Software License Terms & Conditions of fayteq AG

1    Scope of Agreement

1.1    These Software License Terms & Conditions apply exclusively to any software license agreement between fayteq AG, Erich-Kästner-Straße 1, 99094 Erfurt, Germany (“Licensor”), and its licensee (“Licensee”) regarding any of the software products available in Licensor’s online store at www.fayteq.com (“Licensed Product”) or the web site of any authorized reseller. Licensee’s terms and conditions do not apply except to the extent expressly and separately agreed in writing between the parties, even if Licensor has not expressly rejected them. Licensor expressly rejects any Licensee terms and conditions that may be contained or referred to in any order forms or similar documents submitted by Licensee.

1.2    Licensor’s products are not offered, sold or made available to consumers as defined in the German Civil Code s. 13, i.e. natural persons who enter into a legal transaction for purposes that predominantly are outside their trade, business or profession.

 

2    Subject Matter of Agreement; License Models


2.1    Licensed Product; Documentation; Executable Code Only.  The subject matter of this Agreement is the grant of a license in the Licensed Product subject to the further terms hereof. The precise contractual scope of functionalities of each version of each Licensed Product is exhaustively defined by the description on the relevant product page and, to the applicable extent, the documentation expressly referred to on such product page. Except where expressly stated otherwise, documentation for the Licensed Product will be provided only in digital form in a commonly accepted standard file format (e.g. PDF for text/image files) and only in English language. The Licensed Product is provided in executable code only; the source code is not a part of the subject matter hereof and not covered by any license granted hereunder.

2.2    No Services.  Except to the extent as may be expressly and separately agreed in writing, against additional remuneration, Licensor does not owe any installation, implementation, customization or other services.

2.3    License Model Options.  In order to best meet their respective requirements, Licensee may customize the license terms for each Licensed Products by choosing from the available options regarding license scope (Section 2.3.1), license type (Section 2.3.2) and license duration (Section 2.3.3); the different options can be combined and resulting licenses may be available as evaluation licenses (Section 2.3.5), free licenses (Section 2.3.6) and/or as academic use licenses (Section 2.3.4), each as specified and defined in the indicated Section(s) below and in Section 4. For clarity and by way of example, this means that, subject to availability, Licensee may select license combinations such as “Basic Floating Term Academic Evaluation”, “Pro Locked Term”, “Basic Locked Perpetual Academic”, etc.

2.3.1    License Scope. Each Licensed Product may be available in several versions with varying functionalities (e.g. “Basic” and “Professional” or “Silver” and “Gold” versions).

2.3.2    License Type. Each Licensed Product may be available with either node-locked (“Locked”) or floating (“Floating”) licenses. Where a Licensed Product is subject to Locked licenses, it may only be installed and used on the devices individually identified to Licensor. Where a Licensed Product is subject to Floating licenses, it may be installed on an unlimited number of devices, but may not be used concurrently at any one time by more than the licensed number of devices. If a device running a Locked copy of the Licensed Product is replaced, Licensee may permanently remove such device from the pool of authorized devices and assign the relevant Locked license to a new device; for clarity, any device that has been removed from the pool of authorized devices cannot be re-added to this pool again later, except if the total number of Locked licenses available to Licensee has also increased. The procedure for making requests to Licensor for re-assignment of Locked licenses is described in Licensor’s online store at www.fayteq.com.  

2.3.3    License Duration.  Each Licensed Product may be available on the basis of either a term (“Term”) or perpetual (“Perpetual”) license. Different provisions will apply depending on the selected license duration model; this particularly concerns warranty and liability, software updates, and payment terms.

2.3.4    Academic Use.  Each Licensed Product may be available on the basis of an “Academic” license to eligible customers. Only recognized post-secondary and vocational educational institutions (such as colleges, universities, academies, and vocational training institutes; and, for clarity, regardless of whether they are public or private, or for-profit or non-profit institutions) are eligible for Academic Use licenses. For clarity, Academic Use licenses are not available to individual faculty, staff or students of such institutions. Licensor reserves the right to request reasonable proof of eligibility and further reserves the right to determine, in its discretion, whether any institution is eligible for an Academic Use license. Licensed Products subject to Academic licenses may not be used for commercial purposes, i.e. Licensee may not derive any commercial advantage from exploiting the work products created with such Licensed Products; provided, however, that indirect advantages (such as use of the Licensed Products as teaching tools in classes that attract tuition or similar payments) are permitted.

