Purchase of the Software Licence
The terms and conditions set out hereinafter are the sole content of the AtomicusChart® software licence, which becomes the subject matter of the licence purchase.
By using purchased software, the licensee agrees to be bound by the following terms and conditions. If the purchaser does not agree, the software and all associated downloadable materials must be deleted and cannot permissibly be used for any purpose.
§ 1 Definitions
(1) “Licensor” means
An der RaumFabrik 33c
76227 Karlsruhe, Germany
(2) “Purchaser" and "licensee” mean the purchaser who buys the AtomicusChart® software licence and accepts the licence agreement on the basis of the present terms and conditions.
(3) “The software” means the AtomicusChart® software component module according to the respective specifications of the purchased software package (packages currently available: Academic, Basic, Advanced, Ultimate, Ultimate + Code, Customized), including any later software upgrades.
(4) “Upgrade” means an upgrade, update, enhancement, improvement, or patch to the software supplied by the licensor on the basis of the present terms and conditions.
(5) “End user” means the third party that purchases a licensee´s software product in which AtomicusChart® software is embedded/implemented.
(6) “Developer” means an individual who compiles, debugs, and develops against code that references AtomicusChart® DLLs and AtomicusChart® Projects within Microsoft Visual Studio. For example, any person who compiles and runs a project in Visual Studio or a similar IDE that references AtomicusChart® libraries is considered to be a developer.
(7) “Documentation” means any documentation concerning the software supplied with the software by the licensor.
(8) “Force majeure event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, and wars).
(9) “Licensee application(s)” means a software application(s) for end users developed by the licensee.
§ 2 Subject of Purchase
(1) The subject of the following terms and conditions is to set the scope of the software licence purchased by the licensee, including respective documentation and respective support packages.
(2) The software and accompanying documentation will be handed over via a download.
(3) Each licence is per one individual developer. However, licenced software must be operated on only one of the developer's machines at a time, though it may be installed on several computers owned by the developer. The licensee needs to purchase further licences according to the growing number of developers. The licensor will also provide site licenses, which entitle the licensee to reproduce AtomicusChart® for unlimited developers at a single physical site.
§ 3 Grant of Licence
(1) The licensor grants to the purchaser a timely and territorial unrestricted, unexclusive, nontransferable licence to use AtomicusChart® software for the sole and only purpose of integrating the AtomicusChart® software into an application that the licensee has developed. The licence is granted solely for the software object code (dll) and only where agreed also for source code.
(2) In order to integrate AtomicusChart® into a licensee application, the purchaser is permitted to use AtomicusChart® as a component in developing such licensee applications on the back end of intranet sites and public websites. The purchaser may also publish or redistribute AtomicusChart® in compiled “dll” form only to end users and only as a complete licensee application in which AtomicusChart® has been embedded.
(3) The licensee is not permitted to develop (i. e., by altering, translating, editing, or adapting in any way) AtomicusChart® software or/and distribute an application that is substantially similar to AtomicusChart®. Wrapping the AtomicusChart® library in a wrapper for distribution (i. e., to multiple developers/departments) will be deemed a substantially similar product. Such a product cannot be used permissibly for sale within the organization of the licensee or in any other context. Further, the licensee is not permitted to decompile or disassemble AtomicusChart® by any means.
(4) Sublicensing of AtomicusChart® is excluded, but the end user may use a licensee´s application in which AtomicusChart® has been embedded as set out in § 3 (1). A distribution of the licensee´s application to an end user who is a developer and will debug and develop against the licensee´s code is also excluded from sublicensing permission. Apart from that, the licensee must not sell, give away, lend, or lease the software or the rights granted to it to third parties.
(5) The purchaser is not permitted to change the names of AtomicusChart® projects within Microsoft Visual Studio or to copy respectively to reproduce source code or documentation in parts or in whole other than in accordance with the aforesaid.
(6) The purchaser is not entitled to remove or circumvent the existing safeguards of the software against unauthorized use. Copyright notices, serial numbers, and other features used for software identification must not be removed or altered.
(7) AtomicusChart® may include certain third-party components, such as SharpDX licensed under the MIT licence found at https://github.com/sharpdx/SharpDX/blob/master/License.txt. AtomicusChart® may also include AvalonEdit in Demo under the MIT licence available at https://github.com/icsharpcode/AvalonEdit. The licensor will provide a list of included third-party components and respective licences only upon request.
