END USER LICENSING AGREEMENT (EULA)

for ADVITEC Informatik GmbH, Schweizer Straße 3 a, D-01069 Dresden

PLEASE READ THIS END USER LICENSING AGREEMENT (“EULA”) CAREFULLY BEFORE USING THE ADVITEC SOFTWARE “ADVISIM3D” (“SOFTWARE”). BY USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE FOLLOWING PROVISIONS AND THAT YOU AGREE TO THE PROVISIONS OF THIS EULA. A NATURAL ENTITY ACTING ON BEHALF OF A LEGAL ENTITY HEREBY EXPLICITLY CONFIRMS THAT HE OR SHE IS ENTITLED TO ENTER INTO THIS EULA ON BEHALF OF THE LEGAL ENTITY. IF YOU DO NOT ACCEPT THE PROVISIONS OF THIS EULA, YOU ARE NOT ENTITLED TO install, copy or OTHERWISE use THE SOFTWARE. THIS EULA DOES NOT ESTABLISH ANY RIGHTS TO ADVITEC SERVICES, SUCH AS SOFTWARE MAINTENANCE, UPGRADES OR SUPPORT. WITH REGARD TO SERVICES AND THE ASSOCIATED PAYMENTS, PLEASE CONSULT ANY SERVICE OR SUPPORT CONTRACTS THAT YOU MAY HAVE CONCLUDED WITH ADVITEC OR OTHER AUTHORIZED SUPPLIERS OR ADVITEC PARTNERS.

  1. General
  2. Deliverable
  3. Scope of licensing 
  4. Decompiling and program changes
  5. Reservation of rights and title
  6. Support and services
  7. Term and termination
  8. Limited warranty
  9. Liability
10. Third-party software
11. Duties of care regarding the software, assumption of risk
12. Processing personal data
13. Miscellaneous
14. Final provisions

1. General

1.1 The licenser is ADVITEC Informatik GmbH, Schweizer Straße 3 a, D-01069 Dresden. We hereby grant you a non-exclusive, non-transferable usage right for the SOFTWARE. This includes the specific software program, the associated licensed software modules, subsequent expansions, updates or patches, the associated documentation for internal company operations, any data sheets, and the associated software help function.

1.2 If we have described the SOFTWARE as an “update,” “upgrade” or “patch,” you must hold the software product license that we designate as appropriate for the update, upgrade or patch in order to use the SOFTWARE. Any SOFTWARE that we describe as an update, upgrade or patch replaces and/or expands the original product that was the basis for the update and upgrade.

2. Deliverable

2.1 We shall deliver the SOFTWARE according to the product description in the documentation and the applicable performance specification, which defines the licensing fee. Subject to other agreements, the SOFTWARE shall be delivered in the version that is current at the time of delivery.

2.2 The functional characteristics of the SOFTWARE delivered by us are definitively determined by the product description in the documentation.

2.3 We do not owe any further characteristics of the SOFTWARE. In particular, you cannot derive any such obligation from other representations of the SOFTWARE in our public statements or our advertising unless we have explicitly confirmed the further characteristic in writing. Guarantees must be explicitly confirmed in writing by our management.

2.4 You hereby explicitly declare that you are informed of the significant functional characteristics of the SOFTWARE. You bear the risk as to whether this meets your needs and standards. In case of doubt, you must obtain advice from our employees or third-party experts before concluding the agreement. We will be glad to inform you of the technical uses and usage conditions of the SOFTWARE upon request.

3. Scope of licensing

3.1 We reserve all copyrights and other property rights to the SOFTWARE where these have not been explicitly transferred to you on the basis of the usage rights transferred herein.

3.2 You are entitled to install and use the software free of charge on a trial basis. The implementation and use of a trial version is limited to 30 days from the licensing date, but includes at least 25 days following delivery. With the exception of this time limit, the scope of the trial license is based on the following provisions.

If you purchase a full license after completing the trial phase, the registered trial license will be converted to a full license. The SOFTWARE does not need to be re-installed at the time of conversion.

