Software License Terms
By installing, copying or other kinds of use of TraceTronic’s software you will agree to comply with these Software License Terms.
1 Rights of Use (license)
1.1 Upon payment of the invoiced amount in full, TraceTronic is granting to its customer a non-exclusive right to use the software and documentation, which is transferable subject to the conditions in section 1.7 only.
These Software License Terms will also apply, if customer will obtain new versions, updates, upgrades, patches, enhancements or other changes to the software. Bespoke developments of the software for individual customers will be subject to other terms and conditions, which shall be mutually agreed upon between the parties.
1.2 TraceTronic is granting to its customer a right to use without any time limit (perpetual license), except as otherwise agreed upon between the parties (e.g. term of the license).
1.3 TraceTronic is offering the following license types for its different kinds of software:
- „Dongle-license“: it allows the use of one copy of the software on a single computer of customer, without being bound to a specific computer. A dongle plugged into the USB-port of this computer will authorize the use of the software on this computer. A “dongle” is a piece of hardware, which will be connected to the computer and which will serve as a copy protection or digital rights administrator in order to ensure the authentication of the installed software.
- „Node-locked license“: it allows the use of one copy of the software and is bound to a specific computer. The customer is entitled to install and use each copy of the software on one specific computer only.
- „Floating network license“: it allows the use of one or more copies of the software on several computers of customer. The concurrent use is only limited by the number of the purchased licenses on the license server. The Floating Network license is authorising the use of the software by means of the license servers and license data files.
Except as otherwise expressly agreed with TraceTronic, Floating Network licenses may only be used in the respective country (or in the respective time zone of bigger countries), in which they have been purchased. The use of a centrally installed license outside of the country of installation is prohibited.
- „Evaluation license“: it allows the installation and use of a defined number of copies of the software only for evaluation and test purposes. It is granted for an agreed period of time only and is subject to the following conditions:
- It may neither be transferred to third parties nor to other affiliated companies, nor may it be used for contract work or in other ways for the benefit of third parties.
- Any test results generated with the evaluation license may only be passed by customer to third parties with the prior written consent of TraceTronic.
- As the evaluation license is granted for free, the software is provided „as is“, any claims for defects (warranty) according to section 2 shall be excluded and TraceTronic shall only be liable for intent and gross negligence.
- After expiry of the agreed duration of the evaluation license the customer will have to deinstall the software and report the deinstallation to TraceTronic in writing.
1.4 The amount of the license fee is dependent on e.g. the duration of the license and the agreed license type.
1.5 The customer shall only be entitled to duplicate/copy the software and documentation, as far as this is necessary for the intended use (e.g. installation of the software and loading it into the memory) and/or for the creation of a back-up copy.
Depending on the license type the software is including a protective mechanism, which shall protect the software against unauthorized use. The customer shall not be entitled to bypass this protective mechanism (e.g. by using technical means, like hard- or software, in order to remove, bypass or change it), nor shall it be entitled to copy the software or bypass the protective mechanism by using a virtual machine or by indirectly using a device server or other network techniques (e.g. by running the software on a server in order to automatically generate or provide code).
1.6 The customer shall only be entitled to change the software and accompanying documentation with prior written consent by TraceTronic. However, the customer shall be entitled to generate modules and to incorporate them into the software by using interfaces, which have been designed and documented to do this. The customer shall not be entitled to create derivative works of the software or, except for its own personal use, to copy, translate, modify or create derivative works of the documentation.
In addition, the customer shall not be entitled to reverse engineer the object code of the software into source code, to decompile or otherwise reveal it, except if expressly allowed by applicable laws (e.g. para. 69 e German Copyright Act). Copyright notices, serial numbers or other labeling of the software may not be removed.
1.7 The customer shall be entitled to sell the license right acquired from TraceTronic in executable form (object code, not source code) to other users, provided, however, that TraceTronic will agree in writing, that customer will waive its right to use the software and that the other party will confirm to TraceTronic in writing to protect the software and to acknowledge the agreed scope of license for the software.
Except as otherwise expressly agreed with TraceTronic, customer shall only be entitled to transfer to third parties the rights to use the software as a whole and not in parts.
1.8 Regarding software of third parties, which are included in the delivery of TraceTronic (third party software), the third party license terms, which are accompanying the third party software, shall apply with preceding effect. These Software License Terms shall only apply with supplementary effect.
2 Customer's Rights in Case of Defects (warranty)
2.1 TraceTronic is warranting that the delivered goods will conform to the functional and performance features as described in the applicable product description or as expressly agreed upon between the parties. Any technical data or quality descriptions issued by TraceTronic shall not be regarded as explicit warranties, unless expressly confirmed as such by TraceTronic.
The customer shall be advised that, according to the current technical level of development, defects in software can not totally be excluded. Any repair of the software will be conducted by the delivery of updates, which will include the correction of errors detected by customer or by TraceTronic. The customer agrees that the development of updates will consume an adequate period of time.
