DATRON End User Licence Agreement for the DATRON next software – EULA
DATRON AG licenses to you, pursuant to the conditions of the present EULA (End User License Agreement), the DATRON next software, including the pertaining user documentation. DATRON next has been developed to facilitate controlling your DATRON milling machine and to guide you through the milling program easily. Please note that software, in general, can never be totally error-free. Should, unexpectedly, software errors occur, DATRON AG will endeavour to offer you a solution as soon as it becomes aware of and has identified such error.
§ 1 Definitions
- AV-Version – means Software that is not machine-related and licensed for one computer.
- User Documentation – means written materials in printed or electronic form that describe the functions of the Software and/or updates and upgrades helping you to use the Software, Updates and/or Upgrades effectively. The User Documentation does not modify the provisions of this EULA and/or its underlying general terms and conditions.
- DATRON – means DATRON AG, In den Gänsäckern 5, 64367 Mühltal-Traisa, Germany.
- Fee - means the price of or licence fee for DATRON software.
- GTC - means the DATRON general terms and conditions of business. See also www.datron.de. The provisions of the GTC shall take precedence over the provisions of the present EULA as stipulated hereunder.
- Customer – means only you in your capacity as a business.
- Licence – means your right to use the Software pursuant to this EULA and the GTC applicable at the date when the respective contract is concluded. The Licence determines the scale and scope for which the Licence to the Software is granted.
- Licence Period – means the period of time for which the licence is granted. The Licence Period starts when you put the machine into operation and/or receive a software dongle.
- Software - means the DATRON next software from DATRON in the object code, including any pertaining updates and upgrades that are provided by DATRON and for which DATRON has granted you a Licence.
- Software Dongle – is a copy-protection measure and helps to prevent unauthorised duplication of Software.
- Test Licence – means a free licence to test the AV-Version for a limited period and/or with limited functionality by a Customer.
- Business – means any natural person, legal person or partnership with legal capacity ordering or receiving the DATRON Software in pursuit of its commercial or independent professional or other activity outside its personal or family-related sphere.
- Updates and Upgrades - means new software versions. Whether a new software version is an Update or an Upgrade shall be decided by DATRON alone.
- Confidential Information – means all information and documents of the other party that have been earmarked as confidential or classify as confidential under the given circumstances, including, without limitation, information regarding operational processes, business relationships and know-how.
- Access Data – are given to the Customer by DATRON and include a valid dongle and a pertaining password that the customer must use to activate the Software.
§ 2 Object of the Agreement
- The object of the present Agreement concerns the long-term transfer of the Software in the object code as described in the offer, including the pertaining user documentation and the rights of use described in Article 4 below. The hardware and software environment in which the Software must be used is described in the user documentation, combined with the Dongle to activate the Software, and also in the respective individual confirmation of the order.
- DATRON provides you with one printed or downloadable copy of the User Documentation. In the event of a download, DATRON makes the Software and the User Documentation available for download on its website (www.datron.de). The Software is protected with the Dongle, which you receive solely for the purpose of using the Software as described in the individual confirmation of the order and the User Documentation.
- The quality and functionality of the Software is finally determined by the contents of the attached User Documentation. The data contained therein is a performance description and cannot be construed to constitute a guarantee. A guarantee is given only if specifically described as such.
- Installation and configuration work is not covered by this EULA.
§ 3 Property Rights
The Software is protected by international copyright laws, treaties and other laws. DATRON and its licensors own and maintain any rights, title and claims vested in and related to the Software, including any copyrights, patterns, operating and business secrets, trademarks and other industrial property rights. No title in the Software is transferred onto you hereunder. Except as provided for in § 4, you shall have no rights whatsoever related to the Software.
§ 4 Granting of Licence/Rights to Use
- Upon full payment of the Fee, DATRON grants you a non-exclusive, transferable, permanent licence for the use of the Software in the object code on DATRON machines or as AV-Version on one computer of the Customer, including the pertaining User Documentation and subject to any restrictions imposed hereunder or in the DATRON GTC. In the event of a conflict between the present EULA and the GTC, the DATRON GTC shall prevail.
- Should you receive a Test Licence of the AV-Version of the Software, the time during which the Software can be used shall be restricted to the period indicated in the confirmation of the order.
