End User License Agreement
SENORICS SOFTWARE, WHICH INCLUDES “SENORICS-SENOSOFT” AND “SENORICS-SDK” AND ALSO INCLUDES ASSOCIATED MEIDA, PRINTED MATERIALS, AND ONLINE OR ELECTRONIC DOCUMENTATION (HEREINAFTER REFERRED TO AS “SOFTWARE”) COMPRISES PROPRIETARY TECHNOLOGY OF SENORICS. ANY USE OF THE SOFTWARE IS SUBJECT TO THE TERMS AND CONDITIONS CONTAINED HEREIN, A LEGAL AGREEMENT BETWEEN YOU, THE END USER (EITHER AN INDIVIDUAL OR A SINGLE ENTITY AND ALSO HEREINAFTER REFERRED TO AS “CUSTOMER”), AND SENORICS. PLEASE READ THIS LICENSE AGREEMENT CAREFULLY BEFORE USING OR INSTALLING THIS SOFTWARE. SENORICS IS WILLING TO LICENSE THE SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT AND THE LICENSE AGREEMENT UNDER WHICH YOU OBTAINED THIS SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS, DO NOT INSTALL OR USE THE SOFTWARE.
The terms used in this Agreement beginning with a capital letter shall have the meanings as defined below or as defined elsewhere in the text marked with the term put in quotation marks:
“Access” means to use or benefit from using the functionality of the Software in accordance with the Documentation; “SENORICS” means SENORICS GmbH, Germany, with its current place of business at Räcknitzhöhe 35, 01217 Dresden, Germany, a company organized under the laws of the Federal Republic of Germany; “Demonstration Software” means a version of the Software licensed by SENORICS for use in a technical environment designed to demonstrate the features of the Software but not to be used in production; “Evaluation Software” means a version of the Software licensed by SENORICS for use in a technical environment designed to conduct an evaluation of the Software and testing but not to be used in production; “SENORICS-Component” means the Integrators Kit that is an integral component of an item of the Software to be used solely by an Integrator for the purpose of creating Integrator applications for third parties redistributable solely in combination with Integrated Products; “Install” means to place a copy of the Software onto a hard disk or other storage medium through any means (including but not limited to use of an installation utility application accompanying the Software) for the purpose of permitting Access to the Software; “Integrator” means user of the Software for developing and distributing Integrated Products; “Integrated Product” means Software combined with hardware devices and/or Software of SENORICS or of a third party, forming a resulting combined system that can perform functions that its independent components could not perform separately; “Internal Computer Network” shall mean your proprietary computer network resource accessible only by employees and/or contractors of your specific corporate enterprise or similar organization (“Authorized Users“) and solely controlled by you; “Internal Computer Network” specifically excludes the Internet (as such term is commonly defined) or any other network community that is open to the public, including without limitation membership or subscription driven groups, associations or similar organizations; connection by secure links such as VPN or dial up to your Internal Computer Network for the purpose of allowing Authorized Users to Access the Software is considered use over an Internal Computer Network; “Permitted Number” means one (1) unless otherwise indicated under a valid license granted by SENORICS; “Sample Code” means software source code or executable code, in either way labeled as “sample code“; “Software” means (a) all of the contents of the files, disk(s), CD-ROM(s) or other media with which this Agreement is provided, the items of the any software supplied to you, including but not limited to (i) SENORICS or third party computer information or software (including Evaluation Software and Demonstration Software); (ii) digital images, stock photographs, clip art, sounds or other artistic works (“Stock Files“); (iii) an Application Programming Interface “API“; (iv) SQL database schemes and guidance how to modify database schemes, and (v) related explanatory written materials or files (“Documentation“); and b) fixes, modified versions, updates, additions, and copies of the Software, if any, licensed to you by SENORICS (collectively, “Updates“).
