General License Terms and Conditions

ATTENTION: You will find these General Terms and Conditions within the Paessler Software that you download and these General Terms and Conditions govern the use of the Paessler Software. To complete the installation of and to use the Paessler Software, you will be required to agree to the terms defined below.

PLEASE READ THESE GENERAL TERMS AND CONDITIONS CAREFULLY.

§ 1 TERRITORY

These General Terms and Conditions govern the use and maintenance of the Paessler Software for customers who use the software outside the Federal Republic of Germany. The use of the Paessler Software in the territory of the Federal Republic of Germany is governd by the "Allgemeinen Lizenzbedingungen der Paessler AG".

§ 2 DEFINITIONS

Site: Defined and/or restricted area (e.g. campus, premises) of which the diameter does not exceed 6,21 miles (10 kilometers), and which is used exclusively by the customer;

Customer: Contract partner who licensed the Paessler Software;

User: Person working with the software.

§ 3 PRE-CONDITION

PAESSLER AG IS WILLING TO LICENSE THE PAESSLER SOFTWARE TO THE CUSTOMER ONLY ON THE CONDITION THAT THE CUSTOMER ACCEPTS ALL OF THE TERMS CONTAINED IN THIS AGREEMENT.

§ 4 ASSIGNMENT

BY DOWNLOADING OR INSTALLING THIS SOFTWARE, THE CUSTOMER ACCEPTS THE TERMS OF THESE GENERAL TERMS AND CONDITIONS AND INDICATES THE ACCEPTANCE THEROF BY SELECTING THE "ACCEPT" BUTTON AT THE BOTTOM OF THESE GENERAL TERMS AND CONDITIONS. IF THE CUSTOMER IS NOT WILLING TO BE BOUND BY ALL THE TERMS, THE CUSTOMER SELECTS THE "DECLINE" BUTTON AT THE BOTTOM OF THE AGREEMENT AND THE DOWNLOAD OR INSTALL PROCESS WILL BE INTERRUPTED.

§ 5 LICENCES

Paessler grants to the customer a non-exclusive license to use the Paessler Software in object code form as described in these General Terms and Conditions.

1. “Commercial-Edition”

The “Commercial-Edition-Software” is designed for the exclusive use by the customer. For the grant of license a fee has to be paid.

The „Commercial-Edition“-License is non-transferable. Any attempt to share or transfer a licence without the consent of Paessler shall be a violation of this license agreement and international copyright laws, and will result in the forfeit of all benefits and rights as a user.

A. Single- and Multi-user license

The customer purchases a certain number of licences according to the confirmation of order. The customer is only allowed to install and use the maximum number of purchased licences simultaneously. This means the customer may only use the modules contained within the software for which the customer has paid a license fee and for which the customer has received a product authorization key from Paessler.

If the number of licenses allowed to be use simultaneously is exceeded, Paessler  has to be informed and the exceeded number of installations have to be prevented through suitable means.

If the exceeded number of installations can not be prevented by organizational oder technical means, the customer is obliged to purchase the relevant number of licences.

B. Site- License

Paessler grants the customer the right and license to install and use the software on multiple computers for one or more users.

This license, however, is restricted to the use within one location (site). In the case of the software being used in other locations than those agreed upon, the customer is obliged to pay the license fee due for the location-license as a compensation.

C.Verification

The customer grants Paessler or its independent accountants the right to examine the customer´s books, records, and accounts during the customer's normal business hours to verify compliance with the above provisions.

2. “Trial-Edition”

"Trial Edition" means a free-of-charge-version of the software to be used only to review, demonstrate, and evaluate the software. The Trial-Edition may have limited features, and /or will cease operating after a pre-determined amount of time, due to an internal mechanism within the Trial-Edition.

No maintenance is available for the Trial-Edition.

The software may be installed on multiple computers for private and commercial use.

The software may be transferred to third parties (e.g. on homepages or ftp-servers) as long as the program remains unchanged and is offered free of charge. A chargeable transfer of the “Trial-Edition” (chargeable download, CD in Magazins) requires previous written permission by Paessler.

§ 6 RESTRICTIONS

Software under these General Terms and Conditions is confidential and copyrighted. The title to the software and all associated intellectual property rights are retained by Paessler.

The customer may not modify, decompile, or reverse engineer said software.

The customer may make archival copies of the software.

§ 7 MAINTENANCE

Object of the Maintenance Agreement is the maintenance of the “Commercial-Edition-Software” according to the confirmation of order.

1. Scope of Maintenance

The customer is granted the opportunity of downloading the current version of the purchased Commercial-Edition-Software and requesting a license-key anew for the duration of the Maintenance Agreement.

The customer will receive support for the duration of the Maintenance Agreement.

2. Duration

The Maintenance Agreement has a duration of 12 months and may be prolonged.

3. Beginning

The Maintenance Agreement starts with the sending of the affirmation of contract. The affirmation includes the download-link and the licence-key of the software.

4. Prolongation

Prolongation may only take place until the end of the duration of the Maintenance Agreement.

§ 8  PRICE

All levies, dues, taxes, duties, and other charges shall be borne by the customer.

§ 9 PAYMENT

The payment to be made by the customer is in any event due at the time delivery of the software is effected. The due time for payment arises without any further precondition.

The payment to be made by the customer is to be transferred as stated on the invoice to the banking account of Paessler without deduction and free of expenses and costs for Paessler.

In the event of delay in payment the customer will pay to Paessler - without prejudice to compensation for further losses — the costs of judicial and extra judicial means and proceedings as well as interest at the rate of 5 % over the base interest rate of the European Central Bank.

