Licensee consents to and approves all terms and conditions of this Agreement by explicitly confirming this Agreement by clicking the respective button when asked during the installation procedure for the respective SW-Product.
If Licensee does not want to accept this Agreement and rejects the approval of this Agreement during installation, the installation terminates and the Product must not be used! In this case, the Licensee has the right to return the acquired Product to the respective reseller within 30 days after purchase for a refund of the purchase price.
(1) The Products are protected by copyrights and ancillary rights of use that are not sold with the purchase of the Products. Licensor retains all titles in these rights.
(2) By purchasing a Product, Licensee acquires the non-exclusive, non transferable generally open-ended right to install and use the purchased product as follows:
a) The Product "SwyxServer" can be installed and used only at the same time on one computer system of the Licensee. If this server system makes use of a virtualization software, only a single instance of SwyxServer may be installed and operated on this physical server system if and only if this instance operates on a valid License Key according to §1 (3).
b)The extent of licensed use is dependent on the number of acquired "User Licenses" and function wise by number and type of acquired optional function licenses (for example "Option packages"). If Licensee has also acquired the option "SwyxStandBy", he is entitled to install "SwyxServer" on an additional server system to be used as stand-by system for maintenance or hardware failures of SwyxServer.
c) The other server-based Products may be installed and used on separate individual server systems and in multiple instances on servers of the same Licensee.
d) The desk top based client Products may be installed and used on multiple PCs of the Licensee. Nevertheless, the number of installed instances must not exceed the number of User Licenses acquired for the related SwyxServer.
e) The control algorithms for generating Licensee specific license keys as described in the following do not exculpate Licensee from his obligations to correctly supply registration information and to control and obey the correct use of the Products and from his liabilities arising from violations of this Agreement.
(3) After installing the Products, Licensee initially has a limited right to use the Product for a period of 30 days after installation and in accordance with the terms and conditions of this Agreement by entering a supplied "Temporary License Key". Within this period, Licensee shall register the soft¬ware free of charge with Licensor and receive a new perpetual license key specific to the Licensee’s installation key ("Permanent License Key"), thereby transforming the timely restricted right to use into an unrestricted usage right.
(4) In consideration of Licensee's consent to this Agreement, Licensor irrevocably agrees to allocate, free of charge, a Permanent License Key to the Licensee’s installation which will enable Licensee to use the software for an indefinite term, unless the Product is an "evaluation" or "demo version" Product in accordance with §5 or §6.
(5) For technical reasons, subsequent changes to the originally selected hardware configuration may require Licensee to request and re-load a new Permanent License Key to maintain the perpetual right to use the software ("Spare License Key"). Licensor will provide a respective Spare License Key without delay and free of charge if the Licensee reassures not to use any longer the originally delivered Temporary License Key and not to pass on the Temporary License Key to any third party.
(6) Reproduction, lending, rent, barter or exchange of Products and/or other transactions circumventing the terms of this Agreement are not permitted without the explicit written consent of Licensor. The right to resale the Products is explicitly excluded.
§ 2 Future extensions of usage rights (Upgrade)
(1) After installing the Products, the Licensee is authorized to extend the scope of operation by purchasing additional User Licenses or Option Packs. For the intended operation of such upgraded installations a renewal of the permanent license key registration in analogy to §1(3) and (4) may become necessary.
(2) In upgrade situations for those option packages due for licensing and referred to as "OptionPacks" it is required in order to achieve the intended functionality that the number of users of the respective OptionPack is equal or exceeds the number of users of the related SwyxServer.
§ 3 Subsequent improvements or extensions of scope of operation
(1) The Licensee may download from the web pages of the Licensor "Update Versions" of the Products, which may fix hidden bugs of the Products, provide an improved or simplified usability, are operational in other system environments (Type A) or which add extended functionality (Type B). The Licensor will develop such Update Versions under his sole discretion and will provide such Update Versions according to the regulations of section (2) below. Entitlements of the Licensee to "Type A" Update Versions exist only within warranty periods and to the extent of the regulations given under §5.
(2) If the Licensee at a later point in time will replace a licensed product by a more recent version of the product, modified license and usage terms may apply with "Type B" Update versions that need to be approved by the Licensee during the installation. By approving such new terms, the new terms irrevocably replace the previous license terms and use rights.
a) Update Versions offered under the warranty terms of §5 are free of charge to the Licensee.
b) Update Versions offered outside the warranty terms will be either free of charge or priced at sole discretion of the Licensor. Update versions may require a renewal of the permanent license key registration by means of an "Update Key" in analogy to §1(3) and (4).
c) By purchasing "Swyx Update Service (SUS)" licenses or by entering into a software maintenance contract ("Swyx Innovation Guarantee"), the Licensee may receive all Type A and B Update Versions free of charge also outside the warranty period. Such SUS licenses or maintenance contracts underlie additional license terms and service definitions as published on the web pages of the licensor.