2. Software License.
2.1 General. Provided you have acquired a valid license from SENORICS and as long as you comply with the terms of this End User License Agreement (the “Agreement“), SENORICS grants you a license to use the Software as provided in this Section 2 and, in addition and depending on which type of Software license you have acquired, Section 3 (Full Use License), Section 4 (Evaluation Software) or Section 5 (Demonstration Software).
2.2 Backup Copy. You may make one (1) additional copy of each validly licensed copy of the Software in machine readable form for backup purposes only, provided that you include any and all SENORICS copyright notices or other designations that appear or may appear in or on the Software, without alteration or removal of any such copyright or other notice on the original copy of the Software (“Backup-Copy”). You may Install and Access Backup Copies of Software only in the event that your primary copy has failed. With respect to each copy of Software, you may Install such Backup Copy on any of your computer(s) solely for backup purposes in the event of computer failures. You may Access the backup copy of Software for production purposes only in the event that your primary copy has failed or is under maintenance and is not in production use. At no time may the total number of the computer(s) on which you Access both the primary copy and Backup Copy of Software for production purposes or exceed the Permitted Number. Except as otherwise described in this Section 2.1, all terms and conditions of this Agreement shall apply to your Installation and Access of any Backup Copy of the Software. You may not transfer the rights to a Backup Copy unless you transfer all rights in the Software as provided in the Transfer Section 7 of this Agreement.
2.3 Use in Compliance with the Law. As between you and SENORICS, you assume all risk and are solely responsible for any and all liability resulting from Access to the Software in a way that violates (or that produces content that violates) any law or the rights of others including, without limitation, laws concerning copyright infringement.
2.4 You acknowledge that the Software licensed hereunder contains third party components that are licensed pursuant to its own terms and conditions (“Embedded Software“). A copy of the licenses associated with such Embedded Software can also be obtained on written request from SENORICS.
3. Full Use License.
3.1 General. This Section 3 applies if you have obtained a valid license to an item of the Software other than as Evaluation Software or Demonstration Software.
3.2 Software Installation. SENORICS grants to you a non-exclusive license to Install the Software on one or more Computer(s) on your Internal Computer Network to the extent and for the purposes described in the specification of your license to SENORICS Software, provided that: (a) only the licensed functionality as set forth in the license agreement to SENORICS Software is used or facilitated; and (b) none of the licensed parameters limiting the licensed functionality (like maximum number of enrollees, number of cameras, number of seats) do not exceed the Permitted Number. Except as expressly permitted herein, you may not Install all or any portion of SENORICS Software onto any Computer if doing so would cause you to exceed the Permitted Number of licensed parameters.
3.3 Internal Computer Network Use. You may permit Authorized Users to Access SENORICS Software through your Internal Computer Network and use the Software as defined in your license agreement. In addition, but only so far as your license agreement allows, you may configure SENORICS Software so as to automate (such as through the use of scripts and/or batch processing) software features (such as image resizing) provided that such automated process is initiated by Authorized Users from within your Internal Computer Network. You may Access SENORICS Software to deliver content to any Computer connected to your Internal Computer Network so far as the license agreement allows.
3.4 Other Network Use. Except as otherwise provided in this Section 3.4 you may not (a) permit Access to SENORICS Software by any users other than Authorized Users; or (b) Access SENORICS Software (or permit others to do so) to deliver content either directly or through commands, data or instructions from or to a Computer not part of your Internal Computer Network unless this is allowed by your license agreement.
3.4.1 Authorized Users. Authorized Users may Access SENORICS Software (either directly or through an automated process) to deliver content to a Computer that is outside your Internal Computer Network so far as the license agreement allows.
3.4.2 Other Users. So far as your license agreement allows you may provide Access to SENORICS software or to specific features of SENORICS Software to users outside your Internal Computer Network for the sole purpose of initiating a process (including an automated process) that results in SENORICS Software delivering content (including content that has been modified based on user-specified preferences or information in accordance with this Agreement) to a Computer outside your Internal Computer Network.
