This End User License Agreement (“EULA”) is a legally binding agreement between licensee end user (“End User”) and Operaio GmbH (“Operaio”) setting forth the terms and conditions governing the use and operation of Operaio’ proprietary computer software products (the “Software”) and the written technical specifications for the use and operation of the Software (the “Documentation”). Where the sense and context permit, references in this EULA to the Software include the Documentation. By downloading and installing, copying, or otherwise using the Software, and/or otherwise accepting this EULA, End User agrees to be bound by the terms and conditions of this EULA. If End User does not agree to or accept the terms of this EULA, End User may not access or use the Software
1.1 “Fee(s)” means any License, Maintenance, professional services, consulting, or other Fees agreed to by the parties as set forth in a Transaction Document. 1.2 “Transaction” and “Transaction Document” have the following meanings: “Transaction(s)” is a License transaction pursuant to which End User: i) accepts this EULA as provided above and ii) takes actual or constructive possession of the Software. A Transaction may take place by any lawful means, electronically or in writing, and may be confirmed by a) purchase orders, credit orders, commitment letters, license keys, amendments to this EULA or other similar materials, signed or unsigned, (each a “Transaction Document(s)”), or b) by the conduct of the affected parties. A Transaction may be initiated and implemented by any entity that is directly or indirectly a party to it, including End User, Operaio, or authorized third party distributors, dealers, and/or other resellers of the Software. A Transaction Document may contain usage, business, legal and other terms, and conditions agreed to by the parties. The foregoing notwithstanding, each Transaction will require that: i) this EULA be accepted by End User and ii) End User obtains actual or constructive possession of the Software. In the event of a conflict or inconsistency between the terms and conditions of this EULA and those set forth in a Transaction Document, the terms and conditions of the Transaction Document will govern and control.
2. Grant of License
When the Software is delivered to End User as part of a Transaction, End User will have, subject to the terms and conditions of this EULA, a perpetual, non-transferable, non-exclusive, license (“License”), to use the Software in object code format, solely for End User’s internal business purposes for the management and processing of its own data and not the data of any third party(ies). Operaio Software License is perpetual, unless the Software is delivered to End User as part of a Transaction on a non-perpetual basis for a defined period, in such case, the End User’s right to use such Software will cease on the end date of the defined period.
3. Additional Terms
Nothing contained in this EULA is intended to prohibit or restrict the parties from mutually agreeing to enter into separate terms and conditions that i) modify or supplement the terms and conditions (including business and/or financial terms) of this i) EULA or the License granted to End User pursuant to this EULA; or ii) create or modify the terms a particular Transaction.
4. Trial License
A License designated as a “Trial” License in a Transaction Document authorizes End User to use one (1) copy of the Software for a limited period for non-production evaluation or demonstration purposes only.
5. Not for Resale License (NRL)
A License designated as a “Not for Resale” License in a Transaction Document authorizes End User to use one (1) copy of the Software with full functionality for evaluation or demonstration purposes only, and for a defined period of time.
6. Copyright and other Restrictions
The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold. The Software contains copyrighted material, trade secrets and other proprietary material of Operaio. All right, title and interest in the Software always remains with Operaio. In no event will End User directly or indirectly permit the Software to be decompiled, reverse engineered, or disassembled. End User will not disclose, transfer, or otherwise make available the Software, or the results of any benchmark or other tests of the Software, to any third party without the prior written consent of Operaio. End User shall not remove any proprietary notices from the Software. End User may make one copy of the Software solely for backup or archival purposes.
7. Limited Warranty, Limitation of Liability
Operaio warrants that it has the right and authority to grant the License under this EULA. Operaio will defend or, at its option, settle any action against End User based upon a claim that its use of the Software infringes any patent, copyright or other intellectual property right of a third party, and will indemnify End User against any amounts awarded against End User as a result of the claim, provided Operaio is promptly notified of the assertion of the claim and has control of its defense or settlement. Operaio warrants that the Software, in its unmodified form as initially delivered or made available to End User, will perform substantially in accordance with the Documentation for a warranty period of ninety (90) days from the date the Software is delivered to End User. In the event the Software fails in a material respect to operate in accordance with the Documentation during the warranty period and Operaio is unable to correct the defect, Operaio’ sole and exclusive liability and End User’s sole and exclusive remedy shall be a refund of the License fee, if any, paid by End User for the Software. In the event a reported problem with the Software is End User’s fault, End User agrees to reimburse Operaio for its correction efforts in accordance with its then standard rates. The foregoing limited warranty will not apply if failure of the Software is the result of damage or misuse caused by End User.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY THAT THE SOFTWARE IS FREE OF DEFECTS, MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OPERAIO OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OPERAIO DISTRIBUTORS OR RESELLERS, SHALL CREATE ANY WARRANTY IN ADDITION TO, OR IN ANY WAY INCREASE THE SCOPE OF, THE LIMITED WARRANTY.
In no event will Operaio, its affiliates, resellers, or distributors or suppliers be liable for any indirect, special, incidental or consequential damages arising out of the use of or inability to use the Software, including, without limitation, damages for lost profits, loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if advised of the possibility thereof.
This Agreement sets forth Operaio entire obligation and End User’s exclusive rights with respect to the Software and, except to the extent otherwise specifically provided in a purchase order or other written communication or advertising signed or jointly issued by both parties with respect to the Software, supersedes any conflicting terms of any purchase order and any other communication or advertising with respect to the Software. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected. The United Nations Convention for the International Sale of Goods will not apply.
Version: 1.0 (01.05.2020)