Information about Paessler AG
Registration Court: Amtsgericht Nuremberg,
Registernummer HRB 23757
VAT-ID: DE 217564187
Paessler AG operates a website under the domain of https://www.paessler.com for commercial purposes. Downloaded software is offered via the Internet.
E-Mail: [email protected]
T: +49 911 93775-0
F: +49 911 93775-409
General Terms and Conditions
GENERAL TERMS AND CONDITIONS OF PAESSLER AG
Sec. 1. Contractual bases
(1) The Parties are Paessler AG (registered on the Commercial Register of the Nürnberg Local Court at HRB 23757, hereinafter "We") and the Customer. No rights or obligations are imposed on or granted to third parties by this Agreement. These General Terms and Conditions shall also apply to successors-at-law of the respective Party.
(2) Our General Terms and Conditions are intended for incorporation into contracts entered into for purposes of selling our services to our Customers. They shall not apply to contracts made by us for the procurement of services.
(3) Our offers and services are addressed exclusively to entrepreneurs and legal entities under public law or special funds under public administrative law. An entrepreneur is a natural person or legal entity or partnership with legal personality acting in the exercise of its commercial or professional occupational activities in entering into a transaction; a partnership with legal personality is a partnership in which the power is vested to acquire rights and incur liabilities.
(4) Contract terms of the Customer departing or deviating from our General Terms and Conditions or Special Terms and Conditions shall not be deemed incorporated into or to constitute the substance of this Agreement, whether by silence or by references in letters of the Customer to such contract terms, or by our acceptance of an offer from the Customer without reservation or by our performance of services without reservation. Individual contracts departing herefrom shall have priority.
(5) The Parties are in agreement that our General Terms and Conditions shall also apply to further contracts for the acquisition of licenses for our software and to contracts for the maintenance of our software.
(6) Our Special Terms and Conditions (e.g. in respect of software licensing and software maintenance) shall, in the case of any conflicts or discrepancies, take precedence over our General Terms and Conditions. Individual agreements made shall take precedence over the General Terms and Conditions.
(7) If We should provide a translation of the contract texts to the Customer in a language other than German, such translation is provided only for information purposes, and shall not constitute an integral element of the contract; in cases of discrepancies between the German and the foreign-language version, the German version shall control exclusively.
Sec. 2. Formation of contract
(1) Our offers to conclude a contract are subject to change and non-binding, except where our offer expressly otherwise provides.
(2) Where We make an offer to our Customer to enter into contracts with us by electronic transaction via our website, then in addition to (1), the following shall apply:
1. Offers on our website merely constitute a non-binding request to the Customer to submit offers to conclude a contract.
2. Where the Customer clicks on the button labelled "Buy now" or on a button with a comparable text (e.g. "Place a binding order"), the Customer is deemed to submit a binding offer to conclude the contract. The Customer shall be bound by its order until the expiry of a seven calendar day period from the date of placing its order.
3. We shall provide reasonable, effective and accessible technical means to the Customer by which the Customer may ascertain and correct data entry errors prior to final placement of its order. Prior to placing its order, the Customer will be able to review and amend the order details.
4. After placing the order, the Customer shall receive an e-mail from us containing an automated confirmation of receipt reflecting the substance of the Customer's order. This confirmation of receipt does not constitute our binding acceptance of the Customer's order, but rather merely furnishes documentation of the fact that the Customer's order was received by us, except where the e-mail expressly declares our acceptance of the Customer's order in addition to providing confirmation of receipt.
5. Contracts shall only be deemed formed at such time as the Customer receives our confirmation of acceptance. We shall confirm acceptance by a communication forwarded by e-mail, by forwarding a license key or by forwarding an invoice to the Customer. We shall be entitled to accept the Customer's order up to the end of seven calendar days from the date the Customer placed the order. Silence on our part in response to the Customer's order shall not constitute acceptance.
Sec. 3. Special right of rescission in respect of software licensing
(1) Where We enter into a contract for licensing of software with the Customer, We are deemed to grant the Customer a right to rescind the contract, subject to the following provisos:
1. The right of rescission is vested exclusively in the end-Customer. In particular, sales partners such as distributors or re-sellers are not entitled to exercise it.
2. The right of rescission shall cease upon the expiry of a 30 calendar day period from the date the contract for the licensing of the software was formed.
3. Rescission is effected by a declaration made to us. In order to be valid, such declaration must be in written form. The declaration is not required to contain any grounds of justification.
4. Upon exercise of rescission, We shall refund the compensation paid by the Customer to it within 30 calendar days (depending on the tax position, this may in certain cases be after deduction of any taxes previously remitted by us), and shall do so concurrently at the same time as the Customer's de-installation and deletion of the software and return of the license to us.
5. Neither of the Parties shall be obliged to disgorge or provide compensation in respect of use which takes place prior to rescission.
(2) The provisions set forth above neither exclude nor limit the Customer’s statutory rescission rights.
