License Conditions of Botshield
The following Terms and Conditions can be downloaded from SenseCom IT Services Botshield-Website and be printed: http://www.botshield.de/doc/license Upon request to email@example.com, SenseCom IT will provide you with a digital or written version.
SenseCom IT operates its Botshield-Website under the domain of http://www.botshield.de for commercial purposes. Software-download is being offered via Internet.
A. General Terms
§ 1 Scope of Application
1. These Terms and Conditions are only applicable to business with customers, if SenseCom IT offers or renders goods or services. Therefore they are not applicable for business, where SenseCom IT has placed an order or is purchasing goods or services.
2. These Terms and Conditions shall only apply vis á vis entrepreneurs within the meaning of sec. 14 BGB (German Civil Code). If contracting party is a consumer within the meaning of sec. 13 BGB, the statutory rule shall apply instead of these Terms and Conditions.
§ 2 Exclusive Validity of these Terms and Conditions; Individual Agreements
Any distribution of software and all services or goods in connection therewith are being rendered exclusively on the basis of these Terms and Conditions.
Deviating terms of the customer only become contractual basis when confirmed in writing by SenseCom IT. Even if those are not objected expressly, this does not constitute a tacit consent by SenseCom IT. These Terms and Conditions are applicable for current and also future services and goods rendered, even if SenseCom IT does not expressly refer to them. By conclusion of the contract the customer accepts these terms.
Any terms individually agreed with the customer (including additional agreements, amendments and modifications) take priority over these Terms and Conditions. With respect to the content of such agreements a written contract respectively a written confirmation is decisive.
§ 3 Right of Withdrawal
In addition to a potential statutory right of revocation SenseCom IT grants a 30-day right of withdrawal.
If the customer is not satisfied with the software, SenseCom IT will within the first 30 days after the purchase reimburse 100% of the purchase price - no matter what the reason is. This 30-day right of withdrawal is only granted customers who are consumer (“end user”). Therefore it is for example not applicable to resellers or distributors.
§ 4 Conclusion of Contract
The contractual language is English. Any offer of SenseCom IT on the website is subject to change without prior notice. Therefore SenseCom IT is not obligated to perform if the service or the good is not available. A conclusion of contract and therefore a contractual obligation to perform shall arise, if SenseCom IT has confirmed the customer’s order in text form. The confirmation of order-receipt is not a confirmation of the order itself. Generally the delivery is being performed by download. In that case the conclusion of contract commences by sending the contract-confirmation by email along with the download link and the key to unlock the software. These terms are also included in the contract-confirmation.
§ 5 Value Added Tax
Delivery within Germany:
the price displayed in the invoice includes VAT.
Delivery within the EU:
if a VAT-ID. is provided, the prices are net. The respective VAT has to be paid by the customer.
Delivery outside of the EU:
the prices shown on the invoice are net, VAT is not applicable.
§ 6 Payment Terms
1. The Payment is due in total upon receipt of the invoice
2. A cash-discount-deduction requires a prior written consent of SenseCom IT.
§ 7 Limited Warranty, Limited Liability
The following terms apply for NON-US CUSTOMERS:
A. Limited warranty
1. It cannot be warranted, that the software is compliant with the customer’s purpose and the customer’s hard- and software.
2. Although SenseCom IT created the software with diligence and expert knowledge, the contractual parties are aware that according
to current state of the art it is not possible to create 100% defect-free software. The customer is therefore obligated, not only to comply with his duty to mitigate damage, to completely backup his data in appropriate regular intervals, before the initial installation and before update installations of the software and immediately when any indication of defect occurs.
3. The agreed character of the product is being defined by the product specifications. Insofar a product specification is not given, the character of the product shall be deemed to be of average character and quality.
4. No warranty claim shall be given, if a deviation of the agreed character is only insignificant or the usability is only slightly affected. SenseCom IT might carry out improvements at any time.
5. The documentation will only be updated when significant changes arise and will be provided by download from SenseCom IT’s website.
6. SenseCom IT is entitled to choose in its own discretion if a defect shall be remedied by way of fixing or delivery of a new product, e.g. the customer’s software be updated or a new software be delivered.
