license and support agreement
Contents
1. whichever is preferred graphomate is entitled to refuse the subsequent performance if this can only be carried out with disproportionate costs to graphomate In this case a withdrawal from the contract is possible Once the licensee has exercised his right to withdraw from this agreement the rights of use to the graphomate products shall also end In this event the licensee is obligated to remove the graphomate products from all storage media to destroy all copies of the graphomate products and to inform graphomate thereof in writ ing Withdrawal due to an immaterial defect is not possible If the licensee asserts warranty claims against graphomate and it becomes appar ent that either no defect is present or the alleged defect does not oblige grapho mate to warranty the licensee is obligated to reimburse graphomate for the time effort and expenses incurred if the licensee has acted with gross negligence or willful misconduct 13 Liability 1 graphomate is responsible for liability claims extending beyond the warranty only in the event of gross negligence or intent according to the statutory provisions In the event of slight negligence graphomate is only liable if a major contractual obli gation cardinal obligation is breached or in the event of default or impossibility to perform In the case of liability due to slight negligence the liability is limited to damages which are foreseeable and or typical A liability for lack2. in ac cordance to the specified provisions for use 2 Maintenance and support services for improper operation negligent or intentional damage to graphomate products or carriers on which they are recorded 3 Maintenance and support services for product parts with functions dependent upon other data processing programs like SAP BusinessObjects Dashboards Xcelsius or Design Studio standard components 4 Provision of graphomate products with additional functionalities not stipulated in the License and Maintenance Agreement 5 Maintenance and support services at installation sites of the products that are not listed in the License and Maintenance Agreement 6 Maintenance and support services for graphomate products which have been al tered by unauthorized interference with the source code 10 Confidentiality 1 The licensee is obligated to take the appropriate measures to prevent unauthor ized access by third parties to the graphomate products The employees of the licensee shall be advised on the compliance with these conditions and the provisions of copyright law 2 Both contract parties shall treat as confidential all non public data which has been marked as confidential and made available to the other contract partner to provide the services agreed upon 3 The obligation to confidentiality does not apply to ideas concepts know how and techniques related to information processing in general They shall not apply to data a
3. of guaranteed quality for malice personal damage legal defects pursuant to the German Prod uct Liability Act Produkthaftungsgesetz and the Federal Data Protection Act Bundesdatenschutzgesetz remains unaffected In the event of a warranty or liability claim against graphomate contributory negli gence on the part of the licensee or his employees is to be considered appropri ate in particular in the case of insufficient error reporting or insufficient data backup Data backup shall be deemed to be insufficient if the licensee has not taken adequate up to date precautionary measures to provide protection against external influences including computer viruses and other phenomena which may endanger individual data or entire sets of data 14 Free Versions of graphomate products 1 The licenses for the Free versions of graphomate products are provided free of charge They may be reproduced freely distributed and used although they may not be used for commercial purposes graphomate does not assume any warranty or liability maintenance and support for this version to the full extent permitted by law The entire risk as to the quality and the performance of the Free versions of graphomate products is with the licensee graphomate is in no event liable for any damages or consequential damages arising out of the use or inability to use its Free versions graphomate is free to issue and distribute upgrades of the Free versions gr
4. and Maintenance Agreement for the period of said License and Maintenance Agreement The support covers in detail the following services 1 Employees of the licensee shall be permitted to send questions and problems per taining to the use of graphomate products to the e mail address provided on the website graphomate shall respond by no later than the following business day 2 This support is available only for issues directly related to the use of graphomate products 3 In the event that questions and problems pertaining to the use of graphomate products cannot be resolved either via telephone or in writing graphomate shall provide support via remote connection 8 Limitation Older Versions The obligation to provide the aforementioned maintenance and support services pertains to the current version of graphomate products The obligation on the part of graphomate to provide maintenance and support for earlier versions of graphomate products shall ex ist for a period of twelve months after availability of the newer version After the twelve months period has expired graphomate has the right to refuse maintenance and support for these older versions or at the discretion of graphomate to perform the mainte nance and support services for payment of resulting additional expenses 9 Exclusions The afore mentioned maintenance and support services do not include 1 Maintenance and support services for graphomate products not operated
