|Object of Agreement
|Object of this agreement is the right to use the standard software “AristaFlow BPM-Suite” or a derivative of the “AristaFlow BPM-Suite” explicitly named in the corresponding offer including the manuals and all other written materials purchased from your software dealer or directly from the AristaFlow GmbH with the limitation to use it exclusively for your own use or for resale to a third party (in the following: “Full-Licence”), for testing purposes (in the following: “Trial-Licence”), for educational purposes (in the following: “Teaching Licence”) or for research and educational purposes (in the following: “R&E-Licence”). Due to its contractual obligation towards the AristaFlow GmbH, the software reseller has adverted to you, that the acceptance of this licence agreement is essential. As far as the AristaFlow GmbH provides third party software it is treated under separate licence agreements and are not object of this agreement.
|Right of Utilization
|Full Licence: The AristaFlow GmbH grants the purchaser a non-transferable and non-exclusive right to use a copy of the AristaFlow GmbH software (in the following: the software) which has been made available to him/her by using the purchased licence key for installation. The simultaneous amount of installations and utilisations on workstations and/or servers is limited to the amount of licences which have been purchased, if no other agreement has been made with the AristaFlow GmbH. Further duplications of the original software are not allowed, except for backup purposes. The software and all related material must not be changed nor edited, disassembled, reconstructed, recompiled or used in any way different to its intended utilization, except those activities are valid due to copyright regulations which stringently must be applied in the respective country. The utilization of the software is only valid in conjunction with the original licence key.
|Trial Licence: Section 2.1 applies to the Trial Licence accordingly with the requirement that the utilization right is limited – unless explicitly agreed otherwise – to a 30 days (Quick Overview Licence) / 90 days (Evaluation Licence) period and the utilization is restricted to evaluation purposes only whereas the utilization in productive operations is explicitly forbidden.
|Teaching Licence: Section 2.1 applies to the Teaching Licence accordingly with the requirement that the utilization right is limited – unless explicitly agreed otherwise – to teaching purposes only whereas the utilization in productive operations is explicitly forbidden. By using the Teaching Licence of AristaFlow GmbH, the licence holder agrees to reference AristaFlow, the specific AristaFlow products, and the AristaFlow website in all corresponding documents (i.e., teaching material and demonstrations), artefacts, or projects referring to or realized using AristaFlow products.
|Full Research and Education Licence (R&E Licence): Section 2.1 applies to the R&E Licence accordingly with the requirement that the utilization right is limited to research and educational purposes and the utilization in productive operations is explicitly forbidden. By using the R&E Licence of AristaFlow, the licence holder agrees to reference AristaFlow GmbH, the specific AristaFlow products, and the AristaFlow website in all publications (i.e., papers, demonstrations, posters, and flyers) describing results, artefacts, or projects realized using AristaFlow products.
|In case of a full-licence the purchaser is allowed to sell or give away the software to a third party if it can be guaranteed, that the software is transferred in combination with the related material, that the purchasing third party declares its agreement to the continuity of the licence agreement and that it accepts the term to acquire a new licence key from the AristaFlow GmbH. In case of a transfer the original purchaser must deliver all copies of the software and its related material to the purchasing third party including backups. Copies and backups which are not transferred must be destroyed. In consequence to the transfer the original purchaser loses the right to use the software and its related material.
In case of a full-licence the purchaser is allowed to cede the software and related material to a third party for a certain period of time if this is not done for hire or leasing purposes and the third party declares its agreement to the continuity of the licence agreement, accepts the term to acquire a new licence key from the AristaFlow GmbH and the original purchaser transfers all copies of the software, the related material and backups to the third party or destroys non transferred copies. For the period of time where the software is ceded to the third party the original purchaser loses the right to use the software for its own purposes.
| Warranty for Defects of Quality
|The seller grants warranty towards the purchaser only for the fact, that the delivered software basically features all characteristics and functions which are pointed out in the related material at the time of delivery to the purchaser and that the delivered data medium can be read from an appropriate hardware, which normally is intended to be used for these data mediums, without any errors.
