General License Terms and Conditions
The following General Terms and Conditions and General License Terms can be downloaded from Paessler AG's website and be printed: http://www.paessler.com/company/terms. Upon request to firstname.lastname@example.org Paessler AG will provide you with a digital or written version.
Information about Paessler AG:
Bucher Str. 79a
CEO/ COO: Dirk Paessler, Christian Twardawa
Supervisory Board: Dr. Marc Rössel (Chairman), Heinz Raufer, Jens Rupp
Registration Court: Amtsgericht Nürnberg, Registernummer HRB 23757
VAT-ID: DE 217564187
Paessler AG operates a website under the domain of http://www.paessler.com for commercial purposes. Software-download is being offered via Internet.
A. General Terms
§ 1 Scope of Application
The following General License Terms and the following General Terms and Conditions are only applicable to business with customers, if Paessler AG offers or renders goods or services. Therefore they are not applicable for business, where Paessler AG has placed an order or is purchasing goods or services.
§ 2 Exclusive Validity of these Terms
Any distribution of software and all services or goods in connection therewith are being rendered exclusively on the basis of the following terms. Deviating terms of the customer only become contractual basis when confirmed in writing by Paessler AG. Even if those are not objected expressly, this does not constitute a tacit consent by Paessler AG. The following terms are applicable for current and also future services and goods rendered, even if Paessler AG does not expressly refer to them. By conclusion of the contract the customer accepts these terms.
§ 3 Right of revocation
Statutory right of revocation for a consumer in terms of § 13 BGB (German Civil Code) - if applicable in terms of international contracting:
1. Right of Revocation
You may declare the revocation of your contractual statement in text form (e.g. letter, fax, email) or by returning the product within a period of 2 weeks. The revocation does not have to specify any cause for the revocation. The revocation period commences the day following the receipt of the product and this revocation instruction in text form, but not before conclusion of the contract and not before receipt of the product and also not before we have fulfilled our duties to provide information according to Art 246 § 2 in conjunction with § 1 sec. 1 and 2 EGBGB as well as our obligation arising from § 312e sec. 1 sentence 1 in conjunction with Art. 246 § 3 EGBGB.
To comply with the revocation period the timely dispatch of the revocation or the product is sufficient. The revocation shall be addressed to:
Bucher Str. 79a
2. Effects of Revocation
In case of a valid revocation, all mutually received performances as well as emoluments taken (e.g. interest), if applicable, are to be restituted by either side. If you are unable or partially unable to restitute the product to us or can only restitute it in a deteriorated condition, you have to compensate insofar for its minor value where applicable. This does not apply if the deterioration is exclusively due to examination of the product - as for instance in a retail store - or putting the product to its intended use. Generally you can avoid the duty of compensation for this detoriation by not putting the product to use as if you were proprietor and omit everything that might affect its value.
Goods shippable by parcel are to be returned on our risk of transportation. You are obliged to bear the costs of the return shipment, if the product delivered corresponds to the product ordered, and if the purchase price of the product to be sent back does not exceed an amount of forty (40) euros or if, where the price is higher, you have at the date of the revocation not yet rendered consideration or given a part payment. In all other cases, the return shipment is free of charge for you. Products that cannot be shipped by parcel will be picked up. All reimbursement obligations must be fulfilled within thirty (30) days of the declaration of revocation. If you have to reimburse us this period commences with the dispatch of the declaration of revocation or the product. If we have to reimburse you it commences with our receipt of the returned product.
The customer can download from the website of Paessler AG an unlimited 30-day-trial-version and test the software at no charge.
3. Special Indication
The right of revocation expires prematurely, if with the customers express consent Paessler AG starts to render the service or the good before the revocation period ended or if the customer initiated this himself (e.g. by downloading).
§ 4 Right of Withdrawal
In addition to a potential statutory right of revocation Paessler AG grants a 30-day right of withdrawal.
If you are not satisfied with the software, we will within the first 30 days after your purchase reimburse 100% of the purchase price - no matter what the reason is. This 30-day right of withdrawal is only granted customers who are a consumer or a commercial end-customer. Therefore it is not applicable to resellers.