3.3 We generally grant you a non-exclusive license to install and use the SOFTWARE on hardware of your choice (multi-user license). You are allowed to install and use the SOFTWARE on the respective hardware according to the service description. You are not entitled to transfer the SOFTWARE electronically between computers or via a network. You are entitled to install and use the SOFTWARE at all locations of your company. This does not include the use of the SOFTWARE in a company affiliated with you in the sense of § 15 of the German Stock Corporation Act (AktG).

3.4 You are entitled to convey the SOFTWARE to third parties and to transfer to them the usage rights granted to you in this EULA, within the same scope. In this case, you must physically delete the SOFTWARE copy and any existing backup copies at the time of the transfer, unless you are selling the SOFTWARE to the third party along with the hardware. You shall obligate the buyer in writing to comply with the present EULA, and shall notify us without delay of the conveyance and transfer of usage rights as well as the buyer’s address.

3.5 Lending or renting the SOFTWARE without our approval is not permissible.

3.6 You may reproduce the delivered SOFTWARE to the extent necessary in order to use the SOFTWARE. Among other things, necessary reproductions of the SOFTWARE include installing the SOFTWARE on the hardware’s mass storage according to this EULA and loading the SOFTWARE into the hardware’s main memory. Furthermore, you are entitled to create a single backup copy. This backup copy of the licensed SOFTWARE must be labeled as such. You are not entitled to create additional copies or to instruct third parties to create additional copies, in particular by printing out the program code on a printer or making photocopies of the manual.

4. Decompiling and program changes

4.1 You may not make any changes to the SOFTWARE unless this is necessary in order to rectify faults and we are in default with the rectification. In the latter case and if important program functions and work methods could be disclosed during the repair process, you shall only hire a commercially active third party to perform repairs if the third party is not a potential competitor for us.

4.2 Re-translating the licensed program code into other code forms (decompiling) and other types of reverse engineering for various phases of the software creation are not permissible except for the purpose of obtaining information that is needed for interoperability with an independently created computer program, and only if this information cannot be obtained in some other manner. You must first request the information from us in exchange for a fee.

5. Reservation of rights and title

5.1 All ownership rights and copyrights regarding the SOFTWARE, any accompanying printed materials and all copies of the SOFTWARE shall remain with us or our supplier. You are not entitled to reproduce the printed materials included with the SOFTWARE.

5.2 You are not entitled to remove, modify or supplement any references to copyright or brand names that we have affixed. Without limitations, this includes all references in physical and/or electronic media or documentation, in the “Setup Assistant” or in the “About…” dialog fields and/or in other references represented online or activated online, in the program code or other embodiments originally contained in the software or otherwise created by us.

6. Support and services

As a rule, we only offer technical support services in exchange for a fee. The scope of technical support that we provide is defined in the performance specification for the SOFTWARE. You are responsible for backing up all of your software and programs before obtaining technical support from us. We reserve the right to refuse, suspend or cancel free technical support at our own discretion.

7. Term and termination

7.1 This EULA along with the usage right shall be legally effective upon payment in full of the licensing fees to us (effective date). With the exception of temporary licensing agreements, this Licensing Agreement shall begin on the date specified in our order confirmation or on the start date that you specified in a written agreement (effective day).

7.2 You can terminate this EULA at any time by providing us with a notification in text form. The usage right granted to you shall lapse upon termination of the Licensing Agreement.

7.3 We are entitled to terminate this Licensing Agreement and the corresponding usage rights with immediate effect if you have violated a provision of this Licensing Agreement or implicitly tolerated a violation of this Licensing Agreement by third parties or failed to fulfill your duties from this Licensing Agreement or if you filed for insolvency.

7.4 Under no circumstances shall licensing fees be reimbursed, in full or in part, upon termination. In the event of a termination or cancellation of this EULA, you agree to destroy all copies of the SOFTWARE as a whole, in parts, or in connection with other software. Your rights from Point 3.3 remain unaffected hereby.

7.5 Regardless of the above provisions, this EULA shall automatically end if you violate one of its provisions. Furthermore, this EULA shall end automatically if you transfer ownership of the SOFTWARE or a copy of the SOFTWARE to a third party or sell the hardware on which the SOFTWARE is installed to a third party.

