Track+ License V2.0
This End User License Agreement (the "Agreement") is an agreement between the legal entity using the Software including all individuals using the Software on behalf of the legal entity ("Licensee") and Steinbeis GmbH & Co. KG für Technologietransfer, a company organized under the laws of Germany ("Supplier”) with its principal place of business at Eugen-Ruoff-Str. 30, D-71404 Korb, Germany.
PLEASE READ CAREFULLY THE TERMS OF THIS AGREEMENT PRIOR TO OBTAINING THE LICENSE KEY. BY OBTAINING THE LICENSE KEY YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS YOU MAY NOT USE THE SOFTWARE.
"Accessible Code" means source code provided with the Product that is unprotected and may be modified under the terms of this agreement.
"Channel Partner" means distributors and resellers authorized by Supplier or its distributors to sell the Track+ Product(s).
"Server" means a single physical computer or a single virtual machine on a physical computer.
"License Key" means the code which enables the Product to operate. This code is being sent by Supplier to an Authorized Contact Person of the Licensee.
"Product" means the Trackplus product(s) delivered under this Agreement, consisting of the Software, and any tools, documentation, or associated materials that may accompany such delivery, as defined in the quote and invoice.
“Protected Code” means source code that is protected by Track+ and not accessible under this agreement.
"Software" means the object and source code copy of the Software solution developed by Supplier and all third party software that Supplier may license from third parties and deliver to the Licensee as part of the Software, as well as all related manuals and other documentation and any future upgrades provided by Supplier or its Channel Partner under this Agreement or any related maintenance agreement. Specifically excluded from this definition, however, are all software components licensed under the terms of the GNU General Public License or the GNU Lesser General Public License, as published by the Free Software Foundation (for example, software components relating to the Linux operating system kernel). Such components are distributed to you solely under the terms of those respective licenses, copies of which you have received along with the Software.
2. GRANT OF LICENSE
(1) Subject to the terms and conditions of this Agreement, and subject to the payment of the agreed purchase price of the Product, Licensee is granted a non-exclusive, non-transferable, non-assignable license for one (1) installation of the Software on one Server, and any upgrades thereto, only for the use and configuration specified by the License Key and stated on the invoice.
(2) Save as provided in clauses 7 and 8 below the Product is provided on an “as is” basis without warranty, express or implied, or any kind or nature, including, but not limited to, any warranties of performance or merchantability or fitness for a particular purpose, including without limitation that Supplier does not warranty that the Product will be error-free, correct, or complete. Supplier provides evaluation license keys so that customers can assess the Product prior to purchase.
(3) Upon receipt of the license fee, Supplier will (i) supply Licensee with a license key and (ii) make the product and associated documentation available via electronic software download. Supplier will make Accessible Code available only upon request by Licensee.
(4) Licensee may use the Products only in its own internal business operations. Licensee will not (i) allow others or develop methods for others to use the Products, (ii) rent the Products, (iii) use the Products for providing services to third parties or (iv) make the Products available on a time-sharing basis without a prior written consent of Supplier.
(5) Licensee may modify the Accessible Code. For the modified Software, Licensee will reproduce all confidentiality and proprietary notices. Any modified Software is also subject to this Agreement. Licensee may not (or permit others to) otherwise copy, reproduce, transfer, assign, sub-license, distribute, translate, modify, adapt, decompile, decipher, disassemble or reverse engineer the Software except to the extent expressly authorized by law. Under no circumstance may Licensee distribute the Product via OEM distribution in original or modified form, either standalone or embedded in another product without prior written consent of Supplier. The Product includes license protection mechanisms that are designed to manage and protect the intellectual property rights of the Supplier. Licensee must not alter those features to defeat the Product use rules that the license protection mechanisms are designed to enforce.
3. SOFTWARE MAINTENANCE AND SUPPORT
(1) Supplier provides support and maintenance and future upgrades for the Software only under a separate Support and Maintenance Agreement for so long as these services are generally available.
4. INTELLECTUAL PROPERTY RIGHTS
(1) Title to the Software and all patents, copyrights, trade secrets and other proprietary rights in or related thereto are and will remain the exclusive property of Supplier and its licensors and subcontractors, whether or not specifically recognized or perfected under the laws of the country where the Software is used or located. Licensee will not take any action that jeopardizes such proprietary rights or acquire any right in the Software, except the limited license specified in this Agreement. Supplier and its licensors will own all rights in any copy, translation, modification, adaptation or derivation of the Software, including any improvement or development thereof.
5. TERM AND TERMINATION
(1) This Agreement is effective until terminated. Supplier may terminate this Agreement with immediate effect at any time upon Licensee's breach of any of the provisions hereof. Upon termination of this Agreement, Licensee agrees to cease all use of the Products and to return to Supplier or destroy each copy of the Software and all documentation and related materials in Licensee's possession, and so certify to Supplier. Except for the license granted herein and as expressly provided herein, the terms of this Agreement shall survive termination.
