EULA - End-User License Agreement of AtroCore GmbH

Version: 2024-02-07

1. Preamble

1.1. The Scope of this Agreement (hereinafter: Agreement) applies to all proprietary standard software (hereinafter: the Software) provided by AtroCore GmbH to the Licensee in return for payment.

1.2. This Agreement governs the relationship between Licensee, which is a legal entity (hereinafter: Licensee) and AtroCore GmbH (hereinafter: Licensor).

1.3. This Agreement sets the terms, rights, restrictions and obligations on using the Software created and owned by Licensor.

1.4. Licensor delivers the Software as source code.

1.5. if you do not agree to the terms and conditions of this Agreement, you should not download, install, use the Software or pay for it.

2. License Grant

2.1. The Software can be purchased or rented. Licensor hereby grants Licensee a License to use the Software as follows.

2.2. Purpose – Licensee may use the Software for the purpose of:

Running the Software on Licensee’s or Licensor's Server
Allowing 3rd Parties to run Software on Licensee’s Server
Publishing Software’s output to Licensee and 3rd Parties
Modifying the source code of the Software to suit Licensee’s needs and specifications, by himself or 3rd Parties
Making one back-up copy of the Software for archival purposes.

2.3. Licensee may not – sell, redistribute, assign, encumber, give, lend, rent, lease, sublicense, publish, distribute or otherwise transfer the Software, or any portions of the Software, to another individual or entity, as a part of a larger work or solely.

2.4. Non-Assignable & Non-Transferable – Licensee may not assign or transfer his rights and duties under this License.

2.5. Commercial, Royalty Free: Licensee may use the Software without any royalties for own commercial purposes. Licensee may run one instance of the Software on the Testing, Stage and Production environment respectively, as long as all these environments are used for one project and/or one application.

2.6. No Right to Create Derivative Works: Licensee may not create derivative works based on the Software.

2.7. The Software can be used only in one project or company in development, test, staging and production environment.

3. Term & Termination

3.1. This License is perpetual.

3.2. Licensor may terminate this Agreement and Licensee's right and license to use the Software, if Licensee fails to comply with the terms and conditions of this Agreement.

3.3. Both parties have the right to cancel the contract for an important reason.

3.4. In case of rent the Agreement has a minimum contract term of three months. The cancellation period is one month to the end of the quarter. Termination by notifying Licensor must be submitted in writing. Upon the termination of this Agreement, Licensee must discontinue use of Software, and delete all copies of the Software.

4. Fee and Payment

4.1. In consideration of the License granted under clause 2, Licensee shall pay Licensor a license fee. Failure to perform payment shall construe as material breach of this Agreement.

4.2. The license fee is stated in the invoice and is excluding VAT. After the first payment this Agreement is deemed as concluded.

4.3. In case of rent the License fees are calculated monthly and are payable quarterly in advance.

4.4. In case of purchase the License fee should be paid in full and the Licensor reserves the ownership of the Software delivered to the Licensee until full payment of all existing or future claims arising from this contractual relationship at the time of delivery.

4.5. In case of rent the Licensee may yearly adjust the License fee.

5. Support

5.1. Together with the paid Software the Licensee receives a free support for it for a period of 12 months in case of purchase, and continuously in case of rent.

5.2. The Provider offers the following support services: help with the installation issues, configuration issues and application of the Software, support for reproducibly unexpected behavior of the Software (defects and problems), answering questions related to the functionality of he Software.

5.3. Support is provided via e-mail. No hotline support is provided. No guaranteed response times are provided.

5.4. In case the purchased Software is an extension or module for another Software of the Licensor, which is not properly installed or configured (e.g. updates from administration area are not possible), free support is not provided and success is not guaranteed.

5.5. To receive hotline support and predefined service levels the Licensee may sign with the Licensor the Software Maintenance and Support Agreement (SMSA).

5.6. Installation and configuration services are not part of free support and will be charged additionally.

6. Additional Services

6.1. All services provided by the Licensor that are not considered as part of support, but are directly related to the Software, such as: trainings, consulting, custom programming, implementation of proposed solutions, on-site support, and support beyond the scope of the support package or the prescribed hourly quota are referred to as additional services.

6.2. The General Terms and Conditions (GTC) of the Licensor apply to these services.

7. Defect Claims

7.1. Immediate Examination – the Licensee will examine the delivered software including documentation within 10 business days of delivery, especially with regard to the functionality of basic program features. Defects found or identifiable must be notified to Licensor in writing within 10 working days.

7.1.1. If no defects are reported in writing during the 10 working days after delivery, it is stated that:

Licensee has inspected the Software thoroughly and found it satisfactory and adequate to his needs,
it does not interfere with his regular operation,
it meets the standards and scope of his computer systems and architecture,
Licensee has found that the Software does not infringe any of End User License Agreement of any software Licensee may use in performing his services.

7.1.2. Upon expiration of this period, Licensee hereby waives any claims for incompatibility, performance, results and features of the Software.

7.2. Defects that cannot be identified within the scope of the proper examination described above must be notified within 10 working days of discovery, in compliance with the requirements of the claim.