2.3.5    Evaluation Use. Each Licensed Product may be available on the basis of a time-limited “Evaluation” license. Evaluation licenses are granted free of charge for a limited term only (provided, for clarity, that if Licensee selects a Perpetual license model, the Evaluation option may still be available but will be a Term license model). The Evaluation license does not automatically convert into a paid license. Upon expiration of the evaluation term, Licensee will be notified accordingly (e.g. through a pop-up), and will then have the option, but not the obligation, to purchase the initially selected license. Licensed Products subject to Evaluation licenses may not be used for commercial purposes, i.e. Licensee may not derive any commercial advantage from exploiting the work products created with such Licensed Products. Any work product created using an Evaluation version of a Licensed Product may automatically be branded by a watermark identifying the Licensor and/or the license. Additional restrictions apply, in particular concerning warranty and liability.

2.3.6 Free Use. Each Licensed Product may be made available on the basis of a restricted “Free” license. Free licenses are granted free of charge for a limited or unlimited term. Licensed Products subject to free licenses may not be used for commercial purposes, i.e. Licensee may not derive any commercial advantage from exploiting the work products created with such Licensed Products. Any work product created using a Free version of a Licensed Product may automatically be branded by a watermark identifying the Licensor and/or the license. Additional restrictions apply, in particular concerning warranty and liability. 

3    Conclusion of Agreement; Delivery; License Activation/Verification

3.1    Steps Leading to Contract.  Licensee may select the desired Licensed Products and available options and place them in their basket within Licensor’s online shop. Licensee will also be prompted to select one of the available payment methods and enter their name, address, e-mail address, and payment details (depending on the selected payment method). Licensee may also have the option of creating an account in Licensor’s online shop, but this is not mandatory. Before finally placing the order, Licensee can review the details of the order, correct any mistakes and make any desired modifications. By clicking the “Buy now” button, Licensee makes a binding offer to Licensor. Licensor will confirm receipt of the order by e-mail. Except where expressly indicated otherwise, such confirmation e-mail is not an acceptance of the order. The contract is not concluded until Licensor accepts the order by either expressly declaring acceptance or by delivering the Licensed Products.

3.2    No Obligation to Accept.  Licensor is not obliged to accept any order. In particular, Licensor reserves the right to request reasonable proof of Licensee’s status as a non-consumer and/or eligible academic institution prior to accepting any order, and may in particular decline an order if it determines, in its entire discretion, that the relevant requirements are not met. 

3.3    Delivery of Licensed Product. Licensor will deliver Licensed Product by making it available for download and providing a license activation code to Licensee via e-mail. The Licensed Products and/or license activation codes will not be shipped on physical data media.

3.4    License Activation. Any use of the Licensed Product requires installation and activation of the license. The Licensed Product will not run unless activated. Activation requires Internet access, i.e. the device on which the Licensed Product is installed must be connected to the Internet and able to communicate with Licensor’s activation servers. When a Licensed Product subject to a Locked license first contacts the activation server, Licensor generates a unique hardware fingerprint of the according device. The according Licensed Product is definitively assigned to that device (subject only to later re-assignment of the Locked license as provided in this Agreement).

3.5    License Verification. Licensor reserves the right to periodically remotely check the licensing status of any deployed Licensed Product, i.e. Licensed Product will periodically attempt to connect to Licensor’s activation servers to confirm the license is still valid and in good standing. If the license is not valid, the Licensed Product will shut down and will not work until the license is renewed. Licensee will be informed accordingly in a reasonable manner, e.g. by e-mail and/or on-screen messages. If Licensed Product is unable to contact Licensor’s activation servers for more than 30 days, then the Licensed Product will deactivate itself until the license can be verified again. 
 
4    Grant of Rights


4.1    General License Grant. Subject to the further terms, conditions and restrictions of this Agreement, and in particular this Section 4, Licensor grants Licensee the worldwide, non-exclusive, non-sublicensable right to copy, install and use the Licensed Product on its premises for the purposes of its business.

4.2    License Type. The license grant pursuant to Section 4.1 is limited

a)    for Locked licenses, to the devices first identified by the license server as de-scribed in Section 3.4 (subject only to re-assignment from time to time in accordance with this Agreement), and

b)    for Floating licenses, to the maximum number of concurrent devices identified in Licensee’s order; provided however that the Licensed Product may be in-stalled on an unlimited number of devices on Licensee’s premises.

4.3    License Duration. The license grant pursuant to Section 4.1 is

a)    limited to the term of the license (defined in Section 6) for Term licenses, and

b)    perpetual and irrevocable for Perpetual licenses.

4.4    General License Restrictions.

4.4.1    Restrictions on License Transfer. The license granted pursuant to this Section 4 is non-transferable, provided that in the case of Perpetual Licenses, nothing herein shall be construed as limiting Licensee’s statutory right to transfer their copy of the Licensed Program once to a subsequent purchaser, subject to any and all applicable legal conditions and restrictions on such transfer.