§ 5 Conclusion of Contract
The contractual language is English. Any offer of Paessler AG on the website is subject to change without prior notice. Therefore Paessler AG is not obligated to perform if the service or the good is not available. A conclusion of contract and therefore a contractual obligation to perform shall arise, if Paessler AG has confirmed the customer's order in text form. The confirmation of order-receipt is not a confirmation of the order itself. Generally the delivery is being performed by download. In that case the conclusion of contract commences by sending the contract-confirmation by email along with the download link and the key to unlock the software. These terms are also included in the contract-confirmation.
§ 6 Value Added Tax
Delivery within Germany: the price displayed in the invoice includes VAT
Delivery within the EU: if a VAT-ID. is provided, the prices are net. The respective VAT has to be paid by the customer.
Delivery outside of the EU: the prices shown on the invoice are net, VAT is not applicable.
§ 7 Payment Terms
1. The Payment is due in total upon receipt of the invoice
2. A cash-discount-deduction requires a prior written consent of Paessler AG.
§ 8 Limited Warranty, Limited Liability
The following terms apply for NON-US CUSTOMERS:
A. Limited warranty
1. It can not be warranted, that the software is compliant with the customer's purpose and the customer's hard- and software.
2. Although Paessler AG created the software with diligence and expert knowledge, the contractual parties are aware that according to current state of the art it is not possible to create 100% defect-free software. The customer is therefore obligated, not only to comply with his duty to mitigate damage, to completely backup his data in appropriate regular intervals, before the initial installation and before update installations of the software and immediately when any indication of defect occurs.
3. The agreed character of the product is being defined by the product specifications. Insofar a product specification is not given, the character of the product shall be deemed to be of average character and quality.
4. No warranty claim shall be given, if a deviation of the agreed character is only insignificant or the usability is only slightly affected. Paessler AG might carry out improvements at any time.
5. The documentation will only be updated when significant changes arise and will be provided by download from Paessler AG's website.
6. Paessler AG is entitled to choose in its own discretion if a defect shall be remedied by way of fixing or delivery of a new product, e.g. the customer's software be updated or a new software be delivered.
7. The customer is obligated to cooperate in remedying the defect, especially by downloading and installing an update.
8. In the best of Paessler AG's knowledge the software is free of third persons' intellectual property rights, which could affect or exclude the customer's contractual use of the software. The customer is obligated to immediately inform Paessler AG of any indication of claims arising from an alleged violation of such intellectual property rights. Upon request the customer is also obligated to leave the defence against these claims to Paessler AG and, when requested, to support Paessler AG to a reasonable extent. In case an infringement of third parties' intellectual property rights by the performance of Paessler AG be established legally binding, Paessler AG will at its own discretion and cost either obtain the according license for the use of the violated intellectual property rights for the customer or alter the performance in such a way that the violation is ended but the software still complies to the contractual specifications. In case both remedies imply disproportionate costs and / or expenditure, Paessler AG is entitled to withdraw from the contract and will then restitute performances obtained from the customer and, where required, compensate the customer for damages incurred.
9. The defects liability period is one year. Claims arising out of defects prescribe after one year beginning with their coming to existence.
10. In case the customer lodged a defects liability claim against Paessler AG and it emerges that either there was no defect or Paessler AG is not liable for the defect, the customer has to compensate Paessler AG for all incurred expenses.
11. The remedy of defect by way of fixing the product shall be deemed to have failed when attempted vainly the second time. The customer then may at its own discretion either abate or withdraw. The customer's right to claim compensation for damages according to these terms and conditions remains untouched.
12. The examination and notification duties according to § 377 HGB (German Commercial Code) are applicable. The customer can not base a claim on detected defects not given notice of to Paessler AG immediately.
13. The customer shall illustrate the defect as precisely as possible.
14. The customer is obligated to take measures supporting the identification of the defect and its cause to a reasonable extent.
15. Instead of the aforementioned subsections 6, 9 and 12 the statutory regulations apply if the customer is a consumer in terms of § 13 BGB (German Civil Code).