- With respect to Software for which DATRON has provided Updates and Upgrades, your Licence includes the right to receiving and using Updates and Upgrades during a period of one year (12 months), subject to full payment of the Fee. After a period of one year (12 months), you are no longer entitled to further Updates and Upgrades regarding the Software license pursuant to § 4(1). Yet, DATRON is entitled to offer to provide further Updates and Upgrades on a voluntary basis. With respect to Software for which no Updates or Upgrades are available from DATRON, your right to use the Software is restricted to the version of the Software for which you have paid.
- The use of the Software is restricted to DATRON machines. The right to use the Software is thus linked to the individual machine sold by DATRON. The AV-Version is used on one computer of the Customer.
- The number of Licences and the type and scope of use are further determined by the conditions stipulated in the confirmation of the order and the User Documentation. Yet, you do have the right to lease or sell the machine including the Software.
- The permitted use of the Software requires that the Software is activated through the Access Data and used in accordance with the User Documentation.
- DATRON allows you to decompile and/or copy the Software only to the extent permitted by law. This, however, applies only to the extent that DATRON has previously failed to provide you with the necessary information within a reasonable period as requested by you.
- You are not allowed to and you must not allow another person to fully or partially modify the Software or create derivative works that are fully or partially based on the Software.
- If the machine is sold, you will be entitled to permanently transfer the Software you bought to a third party in connection with the machine, including the Dongle and the User Documentation. In this case, you shall refrain from using the Software any longer, delete any copies of the program installed from your computers and delete any copies stored on other data media or hand them over to your buyer, unless you are subject to longer statutory retention periods. Upon request by DATRON, you will be under the obligation to confirm in writing that you adhered to each and any of the aforementioned measures or give the reasons for longer retention periods, if necessary. Furthermore, you are under the obligation to include in your agreement with such third party the adherence to the scope of the granting of rights pursuant to this § 4.
- Copyright marks, serial numbers or other features aimed at identifying the Software shall not be removed or modified in whatever way.
§ 5 Third-party Licences
DATRON next Software includes third-party software. You herewith agree and acknowledge adherence to the licensing conditions imposed by the third-party software. Queries regarding third-party software underlying the DATRON next Software should be sent to: DATRON AG, Abteilung Forschung und Entwicklung, In den Gänsäckern 5, 64367 Mühltal, Germany. You written query should include the name of the product, the Software version and a return address. DATRON will then provide you with the relevant licensing conditions by email.
§ 6 Technical Support
DATRON offers technical support services through its website (www.datron.de). Technical support services are provided in the sole discretion of DATRON and is not linked to any warranty or guarantee undertakings. You are fully responsible to save all existing data, Software and programs before receiving DATRON technical support. DATRON reserves the right to refuse, suspend or terminate technical support services in its sole discretion.
§ 7 Warranty
- DATRON offers warranty for the agreed characteristics pursuant to the User Documentation and also for you using the Software without infringement of third parties' rights. Warranty for defects is not applicable to defects attributable to the use of the Software in a hardware or software environment that is incompatible with the requirements stipulated in the User Documentation or for changes and modifications of the Software made by you without being authorised by statute, the present EULA or by reason of DATRON's prior written approval.
- In your capacity as a Business, you are under the obligation to examine the Software immediately upon receipt for apparent defects and communicate these without undue delay to DATRON; otherwise there will be no warranty for such defects. The same shall apply mutatis mutandis if a defect becomes apparent later on. Sec. 377 German Commercial Code ("HGB") shall be applicable.
- With you being a Business, DATRON is entitled to first try and remedy the defect by choosing the type of remedy, i.e. removal of the defect or replacement. If a replacement is provided, you may receive a more recent Software version, unless this would cause unreasonable duress. In the event of a defective title, DATRON will, at its own option, either provide you with the legally permissible option to use the Software or change it in such a way that the infringement no longer persists.
- DATRON shall be entitled to provide warranty services on your premises. DATRON shall be deemed to have fulfilled its remedial duties also by providing an automated installation routine for an Update on its homepage and offering the customer telephone support to address any upcoming installation issues.
- This does not affect the Customer's right to either reduce the purchase price or, at its option, rescind the contract if efforts to provide a remedy fail twice. The right to rescind the contract is excluded in the event of insignificant defects. DATRON's liability shall be governed by § 8 below if the Customer claims damages or compensation of futile expenditure.
