This License Agreement and Limited Warranty constitute a legally binding agreement (hereafter referred to as the "License Agreement") between you (as an individual person or organization) and AceBIT GmbH (hereafter referred to as "AceBIT") as regards the use of the software product WISE-FTP (hereafter referred to as the "Software"), including other software, media and accompanying documentation made available in electronic or printed form.
By installing, copying or otherwise using the software product, you agree to be bound by the terms of this license agreement.
The terms under which you as the end user (hereafter referred to as the "licensee") are permitted to use AceBIT software are explained below. By installing the software, you agree to be bound by these terms. It is therefore important that you carefully read the text below. If you do not agree with these terms, you may not install the Software. In this case, promptly return the Software to the place from which you obtained it for a full refund.
Terms of the License Agreement
1. Subject matter of agreement
- Subject matter of this agreement shall be the permanent handing over of the software product WISE-FTP in the object code including the complete documentation (hereafter collectively referred to as "Software") as well as granting rights of use in accordance with §2.
- AceBIT wishes to emphasize that, given to the current state of technology, it is not possible to create computer software that works properly in all applications and possible combinations with other software products. This License Agreement therefore covers only Software that is in principle considered to be useable in accordance with the program description and user manual. Any warranties or procurement obligations shall only be valid if they were explicitly designated as such.
2. Use of Software
- With registration the licensee is granted a non-exclusive right of use for the Software that is unlimited in time. The maximum number of persons to use the Software at the same time shall not exceed the number of licenses originally ordered by the licensee. Admissible use of the Software comprises installation, loading it to the main memory of the computer as well as proper use of the Software by the licensee. Under no circumstances the licensee may rent or provide any sub-licenses of the purchased Software to third parties, present the software publicly via wired or wireless communication means or make the Software available to third parties gratuitously or for a consideration, as for example Application Service Providing or "Software as Service". Sub-point 4 shall remain unaffected.
- The licensee is entitled to create a security copy if necessary to secure future use of the Software. The licensee shall explicitly label this security copy as such with "Security Copy" and a corresponding copyright notice of the manufacturer.
- The licensee is entitled to decompile and copy the Software where this becomes necessary to secure the interoperation with other programs. This shall only apply if AceBIT on request did not provide the licensee with all necessary information within an appropriate period of time.
- The licensee is entitled to permanently hand over the purchased copy of the Software as well as the complete documentation to a third party. By doing so, the licensee agrees to completely give up the right of use for the Software, to delete all installed copies from his computer(s) as well as copies on any other data storage device or to return all copies to AceBIT, provided that the licensee is not legally obliged to store the copies for a certain period of time. At AceBIT`s explicit request the licensee is obliged to confirm in written form that the mentioned measures have been carried out or if necessary to state reasons for a longer period of storage. Furthermore the licensee and the third party shall explicitly agree on the observance of rights of use in accordance with §2.
- If the licensee uses the Software to such an extent that the rights of use obtained with purchase are exceeded qualitatively (with regard to proper use) or quantitatively (with regard to the number of purchased licenses), he shall immediately purchase the necessary rights of use. If the licensee fails to do so, AceBIT is entitled to assert her rights in accordance with this agreement.
- In order to use the Software, the licensee must register with AceBIT. Registration is completed automatically by means of an e-mail message generated by the Software and sent to AceBIT, containing the entered personal details (name, company, postal address, e-mail address, telephone number) of the licensee. After receipt of this e-mail message, AceBIT will send a confirmation e-mail to the licensee.
- The personal details mentioned above are stored electronically by AceBIT for internal purposes and are not made available to third parties. By installing the Software, the licensee agrees to the dispatch of contact details and the subsequent storage of this data by AceBIT. AceBIT reserves the right not to grant users rights, if incorrect personal details were submitted upon registration.
4. Ownership of Rights
- By purchasing the Software the licensee only becomes owner of the physical data storage device on which the Software or relevant files are stored. Purchasing the product does not imply any further property rights on the Software for the licensee.
