SW License Agreement & Warranty Disclaimer
LYNX Technik AG
Effective date: 5.SEP.2016
Last revised: 5.SEP.2016
End User License Agreement and Software Warranty ("Agreement")
This Agreement is made and entered into by LYNX Technik AG ("LYNX") with head office at Brunnenweg 3, 64331 Weiterstadt, Germany and the end user as identified in the Order ("Licensee"). The Agreement shall apply to all Software and Updates offered by LYNX through the LYNX greenStore available under www.lynx-technik-greenStore.com ("greenStore").
Important: Please read this Agreement carefully. It is very important that you check that you are purchasing LYNX Software and Updates in the GreenStore or LYNX equipment from an Authorized Source and that you, or the entity you represent have been registered in the GreenStore as the Licensee for the purposes of this Agreement. If you are not registered as the Licensee in the GreenStore you are using the Software or Updates without any warranty and LYNX is not liable for the use of the Software or any Updates.
LYNX is willing to license this Software to you only upon the condition that you purchased the Software from an Authorized Source or by the GreenStore and that you accept all of the terms contained in the Agreement. By downloading, installing, or using the Software, you are representing that you purchased the Software from an Authorized Source or by the GreenStore and binding yourself to the Agreement. If you do not agree to all of the terms of the Agreement, then LYNX is unwilling to license the Software to you and you may not download, install or use the Software.
Authorized Source means (a) LYNX; or (b) a distributor or systems integrator authorized by LYNX to distribute / sell LYNX equipment, software and services within Licensee's territory to end users; or (c) a reseller authorized by any such distributor or systems integrator in accordance with the terms of the distributor's agreement with LYNX to distribute / sell the LYNX equipment, software and services within licensee's territory to end users. A list of authorized sources is available online under www.green-machine.com
Documentation means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) pertaining to the Software and made available by an Authorized Source with the Software in any manner (including on CD-ROM, or on-line).
Order means the purchase of Software in the GreenStore by a registered GreenStore user.
Software means the software program in object code specified in the Order and provided to Licensee for download in the GreenStore. Software does not include Updates (as defined below).
Update means maintenance releases, additions, upgrades, modifications and new versions of the Software incorporating such additions and modifications which are made available to Licensee as part of maintenance service.
2. Intellectual Property
This is a license, not a transfer of title to the Software and Documentation, and LYNX retains ownership of all copies of the Software and Documentation. Licensee acknowledges that the Software and Documentation contain copyrighted material and trade secrets of LYNX or its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information, databases, work results in the form of a markup language.
(1) Conditioned upon compliance with the terms and conditions of the Agreement, LYNX grants to Licensee a non-exclusive and non-transferable and non-sublicensable license to use the Software and the Documentation solely for the Licensee´s internal business purposes on LYNX equipment. Licensee shall use the Software solely in connection with LYNX equipment purchased by the Licensee from an Authorized Source.
(2) Licensee may copy the Software only as far as the copy is required for the installation of the Software on LYNX equipment which is in Licensee’s immediate possession; the right to copy the Software is limited to the extent it is required for loading, display, running, transfer or storage of the Software on one LYNX equipment. To the extent required by applicable law, and at Licensee's written request, LYNX shall provide Licensee with the interface information needed to achieve interoperability between the Software and another independently created program, on payment of LYNX's applicable fee, if any. LYNX shall decide upon Licensee's written request to provide interface information on its sole discretion. If LYNX provides said information, Licensee shall observe strict obligations of confidentiality with respect to such information and shall use such information in compliance with any applicable terms and conditions upon which LYNX makes such information available. If LYNX refuses to provide the interface information upon written notice of Licensee, Licensee rights are determined by § 69e German Copyright Act (Urheberrechtsgesetz).