3.5 Integrated Products: This subsection 3.5 only applies if you have obtained a valid license to Software as part of a device (e.g. camera, data-terminal) that delivers content to a computer or an Internal Computer Network. You are granted the nonexclusive right to use one (1) copy of this Software with each computer or Internal Computer Network connected to the device with which the Software was acquired.
3.6 Integrator’s Use Rights. As Integrator you may use the Software only on the basis of a valid SENORICS Integrator license, install the SENORICS Components on one or more computer(s) that are part of your Internal Computer Network, Access the API Information subject to Section 3.7 below, and use and modify the Sample Code and merge all or any portion of the Sample Code into your own code solely for the purpose of facilitating your Access to the Software to build applications that work in conjunction with the Software in accordance with the SENORICS license agreement and with this Agreement. You may reproduce and redistribute any such Sample Code along with any modification (that means enhancements to the functionality of the Sample Code) you make thereto and the other files that may be listed and identified in the Documentation expressly as “redistributable files” provided that you agree: (a) to distribute such code only in object code form; (b) to merge the redistributable code into your own code only in combination with the Integrated Products; (c) to redistribute such code to third parties only on the basis of purchased end-user-licenses according to the SENORICS license agreement between you and SENORICS; (d) include SENORICS’S copyright notices on your programs that include portions of Sample Code or the other redistributable code , except for those programs in which you include a copyright notice reflecting your own copyright ownership in such programs; (e) to indemnify, hold harmless and defend SENORICS and its affiliates from and against any claims or lawsuits, including attorney’s fees, that arise or result from the use or distribution of the Integrated Products; and (f) to otherwise comply with the terms of this Agreement.
3.7 Confidentiality. You agree that you will treat any received proprietary information received from SENORICS including but not limited to API Information, know-how, ideas, concepts with the same degree of care to prevent unauthorized disclosure to anyone other than Authorized Users as you accord to your own confidential information, but in no event less than reasonable care. Your obligations under this Section with respect to such information shall terminate when you can document that such information was in the public domain at or subsequent to the time it was communicated to you by SENORICS through no fault of yours. You may also disclose such information in response to a valid order by a court or other governmental body, when otherwise required by law, or when necessary to establish the rights of either party under this Agreement, provided you give SENORICS advance written notice thereof.
4. Evaluation Software.
4.1 This Section 4 applies if you have obtained a valid license to Evaluation Software. SENORICS grants to you a non-exclusive license to Install the Software on one or more Computer(s) on your Internal Computer Network to the extent and for the purposes described in the specification of your license to SENORICS Software Evaluation Agreement. Your license to the Evaluation Software is limited to use strictly for your own internal evaluation purposes and not for production purposes, and is further limited to a period of not more than sixty (60) days from the date you acquire the Evaluation Software unless otherwise agreed in writing. You may Install the Evaluation Software on a total number of Computers not to exceed the Permitted Number and permit Authorized Users to Access the Evaluation Software through your Internal Computer Network to deliver content within your Internal Computer Network. No other network use is permitted for Evaluation Software.
4.2 To the extent that any provision in this Section is in conflict with any other term or condition in this Agreement, this Section shall supersede such other term(s) and condition(s) with respect to the Evaluation Software, but only to the extent necessary to resolve the conflict.
5. Demonstration Software.
5.1 This Section 5 applies if you have obtained a valid license to Demonstration Software. In addition to the other terms contained herein, your license to the Demonstration Software is limited to use in your technical environment strictly for demonstration purposes for customers and not for production purposes. You may Install the Demonstration Software on a total number of Computers not to exceed the Permitted Number and permit Authorized Users to Access the Software through your Internal Computer Network to deliver content within your Internal Computer Network. No other network use is permitted for Demonstration Software. If the item of the Software you have received with this license is Demonstration Software, then your rights under this Agreement will terminate immediately upon the earlier of (a) the expiration of agreed demonstration period, or (b) the expiration of your appointment as distributor.
