A. General Terms
§ 1 Scope of Application
- These Terms and Conditions are only applicable to business with customers, if Paessler AG offers or renders goods or services to such customers. Therefore they are not applicable for business where Paessler AG has placed an order or is purchasing goods or services from a third party.
- These Terms and Conditions shall only apply vis á vis entrepreneurs within the meaning of sec. 14 BGB (German Civil Code). If the contracting party is a consumer within the meaning of sec. 13 BGB, the statutory rule shall apply instead of these Terms and Conditions.
- As used herein, the term “software” shall mean any Paessler AG computer software installed by customer on any servers or computers owned or controlled by customer or any software accessed and used via the internet as a service.
§ 2 Exclusive Validity of these Terms and Conditions; Individual Agreements
Any distribution of software and all services or goods in connection therewith are being rendered exclusively on the basis of these Terms and Conditions.
Deviating terms of the customer shall only become binding on the parties when confirmed in writing by Paessler AG and the customer. Even if those terms are not expressly objected, Paessler AG does not tacitly consent to such terms. These Terms and Conditions are applicable for current and future services and goods rendered by Paessler AG to customer, even if Paessler AG does not expressly refer to them. By conclusion of this contract, the customer accepts these terms.
Any terms agreed by the customer and Paessler AG in writing (including additional agreements, amendments and modifications) take priority over these Terms and Conditions.
§ 3 Right of Withdrawal
In addition to a potential statutory right of revocation, Paessler AG grants a 30-day right of withdrawal.
If the customer is not satisfied with the software, Paessler AG will within the first 30 days after the purchase reimburse 100% of the purchase price – no matter what the reason is. This 30-day right of withdrawal is only granted to customers who are consumer (“end user”). Therefore, it is, for example, not applicable to resellers or distributors.
§ 4 Conclusion of Contract
The contractual language is English. Any offer of Paessler AG on the website is subject to change without prior notice. 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 writing. The confirmation of order-receipt is not a confirmation of the order itself. Generally, the delivery of the software shall be performed by download. In that case, the contract commences on the date Paessler AG sends 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.
§ 5 Value Added Tax
For delivery within Germany: the price displayed in the invoice includes VAT.
For delivery within the EU: if a VAT-ID is provided, the prices do not include VAT. The respective VAT shall be paid by the customer.
For delivery outside of the EU: the prices shown on the invoice do not include. VAT is not applicable.
§ 6 Payment Terms
- The Payment is due in total on the date of receipt of the invoice.
- Any cash-discount or deduction from the purchase price is only valid if Paessler AG agrees to such in writing.
- All charges, expenses or fees associated with the payment shall be paid by the buyer. Paessler must receive the full invoice amount.
§ 7 Limited Warranty, Limited Liability
The following terms apply for NON-US CUSTOMERS:
A. Limited warranty
- Paessler AG does not warrant that the software is compliant with the customer’s purpose or the customer’s hardware or software.
- Although Paessler AG created the software with diligence and expert knowledge, the 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 to comply with its duty to mitigate damage and to completely backup data in appropriate regular intervals, before the initial installation and before update installations of the software and immediately when any indication of defect occurs.
- 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.
- Customer is not entitled to make a warranty claim if a deviation of the agreed character is only insignificant or the usability is only slightly affected. Paessler AG may provide improvements to the software at any time.
- The documentation will only be updated when significant changes are made to the software and will be provided by download from Paessler AG’s website.
- 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 may be updated or a new software may be delivered.
- The customer is obligated to cooperate in remedying the defect, for example, by downloading and installing an update.