2.2 In case of a defect TraceTronic will – at its option - correct the defect, e.g. in the form of delivery of a software update, or will take back the goods and refund the payments made by customer. Before providing TraceTronic with the defective goods, customer will ensure that all data and programs will be stored on a separate data medium, in order to enable a reinstallation at the customer’s own account and own risk, if necessary at a later stage. Any new or additional functionalities, which might be provided for free in connection with the error correcting updates, will not be subject to warranty, except as otherwise agreed upon between the parties. TraceTronic is not warranting that the provided software will fulfil specific requirements of customer and that the accompanying documentation and manuals will describe in detail all parts of the software. TraceTronic will perform the warranty work at its discretion and at its account either at customer’s or at TraceTronic’s site. The customer shall be entitled to request the withdrawal from the contract or an adequate reduction of the purchase price only if TraceTronic failed to remedy the defect within an adequate grace period set by customer in writing.
2.3 Before asserting its warranty claims, customer shall be obliged to give a detailed description of the defect to TraceTronic and to use all available diagnosis tools – including telephone support by TraceTronic – to create this description. Any error reports shall be recorded in writing and any system status shall be specified in writing.
2.4 The customer’s warranty claims according to section 2.2 shall become statute-barred within twelve (12) months of the date of delivery. This time limit shall not apply in the event of intent or gross negligence or injury to life or health or personal injury.
The customer shall not be entitled to claim warranty in the event that the goods have been modified, improperly installed, maintained, repaired, or used in an environment which does not comply with the requirements for installation, unless customer can prove that aforesaid circumstances have not caused the notified defect.
2.5 Any transfer of the warranty claims by customer is subject to prior written consent by TraceTronic.
2.6 If the verification of a notified defect shows that no defect has occurred, the costs of verification and repair will be invoiced on a time and materials basis.
3 Intellectual Property Rights of Third Parties
3.1 TraceTronic will at its own expense defend customer against claims that the software, if used as provided in the contract, infringes an intellectual property right or copyright and will indemnify customer against all costs and damages attributable exclusively to such claims, if awarded by a court finally determining the case or by a settlement, which had been previously approved by TraceTronic. This shall only apply provided that customer gives to TraceTronic (i) prompt written notice of the claim, and (ii) sole control of the defense and settlement of the claim. The customer shall be obliged to support TraceTronic.
3.2 As a protection against such claims TraceTronic will obtain the necessary right to use or will modify or replace the respective components. If this is reasonably not achievable, customer agrees that it will return the software to TraceTronic upon request. In such case TraceTronic will refund the purchase price less net benefits realized by customer and will compensate damages within the limits of section 4 (liability).
The aforementioned obligations of TraceTronic to customer are its exclusive obligations regarding intellectual property rights of third parties.
3.3 Any claims against TraceTronic shall be excluded if and as far as they are caused by the software
- having been modified by customer or
- being used in combination with other software, hardware, data or other products, which have not been delivered by TraceTronic, or being transferred to or used for the benefit of third parties, which are not affiliated with customer.
4.1 TraceTronic shall be liable for damages (i) caused by it through intentional act or gross negligence, (ii) arising from personal injury, injury to health or life, (iii) for which the Product Liability Act provides for compulsory liability and (iv) in cases in which it guaranteed the state and condition of the subject matter of the contract.
4.2 TraceTronic shall not be liable for damages caused by slight negligence. However, TraceTronic shall be liable for a slightly negligent breach of material contractual duties causing personal injury up to a maximum amount of € 500.000 (in words: five hundred thousand Euro) and causing damage to property and financial damage up to a maximum amount of € 100.000 (in words: one hundred thousand Euro).
TraceTronic’s liability for indirect damages and consequential damages (including loss of use and lost profit) shall be excluded, unless in the cases referred to in section 4.1.
4.3 As a major contractual duty, customer assumes the obligation to back up data at adequate intervals on a regular basis, at least once daily, and thus to assure that they can be reconstructed with reasonable efforts. In the event of a loss of data for which TraceTronic is responsible, TraceTronic shall be liable for reconstruction only in the amount of the expense that is incurred if customer has performed the aforesaid data back-ups.
5.1 No modification or amendment to a contract will be binding unless in writing. This applies also to any change or waiver of this requirement of written form.
5.2 If any provision contained in these terms is held invalid or incomplete, such invalidity will not affect the enforceability of any other provisions. The invalid provision shall be deemed to be replaced by an appropriate provision which comes closest to the parties' legal and economic intent without being invalid.
5.3 The fees and prices charged by TraceTronic are exclusive value added tax and other applicable taxes and banking fees, which shall be reimbursed by customer in addition.
If customer in case of international payment transactions is required to withhold or deduct any portion of the payments due to TraceTronic, customer will increase the sum payable to TraceTronic by the amount necessary so that TraceTronic receives an amount equal to the sum it would have received had customer made no withholdings or deductions.
5.4 All disputes will be governed by the laws of the Federal Republic of Germany. The Convention on Contracts for the International Sale of Goods, dated April 11, 1980, shall be excluded.
5.5 The place of fulfillment shall be Dresden. In case of claims arising from or in connection with this agreement, the courts in Dresden shall have exclusive jurisdiction, provided that customer is a merchant as defined by the German Commercial Code, a juridical person under public law or a special fund under public law. However, each party shall be entitled to initiate litigation or other legal proceedings at the general place of jurisdiction or at the seat of the other contractual party.
Version 2.0 | September 2015