5.2 SENORICS reserves the right to terminate your license to Demonstration Software at any time in its sole discretion. You agree to return or destroy your copy of the Demonstration Software upon termination of this Agreement for any reason. To the extent that any provision in this Section is in conflict with any other term or condition in this Agreement, this Section shall supersede such other term(s) and condition(s) with respect to the Demonstration Software, but only to the extent necessary to resolve the conflict.
6. Intellectual Property Rights.
6.1 The Software and any copies that you are authorized by SENORICS to make are the intellectual property of and are owned by SENORICS GmbH and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of SENORICS GmbH and its suppliers.
6.2 The Software is protected by copyright, including without limitation by German Copyright Law, U.S. Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. You may not copy the Software, except as set forth in Section 2, (Software License) and 3 (SENORICS Software limited as described under Section 3) or in any other written agreement with SENORICS. Any copies that you are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on or in the Software. Except as expressly stated herein, you agree not to modify, adapt or translate the Software. You also agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software except to the extent you may be expressly permitted to decompile under applicable law, it is essential to do so in order to achieve operability of the Software with another software program, and you have first requested SENORICS to provide the information necessary to achieve such operability and SENORICS has not made such information available. SENORICS has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any information supplied by SENORICS or obtained by you, as permitted hereunder, may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software. Requests for information should be directed to the SENORICS Customer Support Department. Trademarks shall be used in accordance with accepted trademark practice, including identification of trademarks owners’ names.
6.3 Trademarks can only be used to identify printed output produced by the Software and such use of any trademark does not give you any rights of ownership in that trademark.
6.4 Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by SENORICS.
You may not rent, lease, sell, sublicense, un-bundle and/or repackage for distribution or resale, or authorize all or any portion of the Software to be copied onto another user’s Computer or Installed or Accessed on another user’s Computer except as may be expressly permitted herein or in a valid license agreement. You may not transfer or assign this Agreement or any license to use the Software without the prior written consent of SENORICS, which shall not be unreasonably withheld. The parties agree that SENORICS is hereby entitled to assign and/or transfer all or part of its rights and obligations under this Agreement to any third party. Notwithstanding the foregoing, any successor, representative or assignee which shall succeed by purchase, merger, or consolidation to the properties, substantially in your entirety as a legal entity shall be entitled to the rights and shall be subject to the obligations of its predecessor in interest under this Agreement, provided that such entity executes a prior acknowledgement confirming such entity’s acceptance and agreement to be bound by and comply with the terms of this Agreement and SENORICS receives such written acknowledgement prior to the transfer. Notwithstanding anything to the contrary in this Agreement you may not transfer SENORICS- Evaluation Software and Demonstration Software.
8. Disclaimer of Warranty.
8.1 SENORICS warrants that the Software, that has been purchased from SENORICS providing a Full-Use-License will perform substantially in accordance with the Documentation for a period of twelve (12) months following receipt of the Software. A non-substantial variation of performance from the Documentation does not establish a warranty right. To make a warranty claim, you must return the Software, at our expense, to the location where you obtained it along with proof of purchase within such twelve (12) month period. If the Software does not perform substantially in accordance with the Documentation, SENORICS is entitled to repair or replace the Software according to its choice. If this fails, you are entitled to a reduction of the purchase price (reduction), or a recession of the purchase agreement (recession).
8.2 IN NO EVENT WILL SENORICS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A SENORICS’ REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY WITH REGARD TO THE EVALUATION SOFTWARE AND THE DEMONSTRATION SOFTWARE.
