This license agreement (“Agreement”) is an agreement between you (either an individual or a company, “Licensee”) and 4tiitoo GmbH, Sonnenstrasse 23, 80331 Munich, Germany (“4tiitoo”).
The “Licensed Materials” provided to Licensee subject to this Agreement include the software programs, which were installed on the equipment Licensee purchased from 4tiitoo (the “Designated Equipment”) at the time of delivery of the Designated Equipment and/or other software programs 4tiitoo has granted Licensee access to (the “Software”) as well as any online or electronic documentation associated with the Software, or any portion thereof (the “Documentation”), as well as any updates or upgrades to the Software and Documentation, if any, or any portion thereof, provided to Licensee at 4tiitoo’s sole discretion.
By installing, downloading, copying or otherwise using the Licensed Materials, you agree to abide by the following provisions.
This Agreement is displayed for you to read prior to using the Licensed Materials.
If you do not agree with these provisions, do not download, install or use the Licensed Materials.
Subject to the terms of this Agreement, 4tiitoo hereby grants and Licensee accepts a non-transferable, non-exclusive, non-assignable license without the right to sublicense to use the Licensed Materials only (i) for Licensee’s business operations, (ii) on the Designated Equipment, if any, or on a back-up equipment while the Designated Equipment is inoperable, and (iii) in accordance with the Documentation. Licensee may make one copy of the Software in machine readable form for backup purposes only; every notice on the original will be replicated on the copy. Installation of the Software, if any, is Licensee’s sole responsibility. The license is subject to Licensee providing 4tiitoo with certain data collected by the Software for purposes of quality control and improvement (“Performance Data”) when prompted by 4tiitoo or the Software to do so.
(2) Rights in Licensed Materials
Title to and ownership in the Licensed Materials and all proprietary rights with respect to the Licensed Materials and all copies and portions thereof, remain exclusively with 4tiitoo. The Agreement does not constitute a sale of the Licensed Materials or any portion or copy of it. Title to and ownership in Licensee’s application software that makes calls to but does not contain all or any portion of the Software remains with Licensee, but such application software may not be licensed or otherwise transferred to third parties without 4tiitoo’s prior written consent.
Licensed Materials and Performance Data are proprietary to 4tiitoo and constitute 4tiitoo trade secrets. Licensee shall maintain Licensed Materials and Performance Data in confidence and prevent their disclosure using at least the same degree of care it uses for its own trade secrets, but in no event less than a reasonable degree of care. Licensee shall not disclose Licensed Materials or Performance Data or any part thereof to anyone for any purpose, other than to its employees and sub-contractors for the purpose of exercising the rights expressly granted under this Agreement, provided they have in writing agreed to confidentiality obligations at least equivalent to the obligations stated herein.
(4) No Reverse Engineering
License shall not, and shall not allow any third party to, decompile, disassemble or otherwise reverse engineer or by any means whatsoever attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Software or of any files contained or generated using the Software. The obligations under this Section shall survive any termination of the Agreement. Licensee may apply to 4tiitoo at the address above for further information on the interface between the Software and other applications; 4tiitoo will on reasonable terms and conditions provide such information as the Licensee may reasonably be required to enable the Software to interoperate with its applications.
a) If Licensed Materials show a defect during the limitation period specified in Sec. 5 d), which already existed at the time of transfer of risk, 4tiitoo will provide Licensee with a corrected version of such defective Licensed Material (“Repeat Performance”).
b) Licensed Materials are defective, if they do not conform to the written agreement between 4tiitoo and Licensee, if any, or to 4tiitoo’s specification.
c) Licensee’s claims for defects are excluded:
– for insignificant divergences from the agreement or specification;
– for damages caused after the transfer of risk by external influences such as fire, water, currency surge, etc.; improper installation, operation, use or maintenance; use in fields of application and environmental conditions other than those expressly specified by 4tiitoo; and use in combination with other products not approved by 4tiitoo for this purpose, excessive stress or normal wear and tear;
– for defects of the Software, which cannot be reproduced;
– for Licensee’s or a third party’s modifications of Licensed Materials and results there from;
– in as far as Licensee has not notified 4tiitoo of apparent defects within 5 business days of delivery and of hidden defects within 5 business days of discovery;
– if Licensee does not provide Performance Data to 4tiitoo.
d) The limitation period for warranty claims is 12 months. This does not apply in cases of fraud, intent, gross negligence and personal injury. Repeat performance does not restart the limitation period.
e) Licensee has to always first provide 4tiitoo the opportunity for Repeat Performance within a reasonable period of time. Repeat Performance does not constitute acceptance of a legal obligation.
f) If the Repeat Performance fails even within an additional period of time of reasonable length to be granted by Licensee, Licensee shall, notwithstanding its claims under Section 6, if any, be entitled to rescind the contract or to claim a price reduction.
g) If the analysis of an alleged defect shows that it is not covered by the above warranty, 4tiitoo may charge for the failure analysis and correction of the defect, if any, at 4tiitoo’s then applicable rates.
(6) Liability Limitations
a) 4tiitoo is only liable for damages caused by slight negligence if such are due to a material breach of duty, which endangers the achievement of the objective of the Agreement, or the failure to comply with duties, the very discharge of which is an essential prerequisite for the proper performance of the Agreement.
b) In cases of Section 6 a), the liability is limited to the damage, which is typical for contracts like this Agreement and which could have been foreseen.
c) 4tiitoo’s liability is also limited to the damage, which is typical for contracts like this Agreement and which could have been foreseen for damages caused by the gross negligence of an agent or an employee of 4tiitoo, who is not an officer or executive of 4tiitoo.
d) In cases of Sections 6 a) and c), 4tiitoo’s liability is limited to a maximum amount of EURO 500.000, respectively EURO 100.000 for financial losses.
e) Licensee’s claims for damages caused by slight negligence or caused by the gross negligence of an agent or an employee of 4tiitoo, who is not an officer or executive of 4tiitoo, which are not based on defects and thus not subject to time-barring in accordance with Sec. 5 d) are time-barred at the latest 2 years from the point in time Licensee became aware of the damage and regardless of Licensee’s awareness at the latest 3 years after the damaging event.
f) With the exception of liability under the Product Liability Law, for defects after having given a guarantee, for fraudulently concealed defects and for personal injury, the above limitations of liability shall apply to all claims, irrespective of their legal basis, in particular to all claims based on breach of contract or tort.
g) The above limitations of liability also apply in case of Licensee’s claims for damages against 4tiitoo’s employees or agents.
(7) 4tiitoo Indemnity
4tiitoo will defend or settle any action brought against Licensee to the extent based on a claim that Licensed Materials, used within the scope of the license granted in this Agreement, infringe any copyright valid in the European Union or the European Economic Area and will pay the cost of any final settlement or judgment attributable to such claim, provided (i) Licensee has given prompt notice to 4tiitoo of such claim, (ii) Licensee has not recognized an infringement of the third party’s copyright, and (iii) the entire defense and the settlement negotiations are reserved for 4tiitoo with Licensee’s full cooperation and support. If Licensee discontinues the use of Licensed Materials for damage reduction or other important reasons, Licensee is obligated to point out to the third party that the discontinuation of use does not constitute an acknowledgement of a copyright infringement. If 4tiitoo believes Licensed Materials are likely to be the subject of an infringement claim, it may elect to replace or modify such Software or Documentation to make it non-infringing or terminate the Agreement on written notice to Licensee. 4tiitoo shall have no obligation to defend (or any other liability) to the extent any claim involves a Software release other than the current, unaltered release, if such would have avoided infringement, or use of the Software in combination with non-4tiitoo programs or data, unless the infringement would also incur without such combination. The foregoing states the entire obligation and liability of 4tiitoo with respect to any infringement by Licensed Materials of any intellectual property rights or other proprietary rights of Licensee or a third party without prejudice to any claims for damages in accordance with Section 6.
(8) Licensee Indemnity
Licensee will defend and indemnify 4tiitoo, and hold it harmless from all costs, including attorney’s fees, arising from any claim that may be made against 4tiitoo by any third party as a result of Licensee’s use of Licensed Materials, excluding claims for which 4tiitoo is obligated to defend or indemnify Licensee under Section 7.
(9) Export Restriction
Licensee will not remove or export from Germany or from the country Licensed Materials were originally shipped to by 4tiitoo or re-export from anywhere any part of the Licensed Materials or any direct product of the Software except in compliance with all applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce.
(10) Non-Waiver; Severability; Non-Assignment
The delay or failure of either party to exercise any right provided in this Agreement shall not be deemed a waiver. If any provision of this Agreement is held invalid, all others shall remain in force. Licensee may not, in whole or in part, assign or otherwise transfer this Agreement or any of its rights or obligations hereunder.
This Agreement may be terminated without any fee reduction (i) by Licensee without cause on 30 days’ notice; (ii) by 4tiitoo, in addition to other remedies, if Licensee fails to cure any breach of its obligations hereunder within 30 days of notice thereof; (iii) on notice by either party if the other party ceases to do business in the normal course, becomes insolvent, or becomes subject to any bankruptcy, insolvency, or equivalent proceedings. Upon termination by either party for any reason, Licensee shall at 4tiitoo’s instructions immediately destroy or return the Licensed Materials and all copies thereof to 4tiitoo and delete the Software and all copies thereof from the Designated Equipment.
(12) Entire Agreement; Written Form Requirement
There are no separate oral agreements; any supplementary agreements or modifications hereto must be made in writing. This also applies to any waiver of this requirement of written form.
All notices under the Agreement must be in writing and shall be delivered by hand or by overnight courier to the addresses of the parties set forth above.
(14) Applicable Law and Jurisdiction
German law applies with the exception of its conflict of laws rules. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded The courts of Munich, Germany, shall have exclusive jurisdiction for any action brought under or in connection with this Agreement.
Version effective date: January 1, 2016