- To the best of Paessler AG’s knowledge, the software does not infringe on the intellectual property rights of a third party. The customer shall immediately inform Paessler AG of any claims arising from an alleged violation of such intellectual property rights. Paessler AG shall have the sole right to defend any such claim, and, when requested, customer shall provide reasonable support to Paessler AG’s defense, at the sole cost and expense of Paessler AG. In case an infringement of third parties’ intellectual property rights, Paessler AG may at its own discretion and cost either obtain a license for the use of the violated intellectual property rights for the customer or alter the performance of the software in such a way that the violation is ended but the software still complies to the contractual specifications. In case both remedies are not commercially reasonable, Paessler AG is entitled to withdraw from the contract and refund customer the fees customer for the software on a straight-line five year depreciated basis.
- The warranty period is one year (pursuant to § 9 subsection 3). Claims arising out of defects prescribe after one year beginning with their coming to existence.
- If customer lodges a warranty claim against Paessler AG and after investigation it is determined that there was no defect or Paessler AG is not liable for the defect, the customer shall compensate Paessler AG for all incurred expenses.
- Paessler AG shall be deemed to have failed remediated a software defect by way of fixing, if Paessler AG fails to cure such breach after its second attempt to deliver a fix. After such time, customer may at its own discretion either abate or withdraw. In such event, the customer’s right to claim compensation for damages according to these terms and conditions remains untouched.
- The examination and notification duties according to § 377 HGB (German Commercial Code) are applicable. The customer cannot base a claim on detected defects if customer has not given immediate notice of such defect to Paessler AG.
- The customer shall illustrate the defect as precisely as possible to Paessler AG.
- The customer shall to take measures supporting the identification of the defect and its cause, to a reasonable extent.
B. Limited Liability
Paessler AG shall be liable for damages arising from personal injury (culpable injury of life, body, health). This also applies for other damages arising from willful misconduct or grossly negligent violation of duties. Paessler AG is further liable for damages arising from a 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 by willful misconduct or gross negligence, are 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.
These terms and conditions 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, USA without reference to choice of law principles.
A. Limitation of Warranty
- 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.
- 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.
- Paessler AG warrants that for a period of two months after the customer accepts these terms and conditions, 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 or right to use the software and return the software or cease to use the software, including all related documentation, to Paessler AG and receive a full refund of any license fees paid for the software.
- Limitations of Warranty. Paessler AG does not warrant that the operation or availability 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.
- 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
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.
END of regulations concerning US-customers only.
END of regulations governed by the Law of Massachusetts.
§ 8 Limitation of Time
- 1 Subject to subsection 3, Customer may not bring any claims against Paessler AG arising from deficiency as to quality or title – no matter the legal basis –one (1) year after the date such claim arises.
- Subject to subsection 3, Customer may not bring any claims against Paessler AG for compensation for damages one (1) year after the date the claim for damages arises, no matter the legal basis. such limitation also applies if the claim is not connected to a defect.
- The limitation of time set forth in subsections 1 and 2 :
- a) does not apply if the damage was caused deliberately; and
- b) 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 Conditions
§ 1 Scope of Application
The License Conditions of section B exclusively govern the right to use of the software of Paessler AG.
§ 2 Definitions
The following terms shall have the meaning ascribed to them herein:
Site: means the territorially limited 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: means the contracting party who licensed Paessler AG’s software;
User: means a natural person using the software.
Failover Node: means a Core Server, which is capable of taking master position in a Cluster, when the Master Node is not available.
Master Node: means a Core Server, which is taking master position in a Cluster.
Cluster: mean the combination of a Master Node and several Failover Nodes to increase system reliability.
Core Server: means the central unit of a PRTG installation on which processing and storing of monitoring-data, notifications, user administration and the webserver are running.
Remote Probes: means the probes on other computers, which submit monitoring results to the core server.
Reverse Engineering: means analyzing the object code of the software with the aim of reproducing the source code of the software.
Decompilation: means translating backwards the unit code into a program code readable by human.
Disassembling: means transforming binary encrypted computer language of a executable program into an assembler language (hardware orientated programming language).
§ 3 License Grant / Right to Use
A. Paessler AG grants to the customer a non-exclusive, perpetual license to use the software in the given amount on servers or computers owned or controlled by customer and under these License Conditions. 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” shall be used exclusively by the customer. The license shall be effective only if the customer pays a fee therefor.