8. Limited warranty

8.1 Unless explicitly agreed otherwise, the SOFTWARE we provide corresponds to the current state of the art as well as the product information and specifications that we have provided in each case, including the information in the SOFTWARE help function. We do not guarantee that the SOFTWARE as described in this EULA is suitable for any purposes beyond the fulfillment of our contractual duties.

8.2 The SOFTWARE is only considered to have a defect if this can be reproduced at any time. Insignificant deviations from the agreed characteristics that do not impair the use of the SOFTWARE as contractually agreed upon or expected by the parties are not considered defects and shall not establish warranty rights.

8.3 If, within 12 months of the delivery date, the SOFTWARE fails to include significant functions or performance characteristics named in the product information and specifications (defects), we shall at our discretion:

a) provide supplementary performance in the form of defect rectification through reworking or delivery of new SOFTWARE, or

b) take back the SOFTWARE and reimburse any fees already paid.

8.4 WITH THE EXCEPTION OF THE ABOVEMENTIONED LIMITED WARRANTY, THE SOFTWARE IS PROVIDED AS IS. WE DO NOT PROVIDE ANY WARRANTY WITH REGARD TO THE USE OR PERFORMANCE OF THE SOFTWARE. WE ASSUME NO WARRANTY OBLIGATIONS AND HEREBY EXPLICITLY EXCLUDE ANY OTHER EXPLICIT, IMPLICIT OR STATUTORY WARRANTY, PARTICULARLY ANY IMPLICIT WARRANTY OF SUITABILITY FOR A SPECIFIC PURPOSE. FURTHERMORE, WE EXPLICITLY EXCLUDE ALL WARRANTIES WITH REGARD TO NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MARKETABILITY, SATISFACTORY QUALITY OR THE ABILITY TO INTEGRATE THE SOFTWARE INTO OTHER PRODUCTS. YOU ARE RESPONSIBLE FOR CHOOSING THE SOFTWARE THAT YOU WISH TO USE TO ACHIEVE YOUR DESIRED RESULTS, AND FOR INSTALLING AND USING THE SOFTWARE AS WELL AS FOR THE RESULTS ACHIEVED WITH THE SOFTWARE. IN PARTICULAR, WITHOUT LIMITATION OF THE ABOVE SENTENCES, WE DO NOT WARRANT THAT THE SOFTWARE IS FREE FROM DEFECTS OR INTERRUPTIONS OR OTHER FAILURES, OR THAT THE SOFTWARE WILL MEET YOUR SPECIFIC STANDARDS AND NEEDS.

8.5 A warranty for the free trial version is explicitly not granted.

8.6 Binding statutory provisions under applicable law remain unaffected hereby.

9. Liability

9.1 Unless otherwise stated in this EULA, including the provisions below, we shall be liable according to the applicable statutory provisions in case of a breach of contractual or non-contractual duties. 

9.2 Regardless of legal grounds, we are liable for damage compensation in the case of intent and gross negligence. We are only liable for simple negligence in the case of:

• damage due to a loss of life, bodily injuries or damage to health,
• damage due to the breach of a significant contractual duty (a duty that makes proper execution of the Agreement possible and which the contractual partner regularly trusts, and can trust, to be fulfilled); in this case, however, our liability is limited to compensation for foreseeable, typically occurring damage. In the case of property damage, the amount is limited to the net compensation agreed in each case.

9.3 Any contributory negligence on your part shall be offset against any damage compensation claims.

9.4 The liability limitations defined in Point 9.2 shall not apply if we have maliciously concealed a defect or if we have provided a warranty for the condition of the goods. The same applies for your claims under the Product Liability Act.

9.5 Further liability for damage compensation beyond what is described in Points 9.1 through 9.4 – regardless of the legal nature of the asserted claim – is hereby excluded. This particularly applies to damage compensation claims from debts at the time when the Agreement was concluded, due to other breaches of duty or due to tortious claims for compensation of property damage as per § 823 BGB [German Civil Code].

9.6 Where our liability for damages is excluded, this also applies to personal liability for damages by our employees, representatives and vicarious agents.

9.7 The above liability regulations do not change the burden of proof to your disadvantage.

9.8 You hereby agree to notify us immediately in text form of any damage in the sense of the above liability regulations so that we can be informed as soon as possible and help you mitigate the damage where necessary.