7. The customer is obligated to cooperate in remedying the defect, especially by downloading and installing an update.
8. In the best of SenseCom IT’s knowledge the software is free of third persons’ intellectual property rights, which could affect or exclude the customer’s contractual use of the software. The customer is obligated to immediately inform SenseCom IT of any indication of claims arising from an alleged violation of such intellectual property rights. Upon request the customer is also obligated to leave the defense against these claims to SenseCom IT and, when requested, to support SenseCom IT to a reasonable extent.
In case an infringement of third parties’ intellectual property rights by the performance of SenseCom IT be established legally binding, SenseCom IT will at its own discretion and cost either obtain the according license for the use of the violated intellectual property rights for the customer or alter the performance in such a way that the violation is ended but the software still complies to the contractual specifications. In case both remedies imply disproportionate costs and / or expenditure, SenseCom IT is entitled to withdraw from the contract and will then restitute performances obtained from the customer and, where required, compensate the customer for damages incurred.
9. The defects liability period is one year (pursuant to § 9 subsequence 3). Claims arising out of defects prescribe after one year beginning with their coming to existence.
10. In case the customer lodged a defects liability claim against SenseCom IT and it emerges that either there was no defect or SenseCom IT is not liable for the defect, the customer has to compensate SenseCom IT for all incurred expenses.
11. The remedy of defect by way of fixing the product shall be deemed to have failed when attempted vainly the second time. The customer then may at its own discretion either abate or withdraw. The customer’s right to claim compensation for damages according to these terms and conditions remains untouched.
12. The examination and notification duties according to § 377 HGB (German Commercial Code) are applicable. The customer cannot base a claim on detected defects not given notice of to SenseCom IT immediately.
13. The customer shall illustrate the defect as precisely as possible.
14. The customer is obligated to take measures supporting the identification of the defect and its cause to a reasonable extent.
B. Limited liability
SenseCom IT is liable for damages arising from personal injury (culpable injury of life, body, health). This also applies for other damages arising from a deliberate or gross negligent violation of duties. SenseCom IT is also liable for damages arising from a slight negligent violation of an essential contractual duty and which are a typical consequence with respect to this type of contract. The latter liability is limited to the sum of three times the license fee. SenseCom IT’s liability for all other damages, which are not caused deliberately or gross negligently, is excluded. An essential contractual duty is given, if its fulfilment forms a precondition for the proper performance of the contract and in which fulfilment the customer normally relies on legitimately. A liability according to the Produkthaftungsgesetz (German Product Liability Code) remains unaffected.
The following terms apply for US-CUSTOMERS ONLY:
BEGIN of regulations concerning US-customers only.
BEGIN of regulations governed by the Law of Massachusetts.
This license contains rights and restrictions associated with the use of the software. The following regulations concerning Limitation of Warranty and Limitation of Liability shall be governed under and construed pursuant to the laws of the Commonwealth of Massachusetts, without reference to choice of law principles.
A. Limitation of Warranty
1. SenseCom IT warrants that it has the full power and authority to enter into this agreement and to grant the licenses described in this agreement.
2. SenseCom IT warrants that for a period of six months after the customer accepts the terms of this agreement, the media, if any, on which the software is delivered, will be free from defects in material and workmanship under normal use. If any media is found to be defective during the warranty period, SenseCom IT will replace the defective media.
3. SenseCom IT warrants that for a period of two months after the customer accepts the terms of this agreement, the software will perform substantially as described in specifications for the software, including any user manuals and technical documentation. If a defect in the software causes the software not to perform according to this warranty, SenseCom IT will use reasonable efforts to promptly correct such defects. If SenseCom IT is unable within a reasonable period of time to correct such defects, customer may, at his option, and his sole remedy, terminate the license and return the software, including all related documentation, to SenseCom IT and receive a full refund of any license fees paid for the software.
4. Limitations of Warranty. SenseCom IT does not warrant that the operation of the software will be uninterrupted or error free. Furthermore, SenseCom IT does not warrant that the functions contained in the software will meet customer's requirements.
5. Disclaimer. Software is provided "AS IS," without a warranty of any kind, except as set forth above.
SENSECOM IT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
B. Limitation of Liability
1. SENSECOM IT will not be liable to CUSTOMER for any incidental, consequential, or special damages arising under this Agreement. SenseCom IT will not be liable for any amount of damages in excess of (i) 5,000 USD or (ii) the cumulative license fees paid or payable under this Agreement, whichever is greater. This limitation will not apply to damages related to injuries to persons or damage to tangible personal property resulting from the negligence or willful acts of SenseCom IT.