(3) Except as stated in Section 3 (1) – (2) of the Agreement no other rights are granted by implication, estoppel or otherwise. In particular Licensee may not:
(i) Transfer, assign or sublicense its license rights to any other person or entity (other than in compliance with any LYNX relicensing/transfer policy then in force), or use the Software on LYNX equipment not purchased by the Licensee from an Authorized Source, and Licensee acknowledges that any attempted transfer, assignment, sublicense or use shall be void;
(ii) Reverse engineer, decode, decompile, decrypt, disassemble or otherwise reduce the Software in whole or in part, except to the extent otherwise expressly permitted under applicable law;
(iii) Modify, adapt, translate, copy or transfer the Software in whole or in part or create derivative works based upon the Software, except to the extent otherwise expressly permitted under applicable law;
(iv) Work around any technical limitations in the Software;
(v) Publish, distribute, make available to the public the Software in whole or in part;
(vi) Sell, rent, lease or lend the Software;
(vii) Disclose, provide, or otherwise make available trade secrets contained within the Software and Documentation in any form to any third party without the prior written consent of LYNX;
(viii) Use the Software in any way other than expressly permitted under this Agreement.
(4) In order to use the Software, Licensee may be required to input a registration number or product authorization key and register Licensee's copy of the Software online at LYNX's website (www.lynx-technik-greenStore.com) to obtain the necessary license key or license file. License keys or license files do not themselves grant the legal right to use the Software.
4. License Fee and Delivery
(1) The License shall be obliged to pay the applicable license fee as set forth in the Order. The applicable fee shall be paid to LYNX by one of the payments methods specified in the Order. License may also use vouchers received from an Authorized Source for the fulfillment of his payment obligations. Unless otherwise agreed in writing, the Licensee shall be obliged to pay the License fee upon his Order. For evaluation or beta copies for which LYNX does not charge a license fee, the above requirement to pay license fees does not apply.
(2) Delivery of the Software shall be made electronically. Electronic delivery will be made by making the Software available for download in the GreenStore. Licensee is responsible for accessing the GreenStore and downloading the Software.
5. Software Updates
Notwithstanding any other provision of the Agreement: (1) licensee has no license or right to make or use any Updates unless licensee, at the time of making or acquiring such Update, already holds a valid license to the original Software and has paid the applicable fee to an Authorized Source for the Update; (2) use of Updates is limited to LYNX equipment supplied by an Authorized Source for which licensee is the original end user purchaser or lessee or otherwise holds a valid license to use the Software which is being updated.
6. Limited Warranty
(1) Warranty for material defect
(i) The Software provided by LYNX shall be substantially in accordance with the Documentation. Rights in case of defects shall be excluded in the case of minor or immaterial deviations from the agreed or assumed characteristics nor in the case of just slight impairment of use. Descriptions of the Software in the Documentary or any other Software descriptions shall not be deemed guaranteed unless separately agreed in writing. In respect of Updates, Licensee’s rights in case of defects shall be limited to the new features of the Update compared to the previous version release.
(ii) If Licensee demands replacement because of a defect, LYNX has the right to choose between the improvement, replacement delivery or replacement of the Software. The remedying of the defect may also take place through the delivery or installation of a new program version or a work-around. If the defect does not or not substantially impair the functionality, then LYNX is entitled, to the exclusion of further rights in case of defects, to remedy the defect by delivering a new version or an Update as part of its version, Update and upgrade planning.
(iii) Defects must be notified in writing to LYNX with a comprehensible description of the error symptoms, as far as possible evidenced by written recordings, hard copies or other documents demonstrating the defects. The notification of the defect should enable the reproduction of the error. This shall not affect the statutory obligation of Licensee to inspect and notify defects.
(iv) Licensee’s rights in case of defects are limited to 12 (twelve) months and the period shall begin on the date of delivery of the first copies of the Software including Documentation. In respect of the delivery of Updates, the period for such deliverables shall in each case begin on the date of delivery.
(v) Licensee shall inspect the delivered items without delay for any transport damage and other apparent defects preserve the appropriate evidence and assign any claims for recourse to LYNX while handing over the documents.
(vi) Any claims for damages are subject to the liability limitations set forth under Section 7. of this Agreement.
(vii) Amendments or additions to the Software which Licensee carries out itself or through third parties, shall cause Licensee’s rights in case of defects to be cancelled, unless Licensee proves that the amendment or addition did not cause the defect. LYNX shall also not be responsible for defects, which are caused by improper use or improper operation or the use of unsuitable means of operation by Licensee.
(2) Warranty for defects of title
(i) The Software delivered or provided by LYNX shall be free from third party rights, which prevent the use in accordance with the Agreement. Excepted from this are customary retentions of title.
