Date: Jan 2018
YOUR USE OF THE SWYX PRODUCT IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS EULA, YOU MAY NOT INSTALL OR USE THE PRODUCT.
1. About this EULA.
This EULA applies to all Swyx Software products and Documentation (collectively, “Products”) made available by Swyx Solutions AG (“Licensor”) to you, the end-user and/or purchaser ("Licensee" or "you"). “Software” means the Licensor computer program, in object code format, including without limitation firmware. The term “Software” also includes any updates, upgrades or other new features, functionality or enhancements to the Software made available to you. "Documentation" means any on-line read me, help files, or other related explanatory materials that accompany the Software. „Open Source Components” means certain portions of the Software (if any) that are not licensed under the terms of this EULA, but are instead licensed to Licensee under the applicable Open Source licenses, such as the BSD License or the GNU General Public License (GPL/LGPL). Information regarding Open Source Components in Swyx products can be obtained from the Open Source “textual link” on www.swyx.com, do-confluence.swyx.net/display/OSS/Open+Source+Software.
By purchasing a Product from an authorized reseller or by obtaining the product on any proper legal way, the end-user and purchaser (hereinafter referred to as "Licensee" or "you"), has acquired a copyright-protected product, maybe including Open Source Components for which only Open Source License conditions apply. Licensor retains all titles in these copyrights. Consequently, legal use of the Products requires Licensee’s consent to the following End-User-License-Agreement (hereinafter “EULA”), which forms part of the full purchase agreement and which was made available before purchase.
Licensee confirms that this EULA text was made available before purchase and consents to and approves all terms and conditions of this EULA by explicitly re-confirming this EULA.
2.1. 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.
2.2. The Product is licensed, not sold, to you by Licensor. By purchasing this Product, and subject to the terms and conditions of this EULA, Licensee is hereby granted a limited, non-exclusive, generally non-sublicensable, nontransferable right to install and use one copy of the object code version of the Product, and only as follows:
2.2.1. 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 Section 2.3. This does not include SwxyDataCenter- (in some markets called “SDC”) based Products which may be installed and used in multiple instances on devices of the Licensee.
2.2.2. 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 Pack). If Licensee has also acquired the option “SwyxStandBy”, he is entitled to install “SwyxServer” on an additional server system to be used as standby system for maintenance or hardware failures of SwyxServer.
2.2.3. 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.
2.2.4. The desk top based client Products may be installed and used on multiple devices of the Licensee.
2.2.5. The control algorithms for generating Licensee specific license keys as described in the following and 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 EULA. Notwithstanding the provisions of Section 2.2 a granted limited non-exclusive license is sublicensable in case that products are offered via SwyxDataCenter-based Products.
2.3 After installing the Products, Licensee initially has a one-time, limited right to use the Product for a period of thirty (30) days after installation and in accordance with the terms and conditions of this EULA by entering a supplied “Temporary License Key”. Within this period, Licensee shall register the software 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 time-restricted right to use into a usage right unrestricted by time.
2.4. In consideration of Licensee's consent to this EULA, 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 Section 10 or Section 11.
2.5. For technical reasons, subsequent changes to the originally selected hardware configuration may require Licensee to request and reload a new Permanent License Key to maintain the perpetual right to use the software (hereinafter referred to as “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 License Key and not to pass on the License Key to any third party
2.6. Reproduction, lending, rent, barter or exchange of Products and/or other transactions circumventing the terms of this EULA are not permitted without the explicit written consent of Licensor.
2.7. The Licensee is expressly prohibited from editing, revising, changing or otherwise modifying or seeking to decompile the Product’s object code or to attempt to reverse engineer or otherwise generate source code versions therefrom. , unless explicitly permitted to do so pursuant to applicable mandatory law. If the Licensee wishes to reverse engineer, decompile or disassemble the Product (collectively, "Decompilation") for the purpose of achieving interoperability with other computer programs, if allowed by law, the Licensee shall contact the Licensor before Decompilation of the Product’s object code and request the information necessary for the achievement of such interoperability. Licensor will consider supply of such information necessary for interoperability in due course and inform the Licensee accordingly.