5. aphomate GmbH 2014 Page 4 of 6 License Conditions for the Products of graphomate GmbH 15 Trial Versions of graphomate products 1 Trial versions of graphomate products serve for assessing the range of functional ity of graphomate products and therefore are contrary to the Free version not limited in their functionality 2 They may be used by the licensee to a limited degree for test purposes and free of charge during a defined period of time They may be distributed within the com pany of the licensee but they shall not be used in a production environment A productive use of these Trial versions is not permitted 3 The Trial versions of graphomate products are granted a free of charge license for up to three months Upon expiry of that period of time it is not permitted to use the Trial version and all applications created with the Trial versions any longer unless a Full version is purchased 4 The entire risk as to the quality and performance of the Trial versions of grapho mate products is with the licensee graphomate is in no event liable for any dam ages or consequential damages arising out of the use or inability to use its Trial versions 16 Property Rights of Third Parties 1 graphomate guarantees that the graphomate products supplied in the framework of this agreement shall be free of the copyrights and patents of third parties this shall only apply if graphomate was neither aware of them nor could have becom
6. e aware of them despite reasonable effort 2 Should however a third party claim exist against the graphomate products graphomate shall release the licensee from any and all obligations under the fol lowing provisions if the licensee leaves the defense against such alleged infringe ment of copyrights or patents hereinafter referred to as the infringements of pro prietary rights to graphomate Provided that the licensee notifies graphomate in writing without delay of the assertion of such claims and provides graphomate with all information necessary to evaluate the situation graphomate shall ascer tain within a reasonable period of time whether and how an asserted claim is to be defended against or settled and shall notify the licensee thereof Until the expiry of such period the licensee shall be obligated to do everything without delay which is necessary to avoid the forfeiture of any rights this shall not include enti tlement to a defense against or a response to such claims independent of grapho mate Should graphomate decide to assume the defense against such claims the licensee shall provide graphomate with all necessary information and other appro priate support in this defense 3 In the event of infringements of proprietary rights graphomate under exclusion of further claims but subject to the provisions in Section 16 paragraph 2 and in Sec tion 14 at graphomate s own discretion and own expense is entitled to i modify
7. ense monitoring and sup port purposes Serial number of the licensee and the IP address as well as a product install ID dependent of the date of installation Additional personal data shall not be transferred 4 Weuse PIWIK an Open Source Software with own servers for statistical analy ses of the use of Trial versions of graphomate products We use the company name IP address time and place of using the Trial version run or design time and the name of the BI App Additional personal data shall not be transferred graphomate GmbH 2014 Page 5 of 6 License Conditions for the Products of graphomate GmbH The privacy protection interests of the licensee shall always be given special con sideration by graphomate and the licensee s data shall always be treated as strictly confidential The collected data will be processed and used by graphomate solely for the afore mentioned purposes Unless otherwise agreed upon the licensee and licensor are permitted to name each other as a reference contract partner and to use their logo 18 General Provisions 1 graphomate shall be entitled to authorize subcontractors to perform the mainte nance of graphomate products The dispatch or transmission of services by graphomate occurs at the expense and risk of the licensee All claims arising from this agreement can be assigned or transferred by the licen see only with the prior written consent of graphomate Place of jur
8. graphomate tl License and Maintenance Conditions graphomate GmbH ScharnhorststraBe 4 DE 24105 Kiel Hereinafter referred to as graphomate As of October 2014 1 i 2 i Object of Contract These conditions shall apply to the software together with corresponding docu mentation hereinafter referred to as graphomate products purchased from graphomate by the licensee as well as for the upkeep of said products mainte nance and support These conditions are an integral part of the License and Maintenance Agreement reached between the licensee and graphomate In the event of purchase of graphomate products via Webshop e g SAP Store the General Terms and Conditions of shop operator shall also apply The General Terms and Conditions of the licensee shall not apply Contract Period and Termination These conditions shall go into effect either upon the date agreed upon in the Li cense and Maintenance Agreement or at the time of order via the Webshop of graphomate The License and Maintenance Agreement is renewed automatically for a period of one year if not cancelled by either party in writing three months prior to expiration of the agreement graphomate may terminate the License and Maintenance Agreement at any time if the licensee violates the contractual obligations No refund of license fee shall be paid upon termination for breach of contract The licensee agrees to delete all graphomate product