9.9 Liability for the free trial version is explicitly not assumed.

9.10 Binding statutory provisions under applicable law remain unaffected hereby.

10. Third-party software

10.1 The SOFTWARE contains a certain amount of open-source software from third-party manufacturers (“embedded third-party software”); you must agree to the additional provisions of these third-party manufacturers in order to use such software. The additional provisions of these third-party manufacturers can be downloaded in their current version on the ADVITEC Informatik GmbH website.

The SOFTWARE uses the following third-party licenses:

10.2 You hereby agree to strictly comply with the open-source provisions. If you do not agree to the applicable licensing provisions for third-party software programs, you are not entitled to install the software.

10. 3 Any embedded third-party software or open-source code and open-source licenses shall not limit or impair the usage rights granted to you.

11. Duties of care regarding the software, assumption of risk

11.1 You are obligated to prevent third-party access to the SOFTWARE and documentation by taking suitable measures. In particular, you shall instruct your employees to prevent third parties from accessing the SOFTWARE.

11.2 You must keep the backup copies as per Point. 3.5 in a location that is protected from unauthorized third-party access. You are responsible for ensuring that your employees comply with the present licensing and copyright provisions. In particular, you shall instruct your employees not to make any unauthorized reproductions of the SOFTWARE, data sheets or installation instructions.

11.3 If one of your employees violates the copyright or grants unauthorized third parties access to the SOFTWARE, you must participate in investigating the violation and inform us of the violation.

12. Processing personal data

12.1 Where you have the opportunity to enter personal or business data (email addresses, names, mailing addresses) on the website, this data is provided by you on an explicitly voluntary basis.

12.2 When you use the SOFTWARE, we collect and process your personal data. This information includes:

-           product version,
-           anonymized user ID (hash),
-           operating system,
-           operating system version,
-           available memory,
-           screen resolution,
-           start and end time of each session,
-           license type, license serial number,
-           license expiration date,
-           call list for program errors.

12.3 We process the abovementioned data for the following purposes:

-           ensuring a smooth connection for the SOFTWARE,
-           ensuring convenient use of the SOFTWARE,
-           ensuring fast fault rectification,
-           for statistical purposes.
 

The legal basis for this data processing is Art. 6(1) p. 1 lt. f GDPR. Our legitimate interest proceeds from the abovementioned data collection purposes. Under no circumstances will we use the collected data to draw conclusions about your person.

12.4 If you need more information or have any concerns about data privacy, please send us an email: datenschutz@advitec.de.

13. Miscellaneous

13.1 The present EULA regulates the use of the SOFTWARE, including all associated updates, source code, appearance, structure and organization, regardless of the manner in which these are provided. This EULA replaces all other statements, warranties and advertising claims regarding the SOFTWARE.

13.2 In order to be effective, any waiver of provisions in this Agreement requires a written waiver declaration, signed by an authorized representative of ADVITEC.

13.3 The descriptive headings in this EULA were added for the sake of better legibility. They do not limit or otherwise affect the interpretation of this EULA.

13.4 You shall not assign your rights from this EULA without our explicit permission.

14. Final provisions

14.1 German law applies. The applicability of the UN Convention on Contracts for the International Sale of Goods is hereby excluded.

14.2 No ancillary agreements have been concluded for this EULA. Any changes or additions to this EULA must be made in text form. This text-form requirement can only be suspended by way of an agreement in text form.

14.3 The place of fulfillment and place of jurisdiction for all disputes arising between the parties on the basis of the EULA is Dresden if you are a merchant, legal person under public law or legal entity under public law, or if you do not have a general place of jurisdiction in the Federal Republic of Germany or have moved your place of jurisdiction to another country. If the requirements for establishing a place of jurisdiction are fulfilled as per § 38 of the Civil Code, the place of jurisdiction for all of the parties’ claims from this EULA is our registered office. However, we are also entitled to bring legal action against you at the court responsible for your registered office.

14.4 If individual provisions of this EULA should be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The parties hereby agree in advance that in this case the invalid provision shall be replaced by a valid provision that as closely as possible approximates the economic intent of the invalid provision. The same applies correspondingly for any gaps in the Agreement.

Dresden, June 2022