4.4.2    Restrictions on Digital Product Placement. Except where expressly authorized in the product description or documentation of a Licensed Product or expressly and separately agreed in writing, the Licensed Product may not be used for the purpose of creating, removing or replacing any digital product placement or digital placement of advertisements, whether for Licensee’s own purposes/products/services or as a paid service for any third party.

4.4.3    Restrictions on Reverse Engineering. Licensee may not reverse engineer, decompile or otherwise seek to derive the source code of the Licensed program, except (i) to the extent required for the contractual use of the Licensed Product, including for the purpose of error correction in cases where error correction is not reasonably available directly from Licensor or its designates; and (ii) to the extent required for the purpose of obtaining information needed to make an independently developed software product interoperational with the Licensed Product, provided that any such required information shall first be requested from Licensor against reimbursement of reasonable expenses, and further provided that any information derived from such permitted reverse engineering or decompiling may be used exclusively for the purpose stated above and may not be shared with any third party except to the extent required for such purpose.

4.5    Additional Restrictions for Academic Licenses. In addition to any other applicable terms, conditions and restrictions, for any Academic license, the license granted pursuant to Section 4.1 shall be limited to non-commercial use by regular members of Licensee in good standing (i.e. faculty, staff and students).

4.6    Additional Restrictions for Evaluation Licenses. In addition to any other applicable terms, conditions and restrictions, for any Evaluation license, the license granted pursuant to Section 4.1 shall be limited to non-commercial use by Licensee. For clarity, all work product created with such versions may bear an identifying watermark, and Licensee shall not remove, modify, obscure or otherwise tamper with such watermark.

5    Pricing, Payment, Default; Further Licensee Obligations

5.1    Perpetual Licenses.  License fees for any Perpetual licenses are due and payable in full upon Licensor’s acceptance of Licensee’s order. Licensor shall invoice Licensee accordingly.

5.2    Term Licenses. Except to the extent stipulated otherwise in the according product description and payment terms within the online shop, license fees for any Term license are due and payable quarterly in advance. Licensor shall invoice Licensee accordingly.

5.3    Electronic Invoices. Except to the extent expressly agreed otherwise, electronic in-voices (e.g. PDF files sent via e-mail) shall be deemed sufficient.

5.4    Payment methods.  The available payment methods are indicated on the relevant product page.

5.5    Default Interest.  Licensor is entitled to interest at the then-current statutory amount for any overdue payments.

5.6    Suspension in the Event of Default.  In the event Licensee is in default with any payment hereunder for more than 14 days, Licensor may suspend Licensee’s use of the concerned Licensed Product(s) until such time as all overdue amounts (including inter-est) have been settled. Any and all other rights and remedies of Licensor remain unaf-fected.

5.7    Licensee’s Backup Obligation.  Licensee is responsible for making regular backups at reasonable intervals of any and all data stored on any device and/or system on or in connection with which a Licensed Product is used.

6    Term of License; Updates (Term licenses only)

6.1    License Term. Except where expressly agreed otherwise, the term of any Term license is 1 year (a “License Term”). Term licenses cannot be terminated for convenience during their License Term.

6.2    Updates. Licensee is entitled to receive any and all updates to the Licensed Product that Licensor makes generally available to the public during the License Term. For clarity, this does not apply to functionality upgrades that are separately marketed by Licensor as separate from, or successor products to, the Licensed Products (“Upgrades”).

6.3    License Renewal. Except to the extent stipulated otherwise in the according product description and payment terms within the online shop, the License Term is not renewed automatically. Upon expiration of the License Term, Licensee will be notified accordingly (e.g. through a pop-up), and will then have the option, but not the obligation, to renew the license.

6.4    Extraordinary Termination. The parties’ statutory right of extraordinary termination without notice for good cause remains unaffected. Licensor shall in particular have good cause for termination if (i) Licensee breaches the license restrictions of Section 4, or (ii) Licensee is in default for more than 30 days with any owing payment in spite of a written reminder. For clarity, any and all other statutory and contractual remedies of Licensor remain unaffected.

6.5    Application of these Terms & Conditions. For clarity, these Software License Terms & Conditions apply permanently for any Perpetual licenses, and until the expiry of the last License Term for any Term licenses; provided that any provisions herein which by their nature should service any termination or expiration hereof shall so survive such termination or expiration.

7    Warranty Disclaimers

7.1    General. This Section 7 exhaustively states Licensor’s warranty obligations and Licen-see’s rights and remedies in the event of any defect.

7.1.1    Specifications Exhaustive. A Licensed Product shall be considered to have a defect only to the extent it fails to comply with the contractually agreed specifications, which shall be deemed exhaustive.

7.1.2    Defect Report. Licensee shall report any defects to Licensor in writing (e-mail sufficient), including a detailed description of the defect with all information Licensor needs to identify, reproduce, analyse and correct the defect.