§ 4 Upgrades and Support
(1) The licensee shall apply to the software each upgrade released and made available by the licensor during the term of the respective update subscription purchased by the licensee. All licence packages comprise update subscription in accordance with the respective upgrade plan (for different packages, see § 1), ranging from one to five years of support and update subscription.
During the term of subscription, updates and support will be made available for the licensee via their personal account on atomicuschart.com.
(2) During the term of update subscription, the licensee will be entitled to receive and use the latest version(s) of AtomicusChart® that match the licensee´s product keys. The licensor is not obliged to provide support for AtomicusChart® with regards to any version that does not incorporate the most recent upgrade of the software.
(4) Technical support is provided by the licensor or its subcontractors unless otherwise agreed (see the respective current package description) for a minimum of one year for the purpose of resolving issues with AtomicusChart® raised by the reasonably-acting licensee. For trial versions and other royalty-free versions, support is excluded.
(5) The licensor does not guarantee that issues raised via support will be solved by means of the support services. The licensor will not provide any on-site support. No support will be provided by the licensor with regards to bugs originating from video adapter drivers.
§ 5 Remuneration
(1) On the basis of the present licence conditions of the AtomicusChart® licence, accompanying documentation and a support package are provided in the long term to the purchaser. The price for the purchase is set out in the respective package description presented prior to entering the download stage of the purchase procedure. Grant of a licence is conditional upon payment of the full purchase price.
(2) The licensor reserves ownership and all inherent rights to the downloaded software and accompanying materials until receipt of all payments from the purchase contract.
§ 6 Instruction of Factual User
The licensee may permit any person of its staff and employees to exercise the rights granted by the licensor under § 3. The licensee shall ensure that any such use of the software and/or documentation is compliant with the present terms and conditions.
§ 7 Proof of Compliance
(1) Upon the licensor´s occasional request, the licensee shall provide in text form reasonable and comprehensible evidence of their compliance with the present licence condition. The required statement shall be set out in English and in text form; it shall involve but not be limited to the number of purchased licences and the number of developers using AtomicusChart®.
(2) The request must be made with a notice period of at least 10 business days according to the calendar of the country in which the licensee resides. The licensor will endeavour to minimize the impact on the licensee´s business.
§ 8 Limited Warranties
(1) AtomicusChart® is a nonindividualised software.
(2) Technical data specifications and performance specifications set out in public statements, in particular in advertising materials, are not statements of quality. The contractual relevant functionality of the software is based on the description in the user documentation, which can be found on the AtomicusChart® website and in the present terms and conditions. AtomicusChart® software shall perform substantially in accordance with the accompanying reference manuals and underlying description of the purchased software package for a period of one year, given that the operating system of the computer on which AtomicusChart® has been installed incorporates all recent updates. It is the licensee´s obligation to ensure the latest update version of the operating system. Defects deriving from outdated versions of the operating system will not be considered a defect of the product.
(3) Trial and beta versions are excluded from any warranty.
(4) It is the sole obligation of the licensee to make sure to operate AtomicusChart® on an appropriate computer system. The performance of AtomicusChart®, especially the size of visualised data, crucially depends on the GPU (graphics processing unit) and cannot be ensured on outdated computers or computers with very poor video adapters. Any low performance of AtomicusChart® due to low performance of the GPU will not be considered a defect of the product.
(5) In the case of a defect, the licensee´s sole and exclusive remedy shall be, at the licensor´s discretion, either repair or replacement of the software, unless set out otherwise in the present terms and conditions. Warranty duties are excluded when a defect of AtomicusChart® results from abuse, misapplication, or using the software in a manner that it's not created for according to accompanying reference manuals and the underlying description of the software. In the case of a replacement, the remainder of the warranty period is unaffected and will not restart.
(6) The licensor warrants that the software has been tested for computer viruses and other malicious third-party software infections in accordance with standard industry practice.
(7) The licensor makes an Academic software package and trial versions of AtomicusChart® software (prerelease) available. As far as the Academic or trial versions become the subject matter of the present software license agreement, the licensee acknowledges that use is granted royalty-free, but also that irrespective of § 8 (1), such versions are not necessarily free of malfunctions and use is therefore at the licensee´s sole risk in terms of technical reliability and warranty issues toward the end user. The licensor does not warrant any satisfactory quality, fitness for a particular purpose, or noninfringement of third-party rights. Trial and beta versions are made available only for testing purposes.