B. Limited Liability
Paessler AG is liable for damages arising from personal injury (culpable injury of life, body, health). This also applies for other damages arising from a deliberate or gross negligent violation of duties. Paessler AG is also liable for damages arising from a slight negligent violation of an essential contractual duty and which are a typical consequence with respect to this type of contract. The latter liability is limited to the sum of three times the license fee. Paessler AG's liability for all other damages, which are not caused deliberately or gross negligently, is excluded. An essential contractual duty is given, if its fulfilment forms a precondition for the proper performance of the contract and in which fulfilment the customer normally relies on legitimately. A liability according to the Produkthaftungsgesetz (German Product Liability Code) remains unaffected.
The following terms apply for US-CUSTOMERS ONLY:
BEGIN of regulations concerning US-customers only.
BEGIN of regulations governed by the Law of Massachusetts.
This license contains rights and restrictions associated with the use of the software. The following regulations concerning Limitation of Warranty and Limitation of Liability shall be governed under and construed pursuant to the laws of the Commonwealth of Massachusetts, without reference to choice of law principles.
A. Limitation of Warranty
1. Paessler AG warrants that it has the full power and authority to enter into this agreement and to grant the licenses described in this agreement.
2. Paessler AG warrants that for a period of six months after the customer accepts the terms of this agreement, the media, if any, on which the software is delivered, will be free from defects in material and workmanship under normal use. If any media is found to be defective during the warranty period, Paessler AG will replace the defective media.
3. Paessler AG warrants that for a period of two months after the customer accepts the terms of this agreement, the software will perform substantially as described in specifications for the software, including any user manuals and technical documentation. If a defect in the software causes the software not to perform according to this warranty, Paessler AG will use reasonable efforts to promptly correct such defects. If Paessler AG is unable within a reasonable period of time to correct such defects, customer may, at his option, and his sole remedy, terminate the license and return the software, including all related documentation, to Paessler AG and receive a full refund of any license fees paid for the software.
4. Limitations of Warranty. Paessler AG does not warrant that the operation of the software will be uninterrupted or error free. Furthermore, Paessler AG does not warrant that the functions contained in the software will meet customer's requirements.
5. Disclaimer. Software is provided "AS IS," without a warranty of any kind, except as set forth above. PAESSLER AG DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
B. Limitation of Liability
1. PAESSLER AG will not be liable to CUSTOMER for any incidental, consequential, or special damages arising under this Agreement. Paessler AG will not be liable for any amount of damages in excess of (i) 5,000 USD or (ii) the cumulative license fees paid or payable under this Agreement, whichever is greater. This limitation will not apply to damages related to injuries to persons or damage to tangible personal property resulting from the negligence or willful acts of Paessler AG.
2. Customer will not be liable to Paessler AG for any incidental, consequential, or special damages arising under this Agreement. Customer will not be liable for any amount of damages in excess of (i) 5,000 USD or (ii) the cumulative license fees paid or payable under this agreement, whichever is greater. This limitation will not apply to damages related to injuries to persons or damage to tangible personal property resulting from the negligence or wilful acts of customer.
END of regulations concerning US-customers only.
END of regulations governed by the Law of Massachusetts.
§ 9 Limitation of Time
1. The limitation period for claims arising from deficiency as to quality as well as title - no matter of which legal basis - is one (1) year.
2. The limitation period according to subsequence 1 also applies to claims for compensation for damages, no matter of which legal basis. It also applies if the claim is not connected to a defect.
3. The limitation of time according to subsequence 1 and 2 applies with the following preconditions:
a) The limitation of time does not apply if the damage was caused deliberately.
b) The limitation of time does not apply to claims for compensation for damages of life, body or health, claims arising of a culpable violation of essential contractual duties or claims according to the Produkthaftungsgesetz (German Product Liability Code).
B. License Terms
§ 1 Scope of Application
These General License Terms apply exclusively if the customer is an entrepreneur. The statutory regulations instead of the following regulations apply if the customer is a consumer in terms of § 13 BGB (German Civil Code).
These General License Terms govern exclusively the right to use and the maintenance of the software of Paessler AG.
Site: Defined as territorially limited area (e.g. campus, premises) of which the diameter does not exceed 6.21 miles (10 kilometres), and which is used exclusively by the customer;
Customer: Contract partner who licensed Paessler AG's software;
User: Person working with the software.