Sec. 4. Our services
(1) We bear an obligation to perform the services agreed. The scope of our services shall be determined by the specification of services in effect as of the time of our offer (in particular: the user documentation http://www.paessler.com/support/manuals) and, by way of supplementation, shall also be determined by the Special Terms and Conditions applicable in each case, e.g. terms and conditions on licensing or maintenance of our software.
(2) Descriptions of services do not constitute any warranties or representations regarding the qualities of our services.
(3) We will enable Customers to inform themselves regarding the qualities of our software prior to contracting. The Customer shall bear responsibility for ascertaining whether our software meets its requirements and expectations.
(4) We are entitled to partially perform services except where this is unreasonable to the Customer.
(5) In addition, We shall be entitled to make use of third parties to perform our services.
(6) Deadlines for performance shall be deemed extended by periods during which We are prevented by circumstances for which We bear no fault from performing the service, as well as by a reasonable start-up period after the obstacle to our performance has ceased. The same shall apply in respect of the period in which the Customer fails to perform acts of cooperation.
Sec. 5. Software licensing
(1) We shall provide our software to the Customer for its use within the agreed scope of use, in exchange for the agreed compensation, and this shall not be subject to any limitation in time or geographical scope and shall be governed by the law of sales, except where the Parties have otherwise agreed.
(2) As a part of our software, We shall provide the user documentation to our software to the Customer; such documentation is provided exclusively in electronic form in English, in a format of our choosing.
(3) Delivery of the software shall be effected by providing the software for Internet download and forwarding to the Customer the link with which to download it ("Download Link") as well as the licensce key.
(4) We shall provide our software to the Customer exclusively in executable form (object code). We do not bear any obligation to supply source code to the Customer.
(5) Our software is subject to legal protections. In line with the contract with the Customer and with the Special Terms and Conditions on Software Licensing, We grant the Customer a non-exclusive right to use the software, within the scope agreed in our contract; this right is unlimited as to its term or geographical scope.
Sec. 6. Compensation and terms of payment
(1) The Customer is obliged to pay the agreed compensation.
(2) All prices are quoted net of the applicable statutory VAT in each case, if any. The Customer shall be responsible for any customs duties and similar charges when services are supplied abroad.
(3) We do not assume the costs of any funds transaction by which the Customer performs its obligation to pay the compensation.
(4) Deduction of a cash discount is only permitted on the basis of a separate agreement, which is only valid if made in written form. Any individual agreements departing herefrom shall take precedence.
(5) The Customer is permitted to exercise a right of set-off against our claim for payment of the compensation, without any contractual limitations, and in accordance with the provisions of applicable law, in respect of claims for payment arising out of the contract based on our failure to perform our supply obligation or due to defects of the goods or services. The Customer may only exercise a right of set-off in respect of claims other than those listed in the first sentence hereof where such claims are undisputed or have been legally adjudicated or are ripe for decision in connection with litigation.
(6) The Customer shall only be entitled to exercise a right of retention to the extent that its counter-claim is based on the same contractual relationship.
Sec. 7. Customer's duties of cooperation
(1) Our performance of services in line with the contract, and, in particular, in a timely manner, shall be subject to the condition precedent that the Customer has previously gratuitously performed its duties of cooperation in line with the Parties' contract and, in particular, has done so in a timely manner. Where the Customer fails to perform its duties of cooperation, or fails to perform them in line with the Parties' contract, our duty to perform services shall cease to the extent that, and for the period that, performance of such services is premised on the Customer's prior performance of its duties of cooperation. Our claim for compensation shall remain unaffected thereby. The Customer shall bear the disadvantages and additional costs arising out of a breach of duties and obligations and, where such costs are the result of its failure to perform its duties of cooperation.
(2) It shall be the Customer's responsibility, at its own cost and expense, to procure the necessary system prerequisites for operating our software, and in particular, to keep the hardware, third-party software and Internet connections required for this purpose available.
(3) It shall be the Customer's responsibility to assert written claims to us in respect of deficiencies and defects of our services, in a verifiable and detailed form, indicating the information which is expedient to enable us to ascertain defects, and in particular, indicating the steps in the working process that led to the occurrence of the defect, its impacts and the way in which the defect manifested itself.
(4) It shall be the Customer's responsibility to download new program versions of software after We have been informed of and have eliminated any deficiency, and to install the same, except where this is neither possible for the Customer nor reasonable to do it.
(5) Where We do not undertake to assume responsibility for storing data for the Customer (e.g. to store archive data for the Customer), it shall be the Customer's responsibility to itself secure its data in line with the state-of-the-art, and to do so prior to installing our software for the first time and prior to installing new program versions of our software, wherever there are indications that a fault may be present, which could, upon an informed assessment, be due to a cause lying within our software, and at intervals which are appropriate to the application such that the Customer is able to restore the data with reasonable efforts.
(6) It shall be the Customer's responsibility to secure the installation files and associated license keys required for new installation.
Sec. 8. Customer's rights in the case of software defect
(1) The Customer is entitled to assert rights for defects of the software in line with what is provided by law, except where the Parties have otherwise agreed.