|In a warranty case the seller grants, within the warranty period of six month after delivery, at purchaser’s option resolve of defects or replacement delivery within an appropriate time limit specified by the purchaser. If rework/replacement fails for the third time the purchaser is allowed to claim the whole or a part of that amount of money which is equal to the price which the purchaser has paid for the software. If the purchaser claims the whole purchase price the purchaser has to uninstall the software completely and hand it back step by step against the refund of the purchase price. In case of a partial refund, the purchaser keeps the right to use the software. The amount refunded matches the use limitations which were caused by the defect. Warranties exceeding the former sections are not granted by the seller. Particularly the seller grants no warranty for the term that the software fulfils purchaser’s special requirements and purpose of usage or any (advertising) statements or descriptions announced by the AristaFlow GmbH or its resellers.
|Warranty of Title
|If a third party asserts a legitimate claim against the purchaser because of the allegation that the utilization of the software infringes already existing industrial property- or copyrights of the third party (in the following: proprietor) at the date of delivery to the purchaser, the seller is authorised to deliver a software, which is not property rights violating and basically features the characteristics and functions specified in the related material which is attached to the software, as replacement for the property rights violating software within an appropriate time limit specified by the purchaser. If this is not possible the liability of the seller against the purchaser is limited up to the value which is equal to the amount of money the proprietor would be entitled to claim from the purchaser for an intended utilization of the software for one year period at most.
This limitation of liability is invalid if the seller knew or should have known about the industrial property- or copyrights of the proprietor at the date of delivery. If or as far as the violation of the property rights are not caused by the software itself but by the utilization of the software, any warranty is excluded, except the case, that the related material explicitly intends for such utilization or takes it for granted. Furthermore any warranty is excluded for the case, that the purchaser does not inform the seller in written form about a possible violation of property rights immediately after he got aware of it. Further grants exceeding the mentioned warranties that the software is free from industrial property- and copyrights are not taken over by the seller.
|For any defects of title which are not covered by section 4.1 the seller is liable according to legal requirements without limitations.
|As far as the seller has not explicitly overtaken liability and indemnification in section 4 the warranty granted by the seller is restricted according to sections 5.2 to 5.4 independent of the liability’s legal basis.
|A liability of the seller, its legal representative, executive employees or vicarious agents can, independent of the liability’s legal basis, only be considered if the defect which has occurred was caused wantonly negligent or with intent; this exceptionally does not apply if the seller should be made liable for initial incapacity or confirmations or if the seller derelicts a duty whose observance is of special importance for fulfilling the purpose of the contract (cardinal duty).
|If the seller exceptionally is liable for the violation of a cardinal duty according to section 5.1 the liability is limited, independent of the legal basis of the liability, to those defects which usually can be expected if a software is ceded, provided that the seller did not act wantonly negligent or with intent. Particularly the liability of the seller is excluded for consequential or indirect damages (including all damages and expenses due to loss of data) as well as lost profits independent of the legal basis of the liability. Furthermore the seller particularly is not liable for the results compiled with the software, the correct application of the software as well as the monitoring, backup and supervision of the purchaser’s deliverables.
|If the seller exceptionally is liable for the violation of a cardinal duty according to section 5.1 the liability of the seller is limited
- in the case of data loss to the typical effort arising from recovery using backups made by the purchaser at regularly scheduled intervals in accordance with the risk involved.
- in any case and independent of the liability’s legal basis to the amount of the selling price for that software which directly caused the damage, provided that the seller did not act wantonly negligent or with intent.
|The invalidity of one or more provisions in this contract does not affect the validity of the remaining provisions. The parties are indebted in the case of the invalidity of a provision to replace the defective provision with an effective one, whose economic and legal sense comes closest to that of the defective provision.
|This contract and its accomplishment are subject to the law of the federal republic of Germany. International private law and UN purchase law are explicitly excluded. Exclusive place of jurisdiction for all disputes under this contract is Ulm in Germany.