(1) If notified promptly in writing of any action (and provided that Supplier has been promptly notified of all prior claims relating to such action) brought against Licensee based on a claim that the unaltered Software (excluding third party products) supplied by Supplier to Licensee under this Agreement infringes a patent or copyright, Supplier shall defend such action at its expense and pay any costs or damages finally awarded in such action which are attributable to such claim, provided that Supplier shall have sole control of the defence of any such action and all negotiations for its settlement or compromise.
(2) If a final injunction is obtained against Licensee's use of the Software by reason of infringement of a patent or copyright, or if in Supplier’s opinion any of the Software supplied to Licensee hereunder is likely to become the subject of a successful claim of infringement of a patent or copyright, Supplier shall, at its option and expense, either procure for Licensee the right to continue using such Software or replace or modify the same so that it becomes non-infringing or, at Supplier’s election, terminate this Agreement and provide Licensee a prorated refund (depreciated on a straight-line 3 year basis) for the Product and accept its return.
(3) Notwithstanding the foregoing, Supplier shall not have any liability to Licensee under this Section if the infringement or claim is based upon (a) the use of the Software in combination with other equipment or software which is not furnished by Supplier (if such claim would have been avoided were it not for such combination), (b) Software which has been modified or altered by Licensee or (c) intellectual property rights owned Licensee or any of their respective affiliates. No cost or expenses shall be incurred for the account of Supplier without the prior written consent of Supplier.
(4) THE FOREGOING STATES THE ENTIRE LIABILITY OF SUPPLIER WITH RESPECT TO INFRINGEMENT OF PATENTS OR COPYRIGHTS BY THE SOFTWARE OR ANY PART THEREOF.
7. SOFTWARE WARRANTY AND WARRANTY DISCLAIMERS
(1) Supplier’s and its Channel Partners' entire liability and Licensee's exclusive remedy, with respect to the Software, shall be at Supplier’s option to either, (i) replace the Software; or (ii) correct the defect through updates and/or upgrades. Since a fully functional trial version is available for an unlimited time to conduct all necessary tests and evaluations at Licensee’s site, it is not possible to refund the license fee once a license key has been supplied.
(2) The Products are not designed, manufactured or intended for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Product could lead directly to death, personal injury, or severe physical or property damage or environmental damage (collectively, "High Risk Activities"). Supplier and its Channel Partners expressly disclaim any express or implied warranty of fitness for High Risk Activities.
(3) EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION, THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. SUPPLIER DOES NOT WARRANT THAT THE SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUPPLIER DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to Licensee.
8. LIMITATION OF LIABILITY
(1) IN NO EVENT, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL SUPPLIER BE LIABLE TOWARDS LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, COSTS, LOSS OR EXPENSE, (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OR INTERRUPTION OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY) ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT IRRESPECTIVE OF WHETHER SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Licensee.
(2) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL SUPPLIER BE LIABLE FOR DAMAGES IN EXCESS OF THE PURCHASE PRICE OF THE RELEVANT PRODUCT.
9. EXPORT CONTROLS
(1) Licensee agrees that the Products will not be shipped, transferred, or exported into any country or used in any manner prohibited by any applicable law.
(2) Licensee is specifically advised and acknowledges that exports of the Products are subject to compliance with the export control regulations under the laws of Germany and/or the European Council (EC), as promulgated from time to time by the relevant authorities. The Products shall not be exported or re-exported, directly or indirectly, (i) without all export or re-export licenses and German or other governmental approvals required by any applicable laws, or (ii) in violation of any applicable prohibition against the export or re-export of any part of the Products.
(3) In addition, Licensee acknowledges and understands that upon entry into the United States, Suppliers Products may become subject to U.S. export control laws and regulations. Licensee agrees to comply with all such applicable laws and regulations and acknowledges that it has the responsibility to obtain license to export, re-export, or import said products.
10. GOVERNMENT RESTRICTED RIGHTS
(1) If Licensee is acquiring the Software, including accompanying documentation on behalf of the U.S. Government, Licensee will receive no greater than Restricted Rights (as defined in FAR 52.227-14, FAR 52.227-19(c)(1-2) or DFAR 252.227-7013(c)(1)(ii), DFAR 252.221-7015(c), DFAR 252.227-7014 or DFAR 252.227-7018 as applicable). Use, duplication, reproduction or disclosure by the Government is subject to such restrictions or successor provisions.
(1) The terms of this Agreement may not be modified except by a written agreement issued by a duly authorized representative of Supplier.
(2) Licensee agrees to comply with all applicable data protection and other local laws that apply to licensee's use of the Product, including but not limited to EU Directive 94/46/EC, and Licensee agrees to fully indemnify Supplier against any failure of Licensee to so comply with such local laws.
(3) This Agreement is governed by the laws of Germany, without giving effect to the conflict of law principles thereof. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. All disputes arising under or relating to this Agreement shall be resolved exclusively in the appropriate German court sitting in Stuttgart, Germany.
(4) This Agreement sets forth all rights for the Licensee of the Products and is the entire agreement between the parties. These terms supersede any other communications with respect to the license of the Software or use of the Products. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by Supplier or a duly authorized representative of Supplier. If any provision of these terms is held invalid, the remainder of these terms shall continue in full force and effect.