9. Limitation of Liability.
9.1 Notwithstanding anything to contrary in this Agreement: SENORICS shall be liable without restriction for i) damage caused intentionally or through gross negligence, ii) for claims according to the German or other European Product Liability Act and iii) in the case of violating life, body or health. In the event of simple negligence, the following applies: By excluding further liability SENORICS shall only be liable insofar as it has breached an essential contractual obligation (cardinal contractual obligation). This liability shall be restricted to the contractually typical and foreseeable damage in the case of material and pecuniary damages. These aforementioned limitations apply irrespective of their legal basis, in particular with regard to any pre-contractual or auxiliary contractual claims. The limitations shall not apply, however, to any damage which is caused due to the breach of an express warranty to the extent that such express warranty was intended to protect the user against the specific damage incurred.
9.2 Should the use of all or any portion of the Software be enjoined, or in the event SENORICS wishes to minimize its potential liability under this Agreement (including without limitation to any of its third-party licensors), SENORICS may at its sole and exclusive discretion, either: (a) substitute functionally equivalent, non-infringing versions of the Software or any part thereof; (b) modify the infringing item so that it no longer infringes but remains reasonably functionally equivalent; (c) obtain for customer, at SENORICS’ expense, the right to continue use of such item; or (d) SENORICS may take back such infringing item or items, terminate this license in whole or in part.
Customer will indemnify, defend and hold harmless SENORICS, its directors, officers, employees and representatives, from and against any and all losses, damages, liability, costs and expenses finally awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs, arising out of any third party claim arising out of a customer’s breach of any term of this Agreement or if the alleged claim arises, in whole or in part, from: (a) any modification, servicing or addition made to the Software or any part thereof by the customer; (b) any use of the Software by customer in a manner outside the scope of any right granted or in breach of this Agreement; (c) the use of such Software or any part thereof as a part or combination with any materials, devices, parts, software or processes not provided by or approved by SENORICS; (d) SENORICS’ compliance with customer’s requirements or specifications, if any; or (e) the use of other than the then-current, unaltered release of the Software or any part thereof available from SENORICS.
11. Export Rules.
In general, this Software might be subject to national or trans-national export restriction regulations, including but not limited to export restriction regulations for goods that can be used for permitted purposes and for prohibited purposes (i.e. dual use goods). You agree that the Software will not be shipped, transferred or exported into any country to be used or used in any manner or for purposes prohibited by the German and European Export Trade Restrictions and the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws“). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Myanmar, Zimbabwe, and North Korea) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to Install, Access and use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
12. Governing Law and Place of Jurisdiction.
This Agreement, each transaction entered into hereunder, and all matters arising from or related to this Agreement (including its validity and interpretation), will be governed and enforced by the substantive laws in force int he Federal Republic of Germany. The competent courts at SENORICS’S registered seat shall have exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
13. Notice to U.S. Government End Users.
To the extent any licenses granted herein are deemed to constitute the acquisition of software on behalf of any agency or unit of the United States Government, it is agreed and understood (i) that the Software is classified as “Commercial Computer Software” and the Government is acquiring only “restricted rights” in the software product, as defined in clause 48 C.F.R. 227-7205-5(c); or (ii) the Government’s rights in the Software shall be as defined in clause 48 C.F.R. 52.227-19 of the FAR.
14. Third-Party Beneficiary.
You acknowledge and agree that SENORICS’S licensors are third party beneficiaries of this Agreement, with the right to enforce the obligations set forth herein with respect to the respective technology of such licensors and/or SENORICS.
15.1 If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. Updates may be licensed to you by SENORICS with additional or different terms. In case of a conflict between this Agreement and your valid license the valid license agreement shall prevail.
15.2 Force Majeure. Neither party will be responsible for delay or failure in performance resulting from acts beyond the control of such party. Such acts will include, but not be limited to: an act of God; an act of war; an act of terrorism; riot; an epidemic; fire; flood or other disaster; an act of government; a strike or lockout; a communication line failure; power failure or failure of the computer equipment on non-SENORICS developed software.
If you have any questions regarding this Agreement or if you wish to request any information from SENORICS please use the address and contact information included with this Software to contact SENORICS.
Copyright © 2020 SENORICS GmbH. All rights reserved.
MD-07.00 / SF 01.04.2021