9. he License and Maintenance Agree ment if the licensee is in arrears of payment by more than one month License Conditions for the Products of graphomate GmbH 4 Provisions for Use 1 2 graphomate shall remain the owner of all rights to graphomate products With payment of a licensing fee graphomate grants the licensee a non exclusive perpetual right to use graphomate products and to make as many copies as the agreed maximum number of users necessary for use of the product The licensee shall ensure that the number of persons using graphomate products at the same time does not exceed the number of licenses Upon request the licensee shall permit graphomate to make measurements of the user licenses for graphomate products used by the licensee The licensee is prohibited from editing graphomate products changing their ar rangement or making any other alterations including the correction of errors Fur thermore the licensee is not entitled to perform reverse engineering to decom pile or to translate it in any other way into source code or into any other human readable form The licensee is entitled to make backup copies of graphomate products in accord ance with normal use graphomate is entitled but not obliged to provide upgrades of graphomate prod ucts Trial versions of graphomate products shall not be used as productive versions 5 Documentation 1 Provision of documentation for the graphomate produc
10. isdiction for all disputes arising under the License and Maintenance Agreement and these conditions where legally permissible is Kiel in Germany This agreement is governed by the laws of the Federal Republic of Germany un der exclusion of the conflict rules as well as of the UN Convention on Contracts for the International Sale of Goods Additional verbal agreements have not been made Should provisions of these conditions be partly or wholly invalid then the other part of these conditions remains fully valid Rather the parties shall undertake to replace the ineffective provision with one that comes closest to the commercial in tent Amendments of these conditions require written form That also applies to the cancellation of the written form clause graphomate GmbH 2014 Page 6 of 6
11. lready known to the other contract party or known from general sources not governed by this contract The statutory obligation to observe confidentiality shall remain unaffected 4 Ifthe licensee must disclose any confidential personal data to graphomate for the provision of services which requires treatment with greater confidentiality beyond graphomate s normal scope of confidentiality and data protection measures the licensee shall inform graphomate thereof and a supplemental agreement with graphomate must be reached prior to transfer and processing of said data 11 Surrender and Transfer of Products 1 The licensee shall be entitled to transfer sell the graphomate products to third parties only with the prior written consent of graphomate 2 _ The licensee is under no circumstances entitled to rent lease or to make availa ble to third parties the graphomate products either permanently or temporarily without the written consent of graphomate Employees of the licensee shall not be deemed a third party as long as the transfer is to perform the duties of said em ployees 3 The trade with used licenses of graphomate products acquired through download is strictly prohibited graphomate GmbH 2014 Page 3 of 6 License Conditions for the Products of graphomate GmbH 12 Guarantee 1 graphomate shall guarantee for a period of 12 months from the time of delivery of the product that the function of the graphomate product
12. or replace the graphomate product to match the functionality of the original graphomate product but to no longer infringe upon the industrial property rights or copyrights of third parties or ii to acquire additional rights of use for the licen see or iii to take back the graphomate product with reimbursement of the li cense fee paid 4 graphomate is not liable for infringements of proprietary rights if they are based on editing or modification of the graphomate product which was undertaken without the prior written consent of graphomate graphomate is also not liable for infringements of proprietary rights stemming from use of the graphomate product other than that specified in the user manual or from use in conjunction with components not authorized by graphomate 17 Data Protection and References 1 graphomate saves your data if necessary for business purposes and in accord ance with the Federal Data Protection Act Bundesdatenschutzgesetz BDSG and German Telemedia Act Telemediengesetz TMG 2 graphomate edits personal data for the processing of orders and transfers said data for this purpose to services providers such as our e commerce partner cleverbridge or the operator of SAP Store amongst others 3 The licensee agrees that following the installation of the licensed graphomate products the licensee shall allow transfer of the following information one time via encrypted connection to the server of graphomate for lic