2. Customer will not be liable to SenseCom IT for any incidental, consequential, or special damages arising under this Agreement. Customer will not be liable for any amount of damages in excess of (i) 5,000 USD or (ii) the cumulative license fees paid or payable under this agreement, whichever is greater. This limitation will not apply to damages related to injuries to persons or damage to tangible personal property resulting from the negligence or wilful acts of customer.
END of regulations concerning US-customers only.
END of regulations governed by the Law of Massachusetts.
§ 8 Limitation of Time
1. The limitation period for claims arising from deficiency as to quality as well as title - no matter of which legal basis - is one year.
2. The limitation period according to subsequence 1 - pursuant to subsequence 3 - also applies to claims for compensation for damages, no matter of which legal basis. It also applies if the claim is not connected to a defect.
3. The limitation of time according to subsequence 1 and 2 applies with the following preconditions:
a) The limitation of time does not apply if the damage was caused deliberately.
b) The limitation of time does not apply to claims for compensation for damages of life, body or health, claims arising of a culpable violation of essential contractual duties or claims according to the Produkthaftungsgesetz (German Product Liability Code).
B. License Conditions
§ 1 Scope of Application
The License Conditions of section B govern exclusively the right to use of the software of SenseCom IT.
§ 2 Definitions
Site: Defined as territorially limited area (e.g. campus, premises) of which the diameter does not exceed 6.21 miles (10 kilometers), and which is used exclusively by the customer;
Customer: Contract partner who licensed SenseCom IT’s software;
User: Person working with the software.
Reverse Engineering: Analyzing the software with the aim of reproducing it
Decompilation: Translating backwards the unit code into a program code readable by human
Disassembling: Transforming binary encrypted computer language of a executable program into an assembler language (hardware orientated programming language)
§ 3 License Grant
SenseCom IT grants to the customer a non-exclusive perpetual license to use the software in the given amount and under the conditions of these License Terms. The documentation will be provided in electronic form. The delivery of the software will be effected in object code. SenseCom IT will not deliver source code.
The “Commercial-Edition” is intended to be used exclusively by the customer. For the grant of the license a fee has to be paid.
In case of any attempt to share or transfer a license, e.g. by resale or lease, without the prior consent in text form SenseCom IT reserves it’s right with regard to claims for damages.
The customer purchases a certain number of licenses according to the order-confirmation. The customer is only entitled to install and use the purchased number of licenses simultaneously. A license is not bound to a certain computer and can be used on several systems, as long as the software is not launched multiple times with the same license.
In case the granted amount of simultaneous installations is exceeded, SenseCom IT has to be informed thereof immediately and the exceeding installations have to be prevented by adequate measures.
Can this exceedance not be prevented by such technical or organizational measures, the customer is obligated to purchase the according amount of licenses.
2. Freeware & Special Edition
SenseCom IT offers free-of -charge versions of the software with limited operating time and / or limited features. No maintenance is available for those versions. In case maintenance is being performed, this is only due to good-will, does not constitute any obligation for SenseCom IT and might be stopped at any time. The freeware and the trial-edition might be installed and used on any amount of computers for private or business purposes at no charge. The freeware and the trial-edition might be shared to third persons (e.g. on websites or ftp-servers), if the software is being offered unaltered and free of charge. Any offer of the freeware or special edition against any kind of payment, fees or similar (e.g. chargeable download, magazine-CD) requires a prior written permission of SenseCom IT.
§ 4 Updates & Activation
1. To receive the daily required updates of the software and its databases, Botshields has a built-in update-mechanism which contacts the servers operated by SenseCom IT every hour. When requesting updates, the currently installed software-version as well as a unique Installation-ID consisting of 30 random chars is transmitted. This shall help to prevent any multiple use of the software not in accordance with the license terms.
1. If licensed, Botshield needs to be activated for use via Internet. Without activation the customer cannot use the software with a purchased license.
2. By activation, the unique Installation-ID is also being sent to SenseCom IT to allocate the software to a certain computer. Activation does not transfer any personal data enabling the identification of the computer user or the computer.
3. The acquired data is solely used for activation-purposes.
4. Changes in the hardware or software of the computer do not affect a previously successful activation.
5. If a successfully activated installation of the software is moved to another computer a new activation for the new computer is necessary. SenseCom IT may refuse the reactivation, if the customer does not account for the contractual use of the software.
§ 5 Scope of Use
1. Acts of Use
The right of use is limited to the following acts within the scope of contractual use:
- Installation of the software on the intended computer(s) and the production of a security backup; security backups on data storage mediums, which are normally intended to be circulated (such as CD, DVD), have to be marked with an indication of SenseCom IT’s intellectual property right and a prohibition of its transfer.
- loading of the software into the computer’s RAM and its processing,
- necessary measures in terms of error-correction according to § 69d sec. 1 UrhG (German Copyright Code) and
- decompilation to achieve interoperability according to § 69e sec. 1 UrhG
- production of a backup of the computer the software is installed on (Image)
§ 6 Intellectual Property Rights
1. The software and its manual are copyrighted. All intellectual property rights in connection with them solely belong to SenseCom IT.
2. The customer may without permission of SenseCom IT not use the software and its operation instructions beyond above mentioned acts, e.g. he may not alter, not transfer to another programming language, not copy (e.g. by further installations of the Software), not redesign, not circulate, not share or - pursuant to § 3 No. 1 - grant access to third persons to the software, neither partially nor temporarily. Reverse engineering, de-compilation or disassembling is prohibited.
3. In case of usage of the software in breach of these regulations, the customer has to pay liquidated damages in the amount of treble license fees.
The license fee for the commercial-edition includes 3, 6 or 12 month of maintenance according to the purchased license.
§ 1 Maintenance Services
During the period of the maintenance the customer is eligible to download the latest version of the software and to request to be provided with the according license key.
During the period of maintenance the customer also receives technical support via E-Mail.
§ 5 Availability
SenseCom IT does not guarantee the permanent availability of its website, downloads (including updates, instruction-manuals, freeware, etc.), as well as support-systems. The customer is obliged to protect his installation-files and his license keys, as they are prerequisites for any reinstallation.
§ 1 Data Protection
1. SenseCom IT complies with the effective data protection regulations according to the BDSG (German Data Protection Act).
2. The customer is obliged to give accurate and complete information with regard to the person and to the company where necessary during the fulfillment of the contract. In case of changes to personal data relevant to the contract the customer shall inform SenseCom IT immediately. Additional costs, that SenseCom IT incur due to wrong or uncorrected data information (e.g. re-delivery, address inquiry), are borne by the customer.
3. The personal data acquired by SenseCom IT serves to compile and carry out orders as well as invoices.
4. The customer is entitled to be informed of his personal data acquired by SenseCom IT free of charge.
5. The customer is entitled to request correction, deletion or blocking of his personal data acquired by SenseCom IT.
6. The customer is entitled to object the sending of product-information at any time.
§ 2 Offsetting
Any offsetting of claims of SenseCom IT by the customer is only allowed if the customer’s claim, with which SenseCom IT’s claim shall be set off, is undisputed or established by legally binding court rule.
§ 3 Place of Performance and Court of Jurisdiction
1. Place of performance is Essen, Germany, if the customer is merchant in terms of the HGB (German Commercial Code), corporate body under public law, or special fund under public law.
2. In case the customer is merchant in terms of the HGB (German Commercial Code), corporate body under public law or special fund under public law, exclusive jurisdiction for all disputes arising out of this contract or in connection with it shall be the relevant court of Nuremberg, Germany. The same applies if the customer has no place of general jurisdiction within the Federal Republic of Germany or if neither his place of residence nor his main residence is known to SenseCom IT. SenseCom IT remains entitled to file a suit or commence other legal measures at the customer’s general place of jurisdiction.
§ 4 Choice of Law
Any dispute arising out of the contract or in connection with it shall be exclusively governed by the Laws of the Federal Republic of Germany. The CISG and the Choice of Law of Conflicts shall not apply.
§ 5 Severability Clause
If provisions of these General Terms and Conditions should be or become partly or wholly void, the remaining conditions shall remain effective.
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