(ii) If third parties are entitled to such rights and they pursue these, Licensee shall inform LYNX in writing without delay of the claiming of such rights by third parties and shall – upon request by LYNX – give LYNX all powers of attorney and authorisations which are necessary in order to defend the Software against the third party rights claimed.
(iii) To the extent that there are defects in title, LYNX is (a) entitled at its option to either (i) take legitimate measures to remove the third party rights, which impair the contractual use of the Software, or (ii) remedy the enforcement of such claims, or (iii) change or replace the Software in such a manner, that it no longer infringes the rights of third parties, provided and to the extent that this does not substantially impair the warranted functionality of the Software.
(iv) Section 6. (1) (iv), (vi) applies accordingly.
(3) LYNX’s warranty shall be limited to the claims set forth in this Section 6. LYNX does not assume any kind of guarantee.
(4) This Section applies to Updates as well.
7. Limitation of Liability
(1) LYNX shall be liable under the terms of the Agreement only in accordance with the provisions set out under Section 7. (i) to (iv):
(i) LYNX shall be unrestricted liable for losses caused intentionally or with gross negligence by LYNX, its legal representatives or senior executives and for losses caused intentionally by other assistants in performance ; in respect of gross negligence of other assistants in performance LYNX’s liability shall be as set forth in the provisions for simple negligence in (iv) below
(ii) LYNX shall be unrestricted liable for any damages arising from fatal injury personal injury or damage to health caused by the intent or negligence of Licensor, its legal representatives or assistants in performance.
(iii) LYNX shall be liable in accordance with the German Product Liability Act in the event of product liability.
(iv) LYNX shall be liable for losses caused by the breach of its primary obligations by LYNX, its legal representatives or assistants in performance. Primary obligations are such basic duties which form the essence of the Agreement, which were decisive for the conclusion of the Agreement and on the performance of which Licensee may rely. If LYNX breaches its primary obligations through simple negligence, then its ensuing liability shall be limited to the amount which was foreseeable by LYNX at the time the respective service was performed.
(2) LYNX shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken.
(3) IN NO EVENT WILL LYNX – IRRESPECTIVE OF ANY OTHER PROVISION IN THE AGREEMENT – OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF LYNX HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(4) This Section applies to Updates as well.
LYNX may terminate this Agreement and/or any licenses granted under this Agreement, if Licensee is in material breach of any of its obligations. Upon termination of this Agreement or any licenses granted hereunder Licensee shall immediately destroy or return all copies of the terminated or expired licensed Software and associated Documentation in their entirety, and duly certify the same in writing to LYNX. Termination of this Agreement or any license shall not relieve Licensee of its obligation to pay all fees that have accrued. The termination will not prejudice the rights and remedies of LYNX.
9. Governing Law; Exclusive Forum
This Agreement is controlled by and construed under the laws of Germany, excluding the UN Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) and notwithstanding any conflicts of law provisions. The Regional Court of Darmstadt (Landgericht Darmstadt) shall have exclusive jurisdiction over any claim arising under this Agreement, if Licensee is a businessman as defined in the German Commercial Code (Handelsgesetzbuch), a special funds entity organized under public law or a body corporate organized under public law. LYNX may also bring an action against Licensee at Licensee's general place of jurisdiction.
10. Export Control
The Software may be subject to national and international export control regulations ("Export Laws"). In any event of a transfer of goods, works and services Licensee shall comply with the Export Laws, in particular with the regulations of the Federal Republic of Germany, of the European Union and of the United States of America.
(1) Licensee’s purchasing terms and conditions shall not in any way supersede, modify, vary or otherwise supplement the terms of this Agreement.
(2) Licensee agrees to maintain and reproduce all copyright, proprietary, and other notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software.
(3) Where a German term has been inserted in brackets and/or italics it alone (and not the English term to which it relates) shall be authoritative for the purpose of the interpretation of the relevant term in the Agreement.
(4) A party's failure at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce such provision.
(5) Should any provision of this Agreement be or become invalid, this shall not affect the validity of the remaining terms. The parties shall in such an event be obliged to cooperate in the creation of terms which achieve such legally valid result as comes closest commercially to that of the invalid provision. The above shall apply accordingly to the closing of any gaps in the Agreement.