§ 4 Due Care and Caution of Licensee during Use of Products
(1) As with all software products, and although rigid quality assurance measures have been taken by the manufacturer and Licensor, the use of the Products involves a certain risk of hidden defects that may have an adverse effect on the intended full functionality of the overall system. However, problems may also be caused by any kind of combination of defective third party products (that are not integral part of the Products) but jointly installed and operated with the Products on the same system or network. For this reason, Licensee of the Products shall be prepared for temporary failures of SW-Products at all times and, thus, the temporary failure of certain functionalities provided by these products during normal operation.
(2) In view of this fact, Licensee agrees to take reasonable and appropriate measures with regard to its own business requirements to limit the effects of such potential unavailability to his business. This shall include state-of-the-art measures to maintain the local IP data network operational and appropriate measures to re-start the Products as soon as possible after a potential program failure either automatically or manually in order to minimize downtime and - in particular for companies with increased security requirements – to undertake necessary measures to ensure alternative phone access to and from the company in case of an emergency.
(3) In addition, Licensor expressly advises Licensee that no binding guarantees for uninterrupted operational availability of all functionalities provided by the Products (as under normal operation) are expressed nor may be derived from general product information material for the Products.
§ 5 Warranty
(1) According to industry’s experience and due to the technical complexity of "off-the-shelf" (Standard) software products, it is generally not possible to manufacture such software products completely free from defects. This general statement also applies for these Products. The Licensor does not make any statements if the Products can meet at any time the requirements of the Licensee.
(2) Licensor grants to Licensee a warranty period of 180 days for defective Products. Warranty claims of Licensee must be made during this term, starting with the day of purchase, and shall be made towards the reseller of the product as Licensor’s auxiliary person. Products are considered "defective" only if
a) the recording media of the Product cannot be read or
b) if material characteristics described in the documentation cannot be provided and the generally intended use of the Products cannot be achieved resulting in significant impacts on the usability of the Products ("Critical Defects").
For case a), Licensor will replace the media free of charge while in case b) Licensee has the right of subsequent improvement by receiving a Product free of the claimed warranty defect.
(3) Under warranty claim for subsequent improvement, Licensor shall inform Licensee of the date by which this Critical Defect shall be removed by providing a new free of charge Product version. During this period the warranty period is put on hold. If the announced date of replacement extends to more than 60 days after the original delivery date and if Licensor is not able to suggest a generally acceptable method to circumvent the Critical Defect, Licensee may return the Products and rescind from the purchase agreement.
4) Permanent or sporadic malfunctions of the Products during the warranty period which do not meet the criteria of Critical Defects do not justify warranty claims. Bug fixing in these cases is provided by delivery of free of charge version updates by Licensor or under the terms and conditions of separately closed "Software Up-date Service Agreements" respectively.
§ 6 Liability and Indemnification
(1) Licensor's liability for lost profits, unachieved cost savings on the part of Licensee, indirect damages and atypical, unforeseeable consequential damages (for instance, due to third party claims) are excluded and disclaimed. In particular, Licensor excludes liability for financial losses resulting from fees charged when using the Products in combination with public communication networks or from the loss of recorded or transmitted data.
(2) Licensor's liability for any damages that are caused by willful misconduct or gross negligence of the user, its legal representatives or agents is excluded. The same applies to liability for default and impossibility.
(3) Liability for typical, foreseeable damages is restricted per Licensee and contract to the paid license fee for purchased SW-Products of Licensee, based on the overall contract value (also in the event of partial deliveries) but limited to a maximum of
EUR 2,000,000 for personal injury and property damages and
EUR 200,000 for financial losses.
§ 7 Test versions of the Products
(1) If Licensee is provided with a Product version that is expressly referred to as "Evaluation Version" or "Beta Version", typically free of charge, any liability of Licensor - except in case of willful misconduct and fraudulent non-disclosure of a defect - is excluded and disclaimed. These product versions are undergoing final testing so that Licensee shall assume that not all product properties are fully functional and fully reliable at this time. Licensee bears the full and exclusive risk of the use of such product versions.
(2) Licensor shall provide Licensees of such Evaluation or Beta Versions with free and enhanced support and assistance so that any defects in these product versions may be discovered and removed at the earliest possible date. On the other hand, Licensee agrees to implement such versions, to monitor closely the operation of these Products, to immediately notify Licensor of any problems, and not to disclose any information regarding the functions or defects for these product variants to third parties without the written consent of Licensor.
(3) Upon delivery of a newer version, the right to use the earlier test version shall expire.
(4) The right to use the Evaluation Version shall expire upon delivery of the final product version of a Product and the warranty and liability duties of Licensor shall take effect. Nevertheless, Licensor is free at any time to revoke the license to use the Evaluation Version of the SW-Product and to request to return the delivered test version to Licensor.
§ 8 Demo versions of the Products
(1) Any liability and warranty is excluded with regard to versions that are referred to as "demo version" of the Products. These product versions are intended to be used for technology demonstrations only and NOT released for permanent operation. Licensee shall assume that not all product properties are fully functional and reliable at this time. Licensee bears the full and exclusive risk of use of such product versions.
Dortmund, November 1, 2011
Swyx Solutions AG