7.1.3    Supplementary Performance. Upon receipt of such defect report, Licensor shall, within a reasonable time period set by Licensee that allows for at least three attempts of supplementary performance, provide supplementary performance by, at its option, (i) providing a patch or update to remove the defect, or (ii) providing a new release of the Licensed Product that does not contain the defect.

7.2    Permanent Licenses. Subject to the further restrictions of Section 7.4 below, the following warranty provisions apply to Permanent licenses hereunder.

7.2.1    Further Remedies. If supplementary performance pursuant to Section 7.1.3 definitely fails, Licensee may (i) rescind the agreement, or (ii) claim a partial refund of the pur-chase price proportionate to the degree to which the defect reduces the utility of the Licensed Product; provided however that rescission is not possible if the defect is non-material.

7.2.2    Remedies Exhaustive. Any and all other claims and remedies are excluded.

7.2.3    Warranty Period. The warranty period is one (1) year starting with delivery of the Licensed Product.

7.3    Term Licenses. Subject to the further restrictions of Section 7.4 below, the following warranty provisions apply to Term licenses hereunder.

7.3.1    Supplementary Performance. If supplementary performance pursuant to Section 7.1.3 definitely fails, Licensee may (i) terminate the agreement, or (ii) claim a deduction (and, if pre-paid, according refund) of the license fees payable for the time period after the defect occurred, proportionate to the degree to which the defect reduces the utility of the Licensed Product; provided however that termination is not possible if the defect is non-material.

7.3.2    Remedies Exhaustive. Any and all other claims and remedies are excluded. In particu-lar, Licensor’s no-fault liability for defects of the Licensed Product present prior to conclusion of the license agreement (Sec. 536a para. 1 Alt. 1 of the German Civil Code) is excluded.

7.4    Warranty Disclaimer for Evaluation Licenses. The foregoing notwithstanding, and in accordance with statutory law, any Licensed Product provided free of charge under an Evaluation license is provided strictly “as-is” and without any warranty.

8    Limitation of Liability

8.1    Unlimited Liability. Licensor’s statutory liability is unlimited for wilful intent, gross neg-ligence, damage to life, limb or health, to the extent Licensor has issued a guarantee (“Garantie”) (which must be expressly designated as such in order to be a guarantee (“Garantie”) in the legal sense), and under the German Product Liability Act.

8.2    Essential Obligations. Except in the cases described in Section 8.1 above, Licensor’s statutory liability in the event of slightly negligent breaches of Essential Obligations is limited to damages that are typical of software license agreements and foreseeable at the time of conclusion of this Agreement; Essential Obligations for the purpose hereof are any such obligations the performance of which is necessary to achieve the pur-pose of the Agreement and on the performance of which the Licensee may therefore generally rely. The Parties further agree that typical and foreseeable damages are lim-ited to the license fees actually paid by Licensee for the concerned Licensed Product (in the case of Term licenses: the license fees actually paid by Licensee for the 12 months prior to the damaging event).

8.3    Other Slight Negligence. Except in the cases described in Sections 8.1 and 8.2 above, Licensor is not liable for slight negligence.

8.4    Evaluation License. The foregoing notwithstanding, and in accordance with statutory law, Licensor’s liability is limited to intent and gross negligence with regards to dam-ages caused by any Licensed Product covered by an Evaluation license.

8.5    Data Loss. To the extent Licensor is liable pursuant to the limitations above for any loss of data on any device or system of Licensee, such liability is in any event limited to the amount that would be required to restore such data if reasonable regular back-ups had been made.

8.6    Application to Officers/Employees. These limitations of liability apply accordingly for the benefit of any and all directors, officers, employees, subcontractors, representa-tives and/or vicarious or other agents of Licensor.

8.7    Liability Section Exhaustive. Licensor’s liability is stated exhaustively in this Section 8.

9    Penalty

9.1    For any instance of culpable breach of the restrictions on digital product placement (Section 4.4.2), Licensee shall pay to Licensor a contractual penalty in an amount to be determined by Licensor in its equitable discretion; such amount being subject to review by the court of competent jurisdiction. Licensor’s other statutory and contractu-al rights and remedies remain unaffected.  

10    Miscellaneous

10.1    Applicable Law. This Agreement is subject to the laws of Germany, excluding the CISG.

10.2    Venue. Erfurt, Germany, is the exclusive legal venue for any disputes arising out of or in connection with this Agreement.

10.3    Language. This Agreement is made in the English language. Any translation into any other language is for convenience only; in the event of any discrepancy, the English language version shall control, giving full effect however to any German legal terms contained therein.
Written Amendments. Any modification hereof requires a written amendment signed by author-ized representatives of both parties; this also applies for any waiver or modification of the writ-ten form requirement.

 Last updated: 5 September 2016