- Except in the case of claims for damages, claims under warranty shall be subject to a limitation period in the event of quality defects of twelve (12) months, unless DATRON fraudulently concealed the defect, gave a guarantee for the characteristics of the Software or has been guilty of intent or gross negligence. If a data carrier is sold, the limitation period shall start upon delivery of the Software, in the event of a sale involving a download from the Internet, it shall start upon notification and activation of the Access Data from the download section. Claims for damages and claims for reimbursement of futile expenditure shall be subject to § 8.
§ 8 Liability
- DATRON shall be liable without limitation
- in the case of intent or gross negligence;
- for an injury or the death of a person caused through negligence;
- for defects DATRON has fraudulently concealed;
- pursuant to the provisions of the Product Liability Act; and
- under a guarantee given by DATRON.
- Damage attributable to a breach of duty based on slight negligence on the part of DATRON or its legal representatives or agents shall be reimbursable by DATRON as damages or compensation of expenditure only if a material contractual duty is affected (i.e. a duty that DATRON is obliged to fulfil and that is key to achieving the object of the contract and/or that DATRON is obliged to fulfil and whose nonadherence may jeopardise that the object of the contract be achieved). Liability for slightly negligent non-fulfilment of a material contractual duty shall be limited to an amount that would be typically foreseeable in such case.
- Furthermore, there shall be no liability on the part of DATRON.
- The above limitation of liability shall also extend to the personal liability of staff, representatives and organs of DATRON.
§ 9 Protective Measures. Right to Audit
- You are under the obligation to take appropriate measures preventing unauthorised access by third parties to the Software and, if appropriate, the Access Data for online access. In particular, Access Data must be kept at a safe place.
- Upon request, you will enable DATRON to examine the orderly use of the Software, specifically with a view to your use of the Software in line with the scope of the Licence bought as to extent and quantity. For that purpose, you shall provide DATRON with information, let them inspect relevant documents and enable DATRON, or an auditing company named by DATRON that is reasonably acceptable for you, to examine the hardware and software environment used. DATRON is entitled to perform such audit on your premises during your regular business hours by itself or have it performed by a third party that is sworn to secrecy. DATRON will make sure that its activities there will have the least possible impact on your business operations. Should the audit prove that the use exceeded the scope of the contract, you will have to pay for the audit, otherwise costs shall be borne by DATRON
§ 10 Secrecy
- You are under the obligation to keep for yourself any Confidential Information of which you become aware e.g. in the course of activities permitted under Sec. 69(d) German Copyright Act ("UrhG").
- This obligation does not extend to Confidential Information
a) that the recipient can prove to have already known when it agreed to the present EULA or to have subsequently received from a third party without failure to adhere to a confidentiality agreement, statutory provisions or administrative regulations;
b) that are publicly known when it agreed to the present EULA or has subsequently become publicly known other than through nonadherence to the present Agreement;
c) that must be disclosed due to a statutory obligation or upon the instructions of a court or government agency. To the extent permitted and possible, the recipient that is under the obligation to disclose information, will notify DATRON upfront and give it the opportunity to oppose the disclosure.
- You will disclose the necessary pieces of Confidential Information only to the staff required to remove errors and to oblige such staff to maintain secrecy also beyond their employment relationship to the extent permitted by labour law.
- Any negligent infringement of the above provisions will be subject to consequences under civil and penal law.
§ 11 Data Protection
DATRON collects, stores and processes the personal data of the ordering company required to transact the business. DATRON is also entitled to have these data processed and stored by a third party contractor.
§ 12 General Provisions
- Each and any legal relationship between DATRON and yourself shall be governed by German law alone. The application of the Vienna Convention (CISG) shall be excluded.
- Sole place of jurisdiction for any disputes related to the present EULA between DATRON and yourself shall be Darmstadt, Germany
- If a provision of this EULA is or becomes wholly or partially invalid, the validity of the remaining provisions shall not be affected. The invalid provision/part of the provision shall be deemed replaced by a legally valid provision that is nearest to the purpose of the invalid provision.
- Each and any right not expressly provided for in the present EULA shall be reserved for DATRON.
- Your standard business terms shall be inapplicable.
- Software may be subject to export or import restrictions. Specifically, there may be authorisation requirements and/or the use of the Software or the related technologies may be subject to restrictions abroad. Applicable export and import control provisions of the Federal Republic of Germany, the European Union and the United States of America as well as any other applicable rules have to be adhered to.
- You are not entitled to assign your rights under the present EULA without the express written approval of DATRON. § 4(9) above shall not be affected thereby.
- DATRON reserves the right to change the present EULA without prior notice.
Mühltal, Germany, October 1st, 2016