§ 3 License Grant
Paessler AG grants to the customer a non-exclusive perpetual license to use the software in the given amount and under the conditions of these License Terms. The documentation will be provided in electronic form. The delivery of the software will be effected in object code. Paessler AG will not deliver source code.
The "Commercial-Edition" is intended to be used exclusively by the customer. For the grant of the license a fee has to be paid. The „Commercial-Edition"-License is non-transferable. Any attempt to share or transfer a licence, e.g.by resale or lease, without the prior consent in text form by Paessler AG is prohibited.
a. Single-User and Multi-User License
The customer purchases a certain number of licences according to the order-confirmation. The customer is only entitled to install and use the purchased number of licenses simultaneously. The license key might be used to install a failover node in a cluster on a second computer. In case the granted amount of simultaneous installations is exceeded, Paessler AG has to be informed thereof immediately and the exceeding installations have to be prevented by adequate measures. Can this exceedance not be prevented by such technical or organizational measures, the customer is obligated to purchase the according amount of licenses.
The software is restricted to be installed within one (1) site in one country, but on any quantity of computers and might be used by one or more users simultaneously. The limitation of its use is solely defined by the territory of the site. In case the software is being used culpably outside of the site, the customer is obliged to pay a flat-fee compensation in the amount of the license-fee paid for the site-license. Paessler AG's right to claim compensation for damages exceeding the amount of the fee for the site-license remains untouched. However, the customer is entitled to give evidence for Paessler AG's damage being less than the fee for the site-license.
The software (i.e. core servers and remote probes) might be installed on any quantity of computers within one country and used by one or more users on one or more sites within that country, if the customer is possessor of all the computers and operates them himself for his commercial purposes. The corporate-license does not cover running core servers and/or remote probes on computers, which are operated for third parties (e.g. if customer is an Managed Service Provider) or are used mainly by third parties (such as cloud computing, hosting providers, etc.).
2. Freeware, Trial-Edition & Special Edition
Paessler AG offers free-of -charge versions of the software with limited operating time and / or limited features. No maintenance is available for those versions. In case maintenance is being performed, this is only due to good-will, does not constitute any obligation for Paessler AG and might be stopped at any time. The freeware and the trial-edition might be installed and used on any amount of computers for private or business purposes at no charge. The freeware and the trial-edition might be shared to third persons (e.g. on websites or ftp-servers), if the software is being offered unaltered and free of charge. Any offer of the freeware, the trial-edition & special edition against any kind of payment, fees or similar (e.g. chargeable download, magazine-CD) requires a prior written permission of Paessler AG.
3. Clustering Feature
Additionally to the primary installation, single-user license keys may be installed as one fail-over node connected to the primary installation, regardless of the fail-over node's geographical location. One additional license key must be purchased to set up a 3- or 4-way cluster. For a 5-way cluster a third license key must be purchased.
License keys of site and corporate licenses may be configured as single instances or as single or multiple cluster nodes, according to the geographical and legal limitations set by the respective license. Additionally, such a license key may be installed on not more than one fail-over node that is connected to one of these installations regardless of the fail-over node's geographical location. For any two additional cluster nodes outside the geographical and legal limitations set by the respective license additional single-user license keys must be purchased.
§ 4 Activation
1. Some software-products of Paessler AG need to be activated for use via internet or email. Without activation the customer cannot use the software.
2. By activation a unique ID of the computer the software is installed on is being sent to Paessler AG to allocate the software to a certain computer. This shall help to prevent any multiple use of the software not in accordance with the license terms. Activation does not transfer any personal data enabling the identification of the computer user or the computer.
3. The acquired data is solely used for activation-purposes. Changes in the hardware or software of the computer do not affect a previously successful activation.
4.If a successfully activated installation of the software is moved to another computer a new activation for the new computer is necessary. Paessler AG may refuse the reactivation, if the customer does not account for the contractual use of the software.
§ 5 Scope of Use
1. Acts of Use
The right of use is limited to the following acts within the scope of contractual use:
> Installation of the software on the intended computer(s) and the production of a security backup; security backups on data storage mediums, which are normally intended to be circulated (such as CD, DVD), have to be marked with an indication of Paessler AG's intellectual property right and a prohibition of its transfer.
>loading of the software into the computer's RAM and its processing,
>necessary measures in terms of error-correction according to § 69d sec. 1 UrhG (German Copyright Code) and
>decompilation to achieve interoperatability according to § 69e sec. 1 UrhG
>production of a backup of the computer the software is installed on (Image)
2. Blocking device
The software is guarded by a technical device intended to block any illegitimate use or copying. The unlocking of this device is prerequisite for the operation of the software. The customer will be provided by Paessler AG with the unlockkey in the scope of the contractual use.
§ 6 Intellectual Property Rights
The software and its manual are copyrighted. All intellectual property rights in connection with them solely belong to Paessler AG. The customer may without permission of Paessler AG not use the software and its operation instructions beyond above mentioned acts, e.g. he may not alter, not transfer to another programming language, not copy (e.g. by further installations of the Software), not redesign, not circulate, not share or grant access to third persons the software, neither partially nor temporarily. Reverse engineering, de-compilation or disassembling are prohibited.
The license fee for the commercial-editions include 12 month of maintenance. When purchasing the License also maintenance for a longer period can be acquired.
Subject to maintenance is the software of the license type "commercial-edition" as displayed in the order confirmation.
§ 1 Maintenance Services
During the period of the maintenance the customer is eligible to download the latest version of his purchased "commercial-edition" and to request to be provided with the according license key. During the period of maintenance the customer also receives technical support via the support-ticket-system of Paessler AG.
§ 2 Duration
The maintenance contract has a period of 12 month, if not agreed otherwise, and can be extended.
§ 3 Initiation of Support Period of Duration
The duration of the initial maintenance starts with dispatch of the contract-confirmation along with the download-link and the unlock-key for the software.
§ 4 Extension of the Maintenance
The maintenance can be prolonged at anytime. The maintenance-period is at all times being calculated out of the sum of the maintenance days since date of purchase of the software. If the extension is being effected after expiration of the previous maintenance period, the new maintenance period begins retroactive from the day on which the previous maintenance expired, even though this results in forfeit of a part of the acquired maintenance period.
§ 5 Availability
Paessler AG does not guarantee the permanent availability of its website, downloads (including updates, instruction-manuals, freeware, etc.), as well as support-systems. The customer is obliged to protect his installation-files and his license keys, as they are prerequisites for any reinstallation.
§ 1 Data Protection
1. Paessler AG complies with the effective data protection regulations according to the BDSG (German Data Protection Act).
2. The personal data acquired by Paessler AG serves to compile and carry out orders as well as invoices.
3. The customer is entitled to be informed of his personal data acquired by Paessler AG free of charge.
4. The customer is entitled to request correction, deletion or blocking of his personal data acquired by Paessler AG.
5. The customer is entitled to object the sending of product-information at any time.
§ 2 Offsetting
Any offsetting of claims of Paessler AG by the customer is only allowed if the customer's claim, with which Paessler AG's claim shall be set off, is undisputed or established by legally binding court rule.
§ 3 Place of Performance and Court of Jurisdiction
1. Place of performance is Nuremberg, Germany. If the customer is neither merchant in terms of the HGB (German Commercial Code), corporate body under public law, nor special fund under public law, the statutory regulations apply.
2. In case the customer is merchant in terms of the HGB (German Commercial Code), corporate body under public law or special fund under public law, exclusive jurisdiction for all disputes arising out of this contract or in connection with it shall be the relevant court of Nuremberg, Germany. The same applies if the customer has no place of general jurisdiction within the Federal Republic of Germany or if neither his place of residence nor his main residence is known to Paessler AG. Paessler AG remains entitled to file a suit or commence other legal measures at the customer's general place of jurisdiction. If the customer is neither merchant in terms of the HGB (German Commercial Code), corporate body under public law, nor special fund under public law, the statutory regulations apply.
§ 4 Choice of Law
Any dispute arising out of the contract or in connection with it shall be exclusively governed by the Laws of the Federal Republic of Germany. The CISG and the Choice of Law of Conflicts shall not apply.
§ 5 Severability Clause
If provisions of these General Terms and Conditions should be or become partly or wholy void, the remaining conditions shall remain effective.