End user license agreement between KM.ON GmbH, Carl-Benz-Straße 21, D-60386 Frankfurt am Main, Germany (hereafter: Licensor) and you as the Licensee (either a natural person or legal entity)
The Licensee is interested in using the k.innovation CREATE PLUS software for the creation of knitting programs in his own company.
For this reason, the Licensor and Licensee agree to the following Licensing Agreement for the Use of the k.innovation CREATE PLUS Software.
§ 1 Licensed Object and Scope of Use
(1) The Licensor shall mean KM.ON GmbH, Carl-Benz-Straße 21, D-60386 Frankfurt am Main, Germany.
The Licensee shall mean the customer
Licensed Software shall mean the installation instructions, description of the program and smart card.
(2) The Licensor shall grant the Licensee a non-exclusive, non-transferable right, which shall also exclude sub-licensing, to use the k.innovation CREATE PLUS software with the following conditions. The Licensor shall make the Licensed Software in electronic form available to the Licensee. The licensed material shall furthermore include installation instructions in electronic form, a description of the program and a smart card. The licensed program, the installation instructions, the description of the program and the hardware protection will hereafter be designated as the Licensed Software. The parties are in agreement that the Licensed Software shall enjoy copyright protection and a corresponding indicator of copyright status shall appear on the screen when the Licensed Software will be started. Any use exceeding the provisions of this contract or disposal shall be excluded.
Compensation depending on use (cp § 3) shall be made for the use of the software.
(3) The Licensed Software shall only be capable of operating in connection with the smart card supplied by KM.ON.
(4) Any circumvention of the smart card shall be prohibited.
(5) The Licensee shall have the right to use the Licensed Software simultaneously on one computer. This use shall only be permissible in combination with a valid smart card and with a previous acquired usage credit. The processing of any data received by the program, in whole or in part, permanently or temporarily, shall be considered as use. The allowed use shall include the installation and storage of the software on in the computer’s RAM, execution of the program and processing of the databases. The Licensor does not grant any rights of use or disposal beyond such.
The Licensee shall not be authorized to use the Licensed Software or parts thereof beyond the scope of this licensing contract or make such accessible to third parties. In particular, any transfer, sale, rental, accessibility or other form of distribution of the Licensed Software shall be forbidden to the Licensee.
The smart card may not be copied by the Licensee nor modified in any manner.
(6) Licensed material transferred in either printed or electronic form, in particular the program description, may only be reproduced with the prior written agreement of the Licensor.
(7) All rights to any reproductions of the Licensed Software made by the Licensee or third parties shall remain with the Licensor.
(8) The Licensee shall not be permitted to change or supplement the Licensed Software.
(9) The Licensee shall be authorized neither to use the Licensed Software, in whole or in part, on more than one data processing device at the same time nor to distribute reproduced units of the Licensed Software in its original version or in modified or process editions.
(10) The smart card shall permanently remain the property of the Licensor. The data stored on the smart card may be updated automatically and modified when using the smart card. The Licensor shall furthermore retain the right to exchange the smart card used by the Licensee for another smart card or other form of hardware protection, in particular for the purpose of updating or protecting the Licensed Software and recalling the smart card in use against return of the protection fee for this purpose. The Licensor shall also retain the right to permanently exclude smart cards used contrary to this contract or smart cards that have served as templates for the creation of copies.
§ 2 Term of Use
(1) The grant of the rights of use designated in § 1 shall be for the period determined by the usage credits and begins with the transfer of the software and the licensed materials to the Licensee.
§ 3 Protective Fee and License Compensation for Usage Period
(1) A protective fee must be paid for the smart card, which will be returned upon return of the smart card. The protective fee will be paid once per smart card serial number. The protective fee shall not be returned if the smart card is lost. The protective fee is part of the starter kit.
(2) The Licensee must pay a fee for the specific period of use of the k.innovation CREATE PLUS software. For this purpose, the period of use will be stored on the smart card. If this period of use is expired, the licensed software can only be used by purchase of a following period of use (prepaid system). If an unused period of use remains on the smart card at its return, such will not be paid-back.
(3) The Licensor shall not make compensation for the unused usage credits stored on the smart card if the card is lost. The same shall apply for smart cards that have been blocked due to misuse.
(4) All compensation and the protective fee shall represent the net price. All legally acquired fees such as: taxes, customs, import fees and all other fees; must be paid by the Licensee. Deductions or accumulations by the Licensor will not be returned. If state fees must be paid by the Licensor in the country where the Licensee will be using the Licensed Software with regard to the compensation or protective fee, the Licensee shall be obligated to pay such for the Licensor and transfer proof of payment to the Licensor within 60 days.
