her legal representatives or vicarious
agents only to the amount of the predictable
damage, which should have
been prevented through the duty
breached;
8.1.3. in all other cases: only for the breach of
a essential contractual duty which is of
special importance for achieving the
purpose of the contract and the party of
the contract can normally rely on (cardinal
obligation) to the extent of the typically
predictable damage;
8.2. The liability limitations according to sec. 8.1.
shall not apply in any case of liability arising
out of personal injury, fraudulent intent, and
in cases of liability according to the German
Product Liability Act.
8.3. In all cases according to sec. 8.1.3. the
liability of ANDTEK is limited to the extent of
the coverage of ANDTEK’s business indemnity
insurance. On demand the insurance
coverage can be raised on the customer’s
expenses.
8.4. ANDTEK reserves the right of defense of
contributory fault.
8.5. In cases of liability arising out of data loss,
ANDTEK’s liability is limited to the typical
expenses which would occur if data backups
according to the existing risks would have
been performed on a regular basis.
8.6. The aforementioned provision shall also
apply in favor of ANDTEK’s employees.
9. Review and Notification Duty
9.1. The user is bound to review the software
including the documentation (offline and online)
within 10 working days (Monday to Friday)
after the granting of the license, in particular
regarding the completeness of the
media and documentation as well as the operability
of essential software-functions. The
user has to verifiable notify ANDTEK within
another 8 working days regarding defects,
which are discovered or could be discovered.
The defect notification must include to
the user’s best efforts a detailed description
of the discovered defects.
9.2. Defects, which can’t be discovered in scope
of a correct defect review, must be challenged
in compliance to article 10.1 within 8
working days (Monday to Friday) after discovery.
9.3. A breach of the review and notification
obligations shall be considered as an acceptance
of the relevant defect by the user as a
proper delivery.
10. Duty of Proper Care
10.1. The user must store all backup media
according to Article 4.2 and 4.3 and – if applicable
- all media delivered, in a storage
which is especially secured against unauthorized
access of third parties. The user
must emphatically notify his employees to
comply with this agreement and ANDTEK’s
copyright.
11. Term
11.1. The duration of the agreement is
undetermined.
11.2. In case the user is severely violating
his obligations out of this contract, in particular
provisions on behalf of intellectual property
rights or trade mark rights, ANDTEK is
entitled to terminate this agreement without
prior notice.
12. Collision with other Terms and Conditions
12.1. ANDTEK only grants the user the
rights according to this EULA, provided that
the user accepts the priority of this agreement
to the user’s own terms and conditions.
13. Customization of this Agreement
13.1. ANDTEK is entitled to customize this
agreement also to the disadvantage of the
user, in cases of unforeseeable circumstances
which have not been caused by
ANDTEK and which cannot be influenced by
ANDTEK, as long as the customization is
reasonable to the user and the circumstances
are disturbing the relationship between
performance and counter performance
in a not inconsiderable way. In addition
to this, ANDTEK is entitled to customize unintended
omissions incurring out of this
agreement which are leading to severe difficulties
regarding the execution of this
agreement, in case the customization seems
mandatory.
13.2. If any customizations will become
necessary, ANDTEK will notify the user in
reasonable time about the intended customization
using electronic communication (e.g.
e-mail). The user is entitled to object to the
customization within a period of one month
after receiving the notification. In case the
user objects, the original provisions will stay
unaffected. ANDTEK shall then be entitled to
terminate this agreement with prior notice of
one month. If the user is not objecting to the
customization within the aforementioned
time period, the customized provisions shall
become effective.
14. Written Form
14.1. Any statements of the parties, considering
the addition, customization and concretion
of this agreement, as well as any
special guarantee or special agreement require
the written form for validity. This also
applies to any changes on this requirement.
15. Affirmation of Notification and Information
15.1. The user affirms his knowledge of this
End User License Agreement, in particular
by downloading and installing the software.
The user acknowledges that he has been
handed out or electronically received a copy
of this agreement before the licensing of the
software. The user also had the possibility to
take notice of this agreement in a reasonable
way by visiting the ANDTEK website.
16. Applicable Law
16.1. This agreement, as well as any other
privity of contract, is to be governed by and
construed in accordance with German law
under exclusion of the regulations arising out
of the Convention on the International Sale
of Goods.
17. Place of Jurisdiction
17.1. As far as the user can be classified as
a „Kaufmann“ (business man) according to
the German Commercial Code, the parties
agree on Munich, Bavaria, Germany as
place of jurisdiction for all disputes arising
out of this agreement.
18. Language Versions of this Agreement
18.1. The construction and interpretation of
this Agreement shall be determined solely
on the basis of its German language version;
only the German language version is legal
effective. Any other language versions, especially
this English version, are purely for
the sake of convenience and not authoritative.
19. Severability Clause
19.1. Should any individual provisions in
the above options terms be or become invalid,
either in part or in full, or impracticable,
this will not affect the validity of the other
provisions. The invalid or impracticable provision
will be replaced by a ruling that is as
close as possible to the intended economic
purpose.
Hallbergmoos, June 23, 2009
ANDTEK GmbH |