- AceBIT preserves all rights, including publishing rights, copyrights, adaptation rights as well as exploitation rights for the Software.
- AceBIT guarantees for the agreed quality of the Software and that the licensee is entitled to use the Software without violating rights of third parties. Warranty of quality shall not be applied if a defect results from improper use of the Software or using the Software on systems that do not fulfill the stated system requirements.
- If the licensee is an employer, he is obliged to check the Software for obvious defects immediately upon receipt and if provided to communicate the defect immediately to AceBIT, otherwise those defects shall not be covered by warranty. The same applies to any defects that are claimed later. §377 HGB shall be applied.
- If the licensee is an employer, AceBIT is entitled to provide supplementary performance in case of any material deficiency, i.e. at AceBIT`s choice remedy of defects ("repair") or substitute delivery. If necessary the licensee shall be provided with an updated version of the Software in the content of substitute delivery, provided that does not imply unreasonable restrictions. In case of deficiencies in title, AceBIT shall give the licensee a legally indisputable opportunity to use the Software or shall make appropriate amendments that rights of third parties will no longer be violated.
- AceBIT is entitled to provide warranty in the premises of the licensee. AceBIT carries out its duty of "repair" by providing automatically installing updates for free download from the company`s website or by offering technical support via telephone or email in case of any other problem occurring during the installation procedure.
- The licensee`s right of withdrawal or right to reduce the purchase price after the remedy of defect or substitute delivery has failed two times remains unaffected. Right of withdrawal is not applicable in case of insignificant defects. If the licensee claims compensation for damages or futile expenditures, AceBIT is liable according to §6.
- If the licensee is a consumer, statutory warranty regulations shall be applied.
- With the exception of claim for damages any warranty claim because of material deficiency becomes statute-barred within two years or within one year, if no consumer is involved in the transaction. Statutory limitation shall begin in case of a sale on a data storage device with delivery of the software, in case of a download after installation and provision of unlock data or rather with the provision of access data for the download area. Claims for compensation or compensation for futile expenditures are applicable according to §6.
- AceBIT shall be liable, in case of intent and gross-negligence, in case of injury of life, body or health according to the German Product Liability Act within the scope of warranty
- In case of slightly negligent violation of contractual duties that are of considerable importance for the fulfillment of the contract (cardinal obligation), liability of AceBIT is limited in amount to the damage that is foreseeable and expectable for this kind of business.
- Any further liability of AceBIT shall be excluded.
- Preceding limitation of liability shall also apply to personal liability of AceBIT employees, representatives and bodies of the company.
- The licensee shall transfer any claims against AceBIT to third parties only after written consent of the same. §2 sub-point 4 remains unaffected.
- The customer may only offset against claims that are undisputed or which have been determined as legally valid.
- All changes and amendments to this agreement shall be valid only if made in writing. This shall also apply to amendments or the suspension of this clause. Electronic documents in shape of text matter do not fulfill the requirements of the written form.
- General terms and conditions of the customer shall not be applicable.
- The contractual Software may be subject to (re-)export restrictions, e.g. from the United States of America or the European Union. The customer is obliged to act according to these regulations in case of resale or any other exportation.
- For this contract the law of the Federal Republic of Germany applies to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980.
- Sole place of performance is the company seat Darmstadt. Provided that each contractual party is trader, legal person or without general place of jurisdiction, sole place of legal venue for all disputes among the parties arising out of and in relation to this agreement is the company seat Darmstadt.
- If any provision of this sales contract is or becomes ineffective or impracticable or if there is a loophole in this contract, this does not affect the effectiveness or enforceability of all other provisions. The contracting parties shall endeavor to find, in lieu of the ineffective provision, an effective one that comes as close as possible to having the economic significance of the ineffective one.
If you have any questions concerning this License Agreement, please write to: AceBIT GmbH, Holzhofallee 15, D-64295 Darmstadt, [email protected]