§ 4 Security of the Licensed Software
(1) The Licensee must ensure that the Licensed Software will not be abused in their company and the obligation in accordance with §1 will also be observed by their employees and co-workers as well other persons working with the package.
(2) Software labeling, in particular the copyright notices, brands, serial numbers or similar, may not be removed, modified or made unrecognizable. The Licensee shall only be authorized to the use of programs or program components from other manufacturers contained somewhat in the Licensed Software or the programs associated therewith if they have accepted the valid license conditions for such.
§ 5 Updates and New Releases
(1) The Licensor shall be prepared to deliver supplements (updates) or new versions (new releases) of the Licensed Software as soon as such shall become available. The Licensee can determine the availability of said updates and new releases on the Licensor’s web page. If the Licensee orders an update or new release, the provisions of this contract shall apply for the software transferred therein.
§ 6 Liability for Defects
(1) The contractual parties are in agreement that, at the modern level of technology, programs cannot be developed such that they will run free of errors in all application conditions. The Licenser shall provide the Licensee with an up-to-date program description for the Licensed Software that specifies the proper use and the operating conditions of the programs. Guarantees will not be accepted by the Licensor.
(2) The Licensor shall ensure that the Licensed Software is usable in the spirit of the valid description of the program provided to the Licensee at the time of delivery. Insignificant reductions in the usability shall remain unconsidered. They shall further more ensure that the data media in use will be free from material and manufacturing defects and that the data on them has been recorded properly. To the extent that the Licensee will be operating the Licensed Software in connection with hardware or software products that did not originate from the Licensor or are not included in the specifications published by the Licensor for the hardware, the Licensee shall be obligated to bear the burden of proof that any error found is being caused by the Licensed Software.
(3) If the Licensed Software proves to be unusable or defective in the spirit of paragraph (2), a replacement delivery against the return of the defective software shall be guaranteed. Should the software delivered as replacement prove to be unusable or defective and the Licensor does not succeed in manufacturing the usability or correcting the error within an appropriate term, the Licensee may withdraw from the contract. The Licensor shall return the protective fee against the return of the software.
(4) Deeper liability for defect or performance of guarantee, in particular for the data or Licensed Software corresponding to the requirements and purposes of the Licensee shall be excluded. Claims of damages on the part of the licensee due to defects in the licensed software shall be excluded to the extent not contradicting to § 7.
(5) The expiration of the term for the claims of damages by the Licensee shall amount to twelve months starting with the delivery of the Licensed Software to the Licensee or its download by the Licensee.
§ 7 Liability limitations
(1) To the extent not contradicting to this license contract, claims for damages and claims for the compensation of expenditures of any type on the part of the Licensee shall be excluded regardless of the legal bases (hereafter Claims for Compensation of Damages in toto). For this reason, the Licensor shall not be liable in particular for lack of economic success, lost revenues, direct damages and consequential damages and for damages arising from the claims of third parties.
(2) The exclusion of liability in accordance with paragraph (1) shall not apply for damages from the endangerment of life, limb or health, which touch upon breach of obligation for which the Licensor should be responsible at the culpable level at least or for obligations of the Licensor at the negligent level, or his legal representatives or vicarious agents. The liability shall be limited to the typically damages foreseeable upon conclusion of the contract as well as double the usage fee taken from the Licensee.
(3) To the extent that other software products regardless of type will be operated on the data processing device on which the Licensed Software has been installed, the Licensee shall ensure that the device shall be equipped with the updated version of a standard virus protection program. The Licensor shall be prepared to make the installation of such a virus protection program possible at the request of the Licensee to the extent that changes to the Licensed Software will be required for such. In the event of a virus attack, the Licensee shall be obligated to bear the burden of proof that the Licensed Software was infected with the virus.
(4) To the extent that the liability of the Licensor has been excluded or limited such shall also apply for the personal liability of their employees, co-workers, representatives and vicarious agents.
§ 8 Final Provisions
(1) Agreements, modifications and supplements to this license contract including this clause requiring the written shall require the written form to be legally effective.
(2) If individual provisions of this license contract are, or become, ineffective, the contract should remain valid for the remainder. The parties shall be obligated in such cases to collaborate in the creation which will target the replacement of the ineffective provision with a legally effective result coming as close as possible to the economic intent.
(3) This license contract between the Licensor and the Licensee shall be subject to German law. The location of fulfillment of business transactions with business people shall be Frankfurt am Main, Germany.
(4) All disputes that result from or in connection with this contract or regarding its validity shall be ultimately decided according to the rules of arbitration of the Deutschen Institution für Schiedsgerichtsbarkeit e.V. (DIS, German institution of arbitration) under the exclusion of the proper legal path. The location of the arbitration procedures shall be Stuttgart, Germany. The number of judges shall be three unless the parties amicably agree to one person who should make decisions as sole arbitrator.