(8) AtomicusChart® software may not be free of minor errors, but a nonmaterial error in the software will not be deemed a breach of the present licence conditions in terms of the quality owed.
§ 9 Liability
(1) The licensor is liable for intent and gross negligence. For normal negligence, the licensor is liable only in the case of a breach of a material contractual obligation (cardinal obligation), whose fulfilment is required in order to execute the contract properly in the first place, as well as in the case of damage from injury to life, physical integrity, or health.
(2) The licensor owes the usual industry care. When determining whether the licensor is at fault, it should be noted that software cannot be created technically faultless.
(3) Liability shall be limited in sum to the amount of the foreseeable damage that typically must be expected; however, this maximum liability is limited to the single amount of the licence fee the purchaser has paid for the purchased software package.
(4) The licensor is in no event liable for the loss of data and/or programs insofar as the damage is due to the fact that the licensee has failed to carry out data backups and thereby ensure that lost data can be restored. The licensor shall not be held liable for any indirect, incidental, or consequential damages, such as — without limitation — loss of revenue, business disruption, or comparable pecuniary loss arising out of the use of or inability to use AtomicusChart®.
(5) Under no circumstances shall either party be held liable for failure to perform its obligations under this agreement if such failure is due to a Force Majeure event as defined in § 1. The party affected by Force Majeure shall inform the other party of the occurrence of the Force Majeure event within fifteen (15) days by written notice. Except as defined below, the parties shall have no right to assert Force Majeure in order to terminate this agreement.
If Force Majeure continues for a period of more than three (3) months from the date of the Force Majeure declaration and has affected either of the parties from performing its obligations in whole or in part during that period, then either party shall be entitled to terminate the Licence Agreement by written notice to the other party.
The parties shall have no right to claim for any compensation of liquidated damages to the other party for delays or nonperformance of the agreement in the case of Force Majeure, even if the Force Majeure results in the termination of the present licence agreement.
§ 10 Use of the AtomicusChart® Trademark
The licensor does not grant any licence right with regards to the licensor´s trademarks protected under any law in advance. The licensee will need explicit written consent from the licensor prior to any use of the licensor´s trademarks. The licensee may contact the licensor and request permission.
§ 11 Export Control
For informational purposes, the licensor provides the following information without any claim to accuracy, notwithstanding that it is the sole responsibility of the licensee to meet applicable requirements of the relevant jurisdiction regulating export in case the licensee should intend to ship, transfer, or
export AtomicusChart® software and/or the licensee application and its accompanying reference manuals into any country.
In terms of U.S. software export regulation, AtomicusChart® software does not enter into any restricted categories (there is no Export Control Classification Number). NLR is the designator of a transaction that stands for the "No License Required" authorization. U.S.-based licensees of the software distributing the licensee application should therefore use the acronym “NLR” to re-export the software if the licensee application does not embed any other restricted technology. International embargo rules that might apply to all products shall apply to re-export of the software and export of licensee applications.
§ 12 Termination
(1) The licensor may terminate the present contract for extraordinary reasons if the licensee or its staff or employees breach the present licence agreement.
(2) If the licensee does not pay its contractual fees as they fall due, the licensor shall have the right to terminate the licence agreement, provided that there is no statutory law being opposed.
§ 13 Final Provisions
(1) Should a provision of this contract be or become invalid (in whole or in part), this shall not affect the validity of the remaining provisions. In this case, the invalid provision will be replaced by an effective provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to any unintended gaps in the agreement.
(2) The licensor may assign rights and duties under this licence agreement without the licensee´s consent. Further assignment of claims that are not monetary claims is not permitted without the prior written consent of the other contracting party.
(4) A right of retention can only be asserted for counterclaims arising from the respective contractual relationship.
(5) The parties may only set off against claims that have been legally established or are undisputed.
(6) Changes and additions to this contract must be in writing. This formal requirement can be waived only by written agreement.
(7) The law of Germany applies to the present agreement, excluding the law collision.
(8) Unless otherwise legally stipulated, the exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be at the place of the registered office of the licensor. However, the licensor is also entitled to sue at the general place of jurisdiction of the licensee.