2.8. Save for Section 2.2. the Licensee shall have no right to grant any sublicenses with respect to the Product or any component(s) thereof. Open Source Components however are available under the terms of the applicable Open Source License(s):
2.9. Except for the license granted to the Licensee hereunder, the Licensee shall have no right, title or interest in and/ or to the Product or any component(s) thereof, including, without limitation, the documentation, or to any of the patents, copyrights, trade secrets, trademarks, mask works, inventions, source code, object code, listings and documentation related thereto. This also applies to all revisions, modifications, alterations, and derivative works thereof in all forms.
2.10. The Licensee is expressly prohibited from removing or modifying any references to copyright, the marking of other industrial property rights or serial numbers and other features that serve to identify the Product. The removal of copy protection or similar protective routines is not allowed.
2.11. The Licensee may not block, disable, or otherwise affect any advertising, advertisement banner window, links to other sites and services, or other features that constitute an integral part of the Product. The Licensee may not release the results of any performance or functional evaluation of any of the Product to any third party without prior written approval of Licensor for each such release. The Licensee may not cause or permit any third party to do any of the foregoing.
2.12. Third party software, except for Open Source Components. Licensee acknowledges that the Product may contain copyrighted software of Licensor's suppliers which are obtained under a license from such suppliers ("Third Party Software"). All third party Licensors and suppliers retain all right, title and interest in and to such Third Party Software and all copies thereof, including all copyright and other intellectual property rights. Licensee's use of any Third Party Software shall be subject to, and Licensee shall comply with, the terms and conditions of this EULA, and the applicable restrictions and other terms and conditions set forth in any Third Party Software documentation or printed materials, including without limitation an end user license agreement.
2.13. Proprietary Rights. You acknowledge and agree that the Product, except for Open Source Components, belongs to Licensor or its Licensors. You agree that you neither own nor hereby acquire any claim or right of ownership to the Product or to any related patents, copyrights, trademarks or other intellectual property. Licensor and its Licensors retain all right, title and interest in and to all copies of the Product at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. This license is not a sale of the original or any subsequent copy. The Product is protected by copyright and other intellectual property laws and by international treaties. You may not make any copies of the Product except for your own personal use. Any and all other copies of the Product made by you are in violation of this license. All content accessed through the Product is the property of the applicable content owner and may be protected by applicable copyright law. This license gives you no rights to such content. All trademarks used in connection with the Product are owned by Licensor, its affiliates and/or its Licensors and other suppliers, and no license to use any such trademarks is provided hereunder. All suggestions or feedback provided by you to Licensor with respect to the Product shall be Licensor's property and deemed Confidential Information of Licensor.
3. Future extensions of usage rights (Upgrade).
3.1. 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 Section 2.3 and Section 2.4 may become necessary
3.2. 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.
4. Subsequent improvements or extensions of scope of operation.
4.1. 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, make the Product operational in other system environments (Type A), or add extended functionality (Type B). The Licensor will develop such Update Versions under its sole discretion and will provide such Update Versions according to the regulations of Section 4.2 below. Licensee shall have no entitlement to Update Versions of each category.
4.2. 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.
4.2.1. Update Versions offered outside of any 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 Section 2.3 and Section 2.4.
4.2.2. By purchasing "Swyx Update Service (SUS)" licenses or by entering into a software maintenance contract (hereinafter referred to as "Swyx Innovation"), 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.
5. Due Care and Caution of Licensee during Use of Product
5.1. As with all software products, and although rigid quality assurance measures have been taken by the 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 which are not an integral part of the Products but are 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 Products at all times and, thus, the temporary failure of certain functionalities provided by these products during normal operation.
5.2. 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. These shall include state-of-the-art measures to maintain the operation of the local IP data network 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.
5.3. 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.
LICENSOR AND ITS LICENSORS MAKE NO WARRANTY AS TO THE PRODUCT, INCLUDING WITHOUT LIMITATION UNINTERRUPTED USE, ACCURACY, AND DATA LOSS, AND INCLUDING WITHOUT LIMITATION THE PRODUCT'S RELIABILITY DURING AN EMERGENCY. LICENSOR AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF LICENSOR KNOWS OR SHOULD HAVE KNOWN OF SUCH PURPOSE), RELATED TO THE PRODUCT, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS EULA. LICENSOR AND ITS LICENSORS DO NOT WARRANT THAT THE PRODUCT OR ANY RESULTS OF USE THEREOF WILL BE FREE OF DEFECTS, ERRORS OR VIRUSES, RELIABLE OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS OR IN A PARTICULAR ENVIRONMENT OR THAT ERRORS THEREIN, IF ANY, WILL BE CORRECTED.