13. rror Correction of the error also shall include delivery of the modified product to the licensee and informing him of the nature and extent of modifications and the use of said modifi cations The licensee shall make available to graphomate all information required for trou bleshooting It may be necessary to provide graphomate the data model used with actual data In the event that this does not involve a reproducible error graphomate shall pro vide the licensee with the appropriate support in troubleshooting The licensee is not entitled to correct the errors himself In the event the fault cannot be traced through the documentation provided the licensee agrees to grant graphomate the remote access required to the systems in question The rights of use to a provided new version and or graphomate product which has either been modified or been extended due to error correction are governed by the Terms and Conditions agreed upon by the licensee at the original time of purchase New license rights to the provided graphomate products are purchased only to the extent of the actual improvements or modifications made to the respec tive graphomate product graphomate GmbH 2014 Page 2 of 6 License Conditions for the Products of graphomate GmbH 7 Support If agreed upon graphomate shall provide support services for questions on the part of the licensee pertaining to the use of the graphomate products specified in the License
14. s is primarily in accord ance with the description given in the user manual minor discrepancies shall be disregarded SAP BusinessObjects Design Studio and Dashboards Xcelsius are not tools for pixel perfect visualization of numerical data Therefore slight deviations in the presentation of numerical data may occur which are technically unavoidable Such inaccuracies in visualization do not constitute a defect on the part of the graphomate products In the event that the licensee has given notification of a defect this complaint must be in written form and include a precise description of the defect and its manifestation so that a review of the defect e g presentation of error messages and the exclusion of an operational error e g description of the work steps are possible In the event the fault cannot be traced using the provided documenta tion the licensee agrees to provide graphomate with the necessary access to the systems in question via remote connection If the complaint is justified graphomate shall be obligated to rectify the defect within a reasonable period of time and to improve the graphomate products If the defect is not corrected after two attempts to repairs it the licensee is entitled to withdraw from the License and Maintenance Agreement or to demand a reduc tion of the remuneration markdown and is entitled to either compensation for damages instead of specific performance or compensation for wasted expenses
15. s specified in the License and Maintenance Agreement within 10 days after termination of the contract If graphomate ceases to distribute a product then graphomate shall be entitled to terminate this Agreement notice as relates to this product in part at any time by giving three months Remuneration in this instance shall be reduced accordingly Prices and Payment Policies Unless otherwise stipulated in the License and Maintenance Agreement the li cense fees and payment conditions included in graphomate s current price list for graphomate products shall apply graphomate shall charge the amount agreed upon in the License and Mainte nance Agreement in advance at the beginning of each agreed period Licenses for graphomate products which the licensee purchases in addition dur ing the validity period of this License and Maintenance Agreement are required to be integrated into the existing License and Maintenance Agreement including the appropriate additional compensation If this has not occurred after a period of one month graphomate is authorized to cancel the License and Maintenance Agree ment without giving further notice All prices quoted by graphomate are exclusive of applicable VAT In general invoices are payable within 30 days If the licensee is in default of pay ment graphomate shall be entitled to charge default interest at the respective ap plicable statutory rate graphomate shall have the right to terminate t
16. ts delivered shall be due only when this has been agreed upon between both parties in writing in the Li cense and Maintenance Agreement Provision of documentation in the English language is permitted 6 Maintenance If agreed upon graphomate shall perform maintenance during the period of the License and Maintenance Agreement to correct errors that occur during the use of the grapho mate products specified in the License and Maintenance Agreement Maintenance shall include the following services 1 The licensee shall always receive from graphomate the new versions of the prod ucts at no additional charge A new version of a product shall exist if graphomate has released an altered or improved version of the product After licensee has informed graphomate of a reproducible error graphomate shall correct said error An appropriate timeframe shall be allocated to graphomate for correction of said error An error in terms of these conditions exists when the product does not perform a function specified in the documentation yields incor rect results despite proper use interrupts its run in an uncontrolled manner or in any other manner that either prevents or more than slightly affects the agreed use Troubleshooting shall include limitation of the error error diagnosis elimination of the error or if this is not possible with a reasonable amount of effort providing op erational readiness of the product through circumvention of the e
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