Customer may not share or transfer a license, e.g. by resale or lease, without the prior written consent of Paessler AG. Paessler AG reserves it’s right to seek damages for any breach of the foregoing.
a. Single-User and Multi-User License
The customer is entitled to use the number of licenses purchased by customer and identified on the order-confirmation. The customer may entitled install and use the purchased number of licenses simultaneously (except if Clustering feature is applicable, then § 3 no. 3 applies in addition).
If the granted number of licenses is exceeded, customer shall notify Paessler AG thereof immediately and customer shall prevent the exceeding installations from use of the software by adequate technical or organizational measures.
Should this exceedance not be prevented by such technical or organizational measures, the customer shall purchase licenses for all exceeding installations.
The software may only be installed within one (1) site in one country, but on any quantity of computers and may be used by one or more users simultaneously. This limitation of use is solely defined by the territory of the Site.
If the software is being used in violation of the foregoing restriction 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.
“Corporate Country License”
The software may be installed as Core Server 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 owns or operates all the computers for its commercial purposes.
“Corporate “n” Core Global License”:
The software may be installed as Core Server (including Master Nodes and Failover Nodes) on “n” computers within worldwide and used by one or more Users on one or more Sites, if the customer owns or operates all the computers for its commercial purposes.
Customer is not permitted to use the Core Servers and/or Remote Probes as computers operated for third parties 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. If maintenance is performed, it is performed at the discretion of Paessler AG and does not constitute any obligation for Paessler AG and may be terminated at any time. The freeware and the trial-edition may be installed and used on any number of computers for private or business purposes at no charge. The freeware and the trial-edition may be shared with third persons (e.g. on websites or ftp-servers), if the software is offered unaltered and free of charge. Any offer of the freeware, the trial-edition or special edition for any payment, fees or similar arrangement (e.g. chargeable download, magazine-CD) requires the prior written permission of Paessler AG.
3. Clustering Feature
In addition to the primary installation, single-user license keys may be installed as one Failover Node connected to the primary installation, regardless of the Failover 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. In addition, such a license key may be installed on no more than one Failover Node connected to one of these installations regardless of the Failover 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. PRTG Cloud
Some portions of the software may be available for access and use as services available from the PRTG Cloud. These hosted services provide notifications (e.g. via push technology) and monitoring. When a user activates such functionality either in the app or in the PRTG interface the PRTG core server connects to the PRTG cloud without further notice. In order to deliver notifications to the target device(s), Paessler AG stores data and transmits it to third parties (e.g., to Google, Apple, or Microsoft for push notifications). In order to perform monitoring tasks (e.g. Ping, http) Paessler AG stores hosts and URLs. If the customer selects one of these services, Paessler AG grants to the customer the right to access and use the services. Paessler makes no warranty that the access and use of the software as a service will be uninterrupted or available at all times. The customer shall comply with all terms and conditions of the Amazon Acceptable User Policy (http://aws.amazon.com/de/aup/), as such policy is then in effect (the “AUP”). Without limiting the terms and conditions of such AUP, the customer agrees that it shall only use the cloud infrastructure to send notifications to its own devices and to monitor its own website and infrastructure and the customer shall not send spam or notifications to any third party nor shall monitor third party or illegal websites. The customer agrees to indemnify and hold Paessler AG harmless from and against any and all damages, liabilities, and costs incurred by Paessler AG as a result of customer’s breach of any of the foregoing.
§ 4 Software Activation and Updates
- Some software products of Paessler AG need to be activated for use via internet or email. Without activation the customer cannot use the software.
- By activation of the software on a computer, a unique ID of that computer is sent to Paessler AG and matches the software to that computer computer. This process prevents 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.
- 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.
- 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 additional use of the software.
- Software products from Paessler AG connect periodically to Paessler AG servers, to automatically check for new versions and/or important security updates of the software. As part of this connection, information about the PRTG installation (for example, the number of sensors in use) will be transferred to Paessler AG.
§ 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), provided such backups are marked with an indication of Paessler AG’s intellectual property right and are not transferable;
- 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);
- decompilation to achieve interoperability according to § 69e sec. 1 UrhG; and
- production of a backup of the computer the software is installed on (Image).
2. Blocking device
The software is protected 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 unlock key 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 therewith solely belong to Paessler AG.
- The customer may not, without the written permission of Paessler AG, use the software and its operation instructions beyond the permitted acts, e.g. no alteration, no transfer to another programming language, no copying (e.g. by further installations of the Software), no redesign, no circulation, no sharing or – pursuant to § 3 No. 1 - granting access to third persons to the software, neither partially nor temporarily. Reverse engineering, de-compilation or disassembling are prohibited.
- In case of usage of the software in breach of these restrictions, the customer agrees to pay liquidated damages equal to three times the license fees.
The license fee for the commercial-editions of the software include 12 months of maintenance. When purchasing the license, maintenance for a longer period may also 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 maintenance period, the customer is eligible to download the latest version of the purchased “commercial-edition” and to request a license key therefor.
During the maintenance period, the customer may also receive technical support via the support ticket system of Paessler AG.
§ 2 Duration
The maintenance period is for 12 month, and, if not agreed otherwise, may be extended.
§ 3 Initiation of Support Period of Duration
The initial maintenance period 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 period can be extended at any time. The maintenance period is at all times 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 the forfeiture of a portion of the new maintenance period.
§ 5 Availability
Paessler AG does not guarantee the permanent availability of its website, downloads (including updates, instruction manuals, freeware, etc.), or support systems. The customer is obliged to protect the installation files and license keys, as they are prerequisites for any reinstallation.
§ 1 Data Protection
- Paessler AG complies with the then effective data protection regulations according to the BDSG (German Data Protection Act).
- The customer shall give accurate and complete information with regard to the person and to the company where necessary during the fulfillment of the contract. If there are changes to personal data relevant to the contract, the customer shall inform Paessler AG immediately. Additional costs incurred by Paessler AG due to wrong or uncorrected data information (e.g. re-delivery, address inquiry) are for the account and shall be borne by the customer.
- The personal data acquired by Paessler AG shall be used to compile and carry out orders as well as invoices.
- Upon request, the customer is entitled to be informed of its personal data acquired by Paessler AG free of charge.
- The customer is entitled to request correction, deletion or blocking of its personal data acquired by Paessler AG.
- The customer is entitled to object the sending by Paessler AG to Customer of product information at any time.
§ 2 Offsetting
Any offsetting of amounts due by customer to Paessler AG is only allowed if the customer’s claim is undisputed or established by legally binding court role.
§ 3 Place of Performance and Court of Jurisdiction
- The place of performance of this contract is Nuremberg, Germany, if the customer is a merchant in terms of the HGB (German Commercial Code), a corporate body under public law, or a special fund under public law.
- If the customer is a merchant in terms of the HGB (German Commercial Code), a corporate body under public law or a 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 its place of residence nor its main residence is known to Paessler AG. In addition, Paessler AG shall be entitled to file a suit or commence other legal measures at the customer’s general place of jurisdiction.
§ 4 Choice of Law
Any dispute arising out of the contract or in connection with herewith 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 Terms and Conditions should be or become partly or wholly void, the remaining conditions shall remain effective.
Information about Paessler AG:
Bucher Str. 79a
CEO/ COO: Dirk Paessler, Christian Twardawa
Supervisory Board: Dr. Marc Roessel (Chairman), Dr. Heinz Raufer, Jens Rupp
Registration Court: Amtsgericht Nuremberg, Registernummer HRB 23757
VAT-ID: DE 217564187
Paessler AG operates a website under the domain of http://www.paessler.com for commercial purposes. Downloaded software is offered via the Internet.