IF THE PRODUCT IS FOUND TO BE SUBSTANTIALLY DEFECTIVE WITHIN A PERIOD OF SIX MONTHS AFTER THE PURCHASE LICENSEE SHALL ONLY BE ENTITLED TO A REPLACEMENT OF THE PRODUCT, § 439 BGB. OTHER OR FURTHER LIABILITY EXCEPT FOR LIABILITY FOR FRAUDULENT INTENT, INTENT OR GROSS NEGLIGENCE, DAMAGES TO LIFE OR PERSONAL INJURY OR MANDATORY LIABILITY ACCORDING TO APPLICABLE LAW (PRODUKTHAFTUNGSGESETZ) SHALL BE EXCLUDED.
"Confidential Information" shall mean the Product and all other information disclosed to you that Licensor characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least three (3) years after termination of this EULA, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Licensor. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Licensor in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and will cooperate with Licensor in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Licensor prior to such disclosure to allow Licensor an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Licensor in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
9. Injunctive Relief.
You acknowledge and agree that your breach or threatened breach of this EULA shall cause Licensor irreparable damage for which recovery of money damages would be inadequate and that Licensor therefore may obtain timely injunctive relief to protect its rights under this EULA in addition to any and all other remedies available at law or in equity.
10. Test/Beta Versions of Product.
10.1. If Licensee is provided with a Product version that is expressly referred to as "Evaluation Version" or "Beta Version", typically free of charge, 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.
10.2. Test/Beta Versions shall terminate upon (i) the termination by the Licensor, (ii) the discontinuation of the Test/Beta Version by the Licensor, (iii) the initial general release of a commercial version of the product, or (iv) with the delivery of a final version of the product to the Test/Beta Version end-user.
10.3. 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.
11. Demo versions of Product.
If Software or Products are made available to Licensor referring to them as “demo versions” or similar (“collectively referred to as “demo versions”), Licensor shall only be entitled to use them for technology demonstrations. Such demo versions shall not be licensed or offered, or otherwise be acquired by Licensee or third parties and shall only be used for technology demonstrations. When using such demo version anyone shall bear the full and exclusive risk of use of such demo versions.
12. No support.
This EULA does not entitle you to receive from Licensor or its Licensors hard-copy documentation, support, telephone assistance, or enhancements or updates to the Product.
13. Term and termination.
This EULA and your right to use the Product may be terminated by you or by Licensor at any time upon written notice. This EULA automatically terminates if you fail to comply with its terms and conditions. Immediately upon termination, you shall return or destroy all copies of the Product in your possession, custody or control and if requested you shall certify to Licensor in writing that such return or destruction has occurred. The following sections of this EULA survive any expiration or termination hereof: 2 and 5 - 16.
14. Export Controls.
The Product and the underlying information and technology and this EULA are restricted to countries and individuals which are not embargoed under UN, EU or other applicable regulations.
15. Compliance requests
We comply with all applicable laws and regulations in our jurisdiction and many other jurisdictions. If Government entities or private organisations require particular statements regarding compliance with national or transnational regulations and laws please refer to compliance for an individual statement regarding your request.
16.1. This EULA constitutes the entire EULA between the parties concerning the subject matter hereof, which may only be modified by a written amendment signed by an authorized executive of Licensor.
16.2. Except to the extent applicable law, if any, provides otherwise, this EULA shall be governed by the laws of Germany, excluding the UN – CISG (16.4).
16.3. Unless licensor is a consumer, the parties agree that jurisdiction for any claim or dispute arising from the use of the Licensor Product resides in the courts of Dortmund, Germany.
16.4. This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
16.5. If any part of this EULA is held invalid or unenforceable, that part shall be construed to reflect the parties' original intent, and the remaining portions remain in full force and effect, or Licensor may at its option terminate this EULA.
16.6. The controlling language of this EULA is English. If you have received a translation into another language, it has been provided for your convenience only.
16.7. A waiver by either party of any term or condition of this EULA or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
16.8. You may not assign or otherwise transfer this EULA or any rights or obligations herein. Licensor may assign this EULA to any entity at its sole discretion.
16.9. This EULA shall be binding upon and shall inure to the benefit of the parties.