7.3. Defects shall be proven by means of a comprehensible description of the error symptoms, as far as possible, by written or electronic records, video recordings, screenshots or other illustrative documents in writing or electronically in a form prescribed by TL. The notice or description of defect made by client shall allow the reproduction of the defect.

7.4. Defects of the supplied software are remedied by the Licensor in accordance with the statutory provisions. This is done by the option of the Licensor to improve or redeliver the Software. The Licensor is entitled to at least two attempts of improvement.

7.5. If the Licensor has found out after notification of a defect that there is no defect, all costs incurred shall be borne in full by the Licensee. The cost calculation is based on the usual hourly rate of the Licensor.

7.6. Defects resulting from the use of third-party programming, which conflicts with existing programming or integration with third-party software must be fully resolved at the expense of the Licensee.

7.7. The warranty period is 12 months from delivery of the Software.

7.8. Otherwise, the Software is provided to Licensee "AS IS" and without any further warranties. Licensor makes no warranty as to its use or performance. To the maximum extent permitted by applicable law, Licensor, and its affiliates, suppliers and resellers, disclaim all other warranties and conditions, either expressed or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, with regard to software, and the provision of or failure to provide support services.

7.9 Defect claims can be raised only if the Software was not modified by the Licensee.

8. Updates

8.1. In case of rent hotfixes, patches, updates, and upgrades (Updates) are provided continuously.

8.2. In case of purchase Updates are provided for free only during the first 12 months after purchase.

8.3. Starting from the 2nd year updates for additional 12 months can be purchased for 25% of the current purchase price, provided that there is an uninterrupted purchase of the updates in the previous periods.

9. Limited Liability

9.1. To the maximum extent permitted by applicable law, in no event will Licensor or its affiliates, licensors, suppliers or resellers be liable to Licensee under any theory for any damages suffered by Licensee or any user of the Software, or for any special, incidental, indirect, consequential, or similar damages, including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever, arising out of the use or inability to use software, or the provision of or failure to provide support services, even if Licensor has been advised of the possibility of such damages, and regardless of the legal or equitable theory upon which the claim is based.

9.2. The limitation of liability does not apply as soon as the Licensor has caused the damage intentionally or through gross negligence.

9.3. In any case, Licensor's entire liability under any provision of this Agreement will be limited to the amount actually paid by Licensee for software under this Agreement.

9.4. The Licensee is responsible for the fact that a data backup is operated in a suitable form and a timely and economically sound recovery of lost data is ensured.

10. Rights of Third Parties

10.1. The software delivered by the Licensor is free from the rights of third parties, which are contrary to a contractual use. If the deficiencies persist, the Licensor shall be entitled to remedy the infringement of the rights of third parties by means of legal measures, or to alter or replace the services in such a way that third-party rights are no longer infringed, provided that the functionality of the services is impaired.

11. No Refunds

11.1. Accordingly, as the Software is intangible good, Licensee shall not be ever entitled to any refund, rebate, compensation or restitution for any reason whatsoever, even if the Software contains material flaws.

12. Software Evaluation

12.1. Licensee may obtain from Licensor a free copy of the Software to evaluate it for a period of thirty (30) days, unless otherwise specified by Licensor ("Evaluation Period").

12.2. Licensee's use of Software during Evaluation Period shall be subject to the terms of this Agreement but shall be limited to the internal Software evaluation for the sole purpose of determining whether Software meets Licensee's requirements and whether Licensee desires to use the Software.

12.3. For the Evaluation Period the Software is always provided in executable form as object code, source code is not provided.

12.4. Upon expiration of Evaluation Period, Licensee may not use the Software and shall uninstall it.

13. Indemnification

13.1. Licensee hereby warrants to hold Licensor harmless and indemnify Licensor for any lawsuit brought against it in regard to Licensee’s use of the Software in means that violate, breach or otherwise circumvent this license, Licensor's intellectual property rights or Licensor's title in the Software.

13.2. Licensee hereby agrees not to initiate and not to participate in lawsuits against Licensor in relation to this License and to compensate Licensor for any legal fees, cost or attorney fees should any claim brought by Licensee against Licensor be denied, in part or in full.

14. Final Clauses

14.1. Licensor reserves the right at any time to cease the support of the Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.

14.2. Licensee agrees to be identified as a customer of Licensor and agrees that Licensor may refer to Licensee by name, trade name or trademark, if applicable, and may briefly describe Licensee's business in Licensor's marketing materials and on Licensor's web site.

14.3. This Agreement, including the Third-Party Agreements, constitutes the entire agreement between the parties concerning Licensee's use of the Software, and supersedes any and all prior or contemporaneous oral or written communications or advertising with respect to the Software, unless otherwise is signed by Licensee and Licensor.

14.4. This Agreement will be governed by the laws of Germany, without reference to conflict of law principles. Licensee agrees that any litigation relating to this Agreement may only be brought in and shall be subject to the jurisdiction of any Court of Germany.

14.5. If any provision of this Agreement is held invalid, the remainder of this Agreement will continue in full force and effect.

14.6. In case the terms of this Agreement are in conflict with the terms of any agreement individually negotiated and agreed between Licensee and Licensor, the terms of the latter shall prevail.

14.7. The Licensee is responsible for keeping a valid copy of this agreement.