(2) In the event of any substantive defect or fault of the software, We shall be obliged and entitled, at our option (which We shall exercise within a reasonable time) initially to remediate (e.g. eliminate the fault), or to supply a replacement (e.g. furnish a new program version which is free of defects). Elimination of the defect may also consist of our demonstration to the Customer of the reasonable options in line with the contract for avoiding the impacts of the fault.
(3) In the event of any defect in title of the software, We shall be entitled and obliged at our option (which We shall exercise within a reasonable time) to initially effect subsequent performance by procuring a legally valid option for using the software or by using replacement software or modified software of equal value. The Customer shall accept the new program version if the scope of functionalities as required by the Parties' contract is preserved and where it is reasonable to require the Customer to accept this.
(4) Where subsequent performance has failed or where the reasonable time set by the Customer for subsequent performance has elapsed to no avail, or where such time may be dispensed with pursuant to applicable law, the Customer may, in line with the rules of applicable law, resile from the contract or abate the compensation to a reasonable extent. However, where the defect is non-material, the Customer shall have no right of rescission.
(5) Our liability to pay compensation for damages and losses and frustrated expenditure shall be limited in line with secs. 10 and 11.
(6) Where, following notification of a substantive defect by the Customer, We perform work or services to search for or eliminate the fault without being obliged to do so, the Customer shall be liable to compensate us for any damages or expenditures arising from our works and services to search for or eliminate the defect, except where the Customer has not breached any obligations in reporting the defect or is not responsible for its breach.
Sec. 9. Third-party intellectual property rights
The Customer shall notify us promptly in writing where third parties assert intellectual property rights (e.g. copyright or patent rights) in the software. The Customer shall support us to a reasonable extent in defending against any such claims.
Sec. 10. Liability
(1) Our liability shall be governed by the provisions of applicable law, without any contractual limitations as follows
a) for intentional acts;
b) for losses based on the fact that We fraudulently conceal a defect of the software or have assumed a warranty for the qualities or features of the software;
c) for losses arising out of injury to life, limb or health, based on an intentional or negligent breach by us or otherwise on an intentional or negligent act of one of our legal representatives or vicarious agents;
d) for losses based on intentional or grossly negligent breach by us or otherwise on intentional or grossly negligent acts of one of our legal representatives or vicarious agents;
e) under the Product Liability Act.
(2) In all cases other than those defined in sub-para. 1, our liability shall be limited to compensation for losses which are typical to the contract and foreseeable, where the loss was based on a negligent breach of material duties by us or by one of our legal representatives or vicarious agents. Material duties are duties, the performance of which are sine qua non to proper performance of the contract and as to which the Customer regularly relies and is entitled to rely on their being complied with.
(3) In cases other than those defined in sub-paras. 1 and 2, We hereby disclaim our liability for negligence.
(4) The defence of contributory negligence shall remain unaffected hereby.
(5) The provisions set forth above in respect of our liability for damages shall apply to all contractual and extra-contractual claims for damages against us, irrespective of the legal bases thereof, and mutatis mutandis to our liability for compensation of frustrated expenditures.
Sec. 11. Prescription of Customer's claims for defects of software
(1) The following shall be deemed prescribed in line with the provisions of applicable law, without any contractual limitation:
a) claims of the Customer against us in the case of a liability for intentional acts or omissions;
b) claims of the Customer against us for defects of the software where We have fraudulently concealed the defect or where We have assumed a warranty for the features or qualities of the software;
c) claims of the Customer against us for defects of the software where the defect consists of an in rem right of a third party, on the basis of which disgorgement of the software may be demanded;
d) claims of the Customer for compensation of losses
aa) arising out of injury to life, limb or health, based on an intentional or negligent breach by us or otherwise on an intentional or negligent action by one of our legal representatives or vicarious agents;
bb) based on an intentional or grossly negligent breach by us or otherwise on an intentional or grossly negligent act of one of our legal representatives or vicarious agents;
cc) under the Product Liability Act.
(2) In cases other than those listed in sub-para. 1, the prescription period for claims of the Customer for substantive defects of the software shall be one year from the date the software was delivered.
Sec. 12. Data protection and data security
(1) We collect, process and use personal data in line with the provisions of applicable law and contractual rules. Our employees who are engaged to process data bear an obligation of data secrecy.
(2) Where We collect, process or use personal data for the Customer on the basis of a contractual obligation, or, to the extent that We undertake testing or maintenance of automated processes or data processing systems at the direction of the Customer and it is not possible in this context to rule out access to personal data, We shall not be obliged to perform our services until such time as the Customer has furnished the requisite legal prerequisites to us, e.g. has concluded an agreement on contract data processing with us which satisfies local law.
Sec. 13. Export controls
(1) All of our products are subject to export control regulations. The Customer hereby undertakes that it shall comply with the export control regulations applicable to its country. These laws include limitations regarding the destination of goods and services, the end-users thereof, and the end use thereof.
(2) The Customer furthermore acknowledges that in all cases it is prohibited from exporting, re-exporting, selling/or passing on or disclosing the software in all of the countries listed under the Internet address given below, and that even activation of the software is, in all cases, prohibited in such countries: https://www.paