ARCHER

SOFTWARE LICENSE AGREEMENT

2016-12-19

Software license agreement for „Archer - Value Driven Graphics“ with „Archer Editor“, „Archer Editor Pro“, „Archer Runtime“ and „Archer Host“ by byteAgenten gmbh

Please read the following carefully: by downloading, installing, copying, accessing or otherwise using all or any part of the software „Archer Editor“, „Archer Editor Pro“, „Archer Runtime“ or „Archer Host“ you accept all the terms and conditions of this agreement with the limitations on: Restrictions, Limited warranty, Exclusion and Limitation of Liability. If you do not agree to the terms of this license, do not download, install, copy, access or use the software.

1. Definitions

a) The usage of the term “byteAgenten” in the following license agreement stands for byteAgenten gmbh, a privately held limited company located in 90461 Nuremberg, Frankenstr. 152, Germany.

b) "Software" means all of the contents of the files or other media with which this agreement is provided, including but not limited to byteAgenten or third party software information; related explanatory written materials or files, and documentation, and upgrades, modified versions, updates, additions, plug-ins and copies of the software, if any, licensed to you by byteAgenten.

2. Non-Exclusive Software License

a) The software and documentation accompanying this license agreement are licensed, not sold, to you by byteAgenten for use only under the terms of this license, and byteAgenten reserves any rights not expressly granted to you. You own the media on which the software is recorded or fixed, but byteAgenten and its licensors retain ownership of the software itself. This license allows you as a licensing party to use the software under the terms and conditions of this agreement. "Use" or "using" means to download, copy, install, access or otherwise benefit from using the functionality of the software in accordance with the documentation.

b) If you acquired a software license through one of the authorized resellers and as long as you agree to and comply to the terms and conditions of this agreement, byteAgenten grants you a license of the software as described in the quote and contract according to the following conditions.

 

2.1 General license agreement and use of the software

The licensing party may install and use the „Archer Editor“, „Archer Editor Pro“ and „Archer Runtime“ in accordance to the acquired license. The „Archer Editor“ is free for personal and business use. The „Archer Runtime“ is free for personal, non-commercial use and testing environments. The „Archer Editor Pro“ and „Archer Runtime“ require the purchase of a license when run on production environments for business use and any other commercially or profit oriented undertaking. The „Archer Editor Pro“ and „Archer Runtime“  Licenses may also be sold bundled, herewith the license terms of the bundle license apply. The licenses may not be shared or used concurrently on different computers. All other usage in a network is prohibited, including the direct usage by commands, data or executable code (i) from another computer that is not part of the internal company network, (ii) for internet services or web hosting services, (iii) from users that are not allowed to use the software based on the licensing concept with valid license, (iv) as component of a system or service that is accessible for more than in the license agreed usage.

 

2.2 Licensing „Archer Runtime“

2.2.1 Licensing the „Free“ Archer Runtime

The Archer Runtime may be used on servers and devices that are for private and personal use, including personal non-commercial public display. In business use and for commercial activities, this includes non-profit organisations, clubs and other associations, the Archer Runtime may be used on testing environments and for evaluation purposes only. The Archer Runtime may also be used free by students or in schools or universities for educational purposes. For business trainings and scientific use within funded research projects the Archer Runtime must be licensed as one of the following licenses.

2.2.2 The Archer Runtime „Enterprise“ license

If you license the „Archer Runtime“ as „Enterprise“, the license is in general based on server cores where the Archer Runtime is installed or running on a server on the internet or intranet. The applications on that server may be public or with personalized user-accounts and log-ins. The license is independent from the number of user accounts that have access to the application. The following applies for each server deployment you properly license.

a) You must obtain a separate license for each physical server or each virtual machine that runs as server. Physical server hardware partitions, or blades are considered to be a separate server.

b) You license either by physical processor cores on a physical server or by virtual cores that are available inside a virtual machine.

c) The number of cores of the „Enterprise" license that is acquired for each physical server or virtual machine must be equal to or greater than the number of physical cores or virtual cores.

d) You may use any number of running instances of the „Archer Runtime“ on a server to which you have deployed a license.

2.2.3 Licensing the Archer Runtime „Basic“ license

If you license the „Archer Runtime“ as “Basic”, the license is bound to the major release version at time of licensing and valid for usage on a public web server or single device. It is licensed for each public domain (eg. „www.mydomain.com“) or single device. The application, service or machine on which the Archer Runtime is installed must be publicly available or non-user specific, i.e. no user accounts or log-ins. The following applies for each domain and computing device/instrument where the „Archer Runtime“ is installed, e.g. an internet website, a smartphone, tablet, machine control panel or any other similar device.

a) You must obtain a license for each domain or device.

b) The number of licenses is determined at the time of purchase.

c) Additional licenses are required once the number of devices is greater than the number of acquired licenses.

 

2.2.4 Licensing the „Archer Runtime“ as „Product“ license

If you want to use the „Archer Runtime“ as part of any other software application or system for redistribution you must obtain byteAgenten’s prior written consent and must have received a „Product“ license before distribution of your application. If you license the „Archer Runtime“ as „Product“, the following applies.

a) You may incorporate copies of the „Archer Runtime“ into a target application and distribute the application as stated in the „Product“ license.

b) Unless your „Product" license states that you may use an unlimited number of „Archer Runtime“ Licenses, you agree to keep records of the numbers of the target applications you distribute. byteAgenten shall have the right, upon reasonable notice, to examine your records regarding such practices.

c) You must distribute your target application to end users with a license that acknowledges byteAgenten’s copyright, prevents further copying of the software (except for backup purposes), and expressly disclaims all warranties by byteAgenten.

d) byteAgenten offers no warranty to your end users. The software, when incorporated into a target application, is provided "as is" and without warranty of any kind. byteAgenten disclaims all warranties, either expressed or implied, including the warranties of merchantability, fitness for a particular purpose and noninfringement of third-party rights.

e) Any valid end-user licenses to target applications incorporating software granted by you under this agreement shall survive the termination of this agreement.

2.3 Backup copy

The licensing party may make backup copies of the software, provided the backup copy is not installed or used on any computer. The licensing party may not transfer the rights to a backup copy unless the licensing party transfers all rights in the software.

2.4 Software generated code

If not agreed otherwise, the licensing party may use generated code solely for applications that are connected with the software. 

3. Updates

If the software is licensed as an upgrade or update, then the licensing party may only use the software to replace a validly licensed version of the same software. The licensing party agrees that the upgrade or update does not constitute the granting of a second license to the software (i.e., the licensing party may not use the upgrade or update in addition to the software it is replacing, nor may the licensing party transfer the software which is being replaced to a third party). After the installation of an update or upgrade, no usage of the previous licensed version is allowed. The licensing of the updates and upgrades follows the license agreement.

In case the purchased license also includes a service fee for updates, the updates are valid for the purchased version of the software. The updates are made available to improve the stability and security of the required configuration. Service updates are only valid to the available license and do not grant the right for a higher software version of an upgrade.

4. Restrictions

4.1 General use of the software

The licensing party is not allowed to modify, adapt, copy or translate the software. The licensing party is not allowed to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the software. The licensing party may not rent, lease, loan or distribute the software or derivative works based upon the software or any part thereof. The software was developed to function as one single product and is provided as that. It is not required that you use all of the components of the software, however it is not allowed to install single components on different computers individually. Packaging of the software or parts of the software in a different way and reselling, renting or transmitting it in any form is not allowed.

4.2 Utilization of the software

The software is not intended for use in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control systems, life support machines or other equipment in which the failure of the software could lead to death, personal injury, or severe physical or environmental damage.

4.3 Transfer of rights

The licensing party may not transfer or assign rights under this license to another party without byteAgenten’s prior written consent.

4.4 Educational licenses

The education licenses are solely for educational purposes and may only be installed on computers of the school or university. The installation of the software on a private computer is prohibited as well as the usage of the software by staff members of the university for other purposes like research activities. The university is liable for all kind of misuse of the software. In the event of a misuse, the university has to pay the full current purchase price of the software for each of all already installed education licenses.

5. Intellectual Property Rights

The software and all authorized copies of the software that you create are the intellectual property of byteAgenten and its suppliers. The structure, organization and code of the software are valuable company secrets and confidential information of byteAgenten and its suppliers. Other than the described conditions of this agreement, byteAgenten does not grant you any rights of the intellectual property of the software and all non exclusively mentioned rights are reserved to byteAgenten and its suppliers.

6. Acquisition and termination of the licenses

a) The licensing party acquires licenses for the software from byteAgenten or authorized resellers. If purchased online via the online store of byteAgenten the amount due is payable immediately. A license key for the installation is transferred after the payment. The license key may not be handed over to third parties. In case the licenses are purchased in a separate contract the license key will be transferred once the payment has been received by byteAgenten.

b) The acquired license is effective until terminated. It will terminate automatically without notice from byteAgenten or judicial resolution if the licensing party fails to comply with any provision of this agreement. Upon such termination the licensing party must delete the software, all accompanying written materials and all copies thereof, and this agreement will survive any termination or cancellation of this license.

7. Limited warranty

byteAgenten warrants for a period of twelve months from your date of purchase that the software as provided by byteAgenten will perform substantially in accordance with the accompanying documentation, provided that it is used in the recommended configuration. Minor deviances of the functionalities do not justify warranty claims. The limited warranty is not valid for test and beta software.

byteAgenten’s entire liability and your sole and exclusive remedy for any breach of the foregoing limited warranty will be, at byteAgenten’s option, replacement of the software, refund of the purchase price, or repair or replacement of the software which is returned to byteAgenten.

This limited warranty is the only warranty provided by byteAgenten and its licensors expressly disclaim all other warranties, conditions or other terms, either express or implied (whether collaterally, by statute or otherwise), including but not limited to implied warranties, conditions or other terms of merchantability, satisfactory quality and/or fitness for a particular purpose with regard to the software and accompanying written materials.

Furthermore, there is no warranty against interference with your enjoyment of the software or against infringement of third party proprietary rights by the software. byteAgenten does not warrant that the operation of the software will be uninterrupted or error-free, or that defects in the software will be corrected. No oral or written information or advice given by byteAgenten or an authorized representative shall create a warranty.

8. Exclusion of liability

a) byteAgenten and its partners and suppliers provide the software and access to all sites, online services and certification services "as is" with all errors and expressly exclude all warranties, agreements, terms or conditions, express or implicit nature that are either from a business relationship or a commercial practice, or derived from law, custom or other provisions, notably in terms of performance, safety, lack of jurisdictional freedom, integration, marketability, undisturbed possession, or fitness for a particular purpose. The exception is the previous limited warranty or any warranty, condition or warranty that can not be excluded or restricted by national laws or allowed. These conditions shall survive termination of this agreement, regardless of the reason of contract termination. 

b) byteAgenten assumes liability only to the extent of the time of entering into the purchase contract typically foreseeable damage in respect of damages caused by a slightly negligent breach of a contractual obligation. byteAgenten is not liable for damage caused by a slightly negligent violation of non-essential contractual obligations. The limitations of liability do not apply to any mandatory statutory liability, in particular, to liability under the German Product Liability Act, liability for assuming a specific guarantee or liability for culpably caused personal injuries.

c) The licensor is subject to the terms of this agreement is obliged to take all reasonable measures to avoid and reduce damages, in particular to make backup copies of the Software and computer data.

d) Liability for test and pre-releases and utilization in software development systems. This is software that does not represent a final product from byteAgenten, and may contain bugs, errors and other problems that can lead to system or other failures and data loss. In these cases, you use the software at your own risk and byteAgenten does not accept any liability for the damage caused.

e) Software with time-limited functionality. If the software is a time-limited version functionality will stop working after a certain period or a certain number of launches following the installation or log-ins. The license will terminate after such period or number of launches unless it is extended by byteAgenten or you purchase a full license. Access to all files or results that were produced with such software or a related product is solely at your risk.

f) Online services. The Software or services may rely on systems that are operated by partners or suppliers or byteAgenten websites where products, information, software and services are maintained and where you have to rely upon or profit from. Your access to and usage of any website or online service is described by the terms and conditions, disclaimers and notices that are placed on such site or otherwise relating to such services. byteAgenten may at any time and for whatever reason change or terminate the availability of any website or online services. byteAgenten does not control or endorse web sites or online services by third parties and assumes no responsibility for this. Any deals between you and any third party in connection with a website or an online service, including delivery of and payment for goods and services and any other terms, conditions, warranties or representations associated with such deals are solely between you and the third party. If byteAgenten, its partners or third parties do not expressly agree in a separate agreement, you use the web sites and online services at your own risk.

9. Limitation of liability

To the extent not prohibited by law, in no event shall byteAgenten be liable for personal injury, or any incidental, special, indirect or consequential damages whatsoever, including, without limitation, damages for of profits, loss of data, business interruption or any other commercial damages or losses, arising out of or related to your use or inability to use the byteAgenten software, however caused, regardless of the theory of liability (contract, tort or otherwise) and even if byteAgenten or an authorized representative has been advised of the possibility of such damages.

The foregoing limitations and exclusions apply to the extent permitted by applicable law in your jurisdiction. byteAgenten aggregate liability and that of its suppliers under or in connection with this agreement shall be limited to the amount paid for the software, if any.

10. Adherence to license agreement

Businesses, companies or organizations, herewith agree that upon request from byteAgenten or its authorized representatives they proof and confirm within thirty (30) days that, at the time of the request, the use of any byteAgenten software is in accordance with the terms and conditions of this agreement. 

11. Place of jurisdiction, place of performance and application of law

For all possible disputes with byteAgenten from a business relation or its initiation – insofar legally admissible – the head office of byteAgenten is agreed upon as place of jurisdiction. The place of performance is the head office of byteAgenten.

12. Partial ineffectiveness

a) Should individual items of these clauses be ineffective, this does not affect the effectiveness of the other clauses. The ineffective clause is replaced by the valid clause which in its economic effect comes closest to the clause which is not effective.

b) This agreement will be governed by and construed in accordance with the laws of Germany.

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