§ 10 LIMITATIONS FOR CUSTOMERS IN THE UNITED STATES AND UNITED STATES TERRITORY

1. LIMITED WARRANTY

Paessler warrants that for a period of ninety (90) days from the date of download the software files will be free of defects as regards the product under normal use. Except for the foregoing, software is provided "AS IS". The customer´s exclusive remedy and Paessler's entire liability under this limited warranty will be at Paessler's option to replace software media or refund the fee paid for the software. Any implied warranties on the software are limited to 90 days.

2. DISCLAIMER OF WARRANTY

UNLESS SPECIFIED IN THESE GENERAL TERMS AND CONDITIONS, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE DISCLAIMED, EXCEPT TO THE EXTENT ALLOWED BY APPLICABLE LAW.

3. LIMITATION OF LIABILITY

IN NO EVENT WILL Paessler BE LIABLE FOR ANY LOST OF REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF Paessler HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT TO THE EXTENT ALLOWED BY APPLICABLE LAW.

In no event shall Paessler's liability to the customer, whether in contract, tort (including negligence), or otherwise, exceed the price paid by the customer. The foregoing limitations shall apply even if the above-stated warranty fails its essential purpose.

If the Terms above are not  applicable to the customer the following Limitations apply.

§ 11 INTERNATIONAL LIMITATIONS

1. Conformity of the Software

The software does not conform with these General Terms and Conditions if at the time the risk passes it is clearly different to the specifications, or in the absence of specifications, the software is not fit for the usual purpose.

Paessler is particularly not liable for the software being fit for a particular purpose to which the customer intends to put it or for the software´s compliance with the legal requirements existing outside the Federal Republic of Germany.

2. Examination and Notice of Lack of Conformity

The customer must examine the software as required by law.

The customer shall give notice of any lack of conformity to Paessler as required by law, in any event directly and in writing and by the quickest possible means by which delivery is guaranteed (e.g. by telefax).

3. Consequence of Delivering non-conforming Software

Following due notice of lack of conformity, the customer can rely on the remedies provided for by the UN Sales Convention in regard to the terms laid down in these General Terms and Conditions. In the event of notice not having been properly given, the customer may only rely on the remedies if Paessler has fraudulently concealed the lack of conformity.

The customer is entitled to demand delivery of substitute software or repair or reduction of the purchase price as set forth in and in accordance with the terms of the UN Sales Convention.

Irrespective of the customer's remedies, Paessler is entitled to repair non-conforming software or to supply substitute software.

4. Third Party Claims and Product Liability

A. Third Party Claims

Without prejudice of further legal requirements, third parties' rights or claims founded on industrial or other intellectual property only found a defect in title to the extent that the industrial and intellectual property is registered and made public in the Federal Republic of Germany.

The customer's claims for defects in title including those founded on industrial or intellectual property will be time-barred according to the same rules as the claims for delivery of non-conforming software.

Third parties not involved in the conclusion of contract based on these General Terms and Conditions in particular those purchasing from the customer, are not entitled to rely on any remedy provided for in this General Terms and Conditions or to raise claims against Paessler, founded on delivery of non-conforming software or defect in title.

B. Product Liability

Without prejudice to Paessler's continuing legal rights and waving any defense of limitation the customer will indemnify Paessler without limit against any and all claims of third parties which are brought against Paessler on the ground of product liability, to the extent that the claim is based on circumstances which are caused after risk passed by the customer.

5. Damages

A. Obligation to Pay Damages

Paessler is only obliged to pay damages pursuant to these General Terms and Conditions if it deliberately or in circumstances amounting to gross negligence breaches obligations owed to the customer. This limitation does not apply if Paessler commits a fundamental breach of its obligations.

Without prejudice to its continuing legal rights, Paessler is not liable for a failure to perform any of its obligations if the failure is due to impediments which occur, e.g. as a consequence of natural or political events, acts of state, industrial disputes, sabotage, accidents, or similar circumstances and which can not be controlled by Paessler through reasonable means.

The customer is required in the first instance to rely on other remedies and can only claim damages in the event of a continuing deficiency.

B. Amount of Damages

In the event of contractual or extra contractual liability Paessler will compensate the loss of the customer to the extent that it was foreseeable to Paessler at the time of the formation of the General Terms and Conditions.

§ 12 MISCELLANEOUS

1.Set off, Suspending Performance

Legal Rights of the customer to set-off against claims of Paessler for payment are excluded, except where the corresponding claim of the customer has either been finally judicially determined or recognized by Paessler in writing.

2. Place of Performance

The place of performance and payment for all obligations arising from the legal relationship between Paessler and the customer is Fürth (Germany).

3. Applicable Law

The legal relationship with the customer is governed by the United Nations Convention of 11 April 1980 on General Terms and Conditions for the International Sale of Goods (UN Sales Convention) in the English version.

Outside the application of the UN Sales Convention, the contractual and non-contractual legal relationship between the parties is governed by the non-uniform German law, namely by the BGB/HGB (German civil and commercial code).

4. Jurisdiction

The parties submit for all contractual and extra-contractual disputes arising from these General Terms and Conditions to the local and international exclusive jurisdiction of the courts having jurisdiction for Fürth (Germany).

5. Communication

All communications, declarations, notices, etc. are to be drawn up exclusively in the German or English language. Communications by means of e-mail or fax need to fulfill the requirement of being in writing.

6. Severability

If provisions of these General Terms and Conditions should be or become partly or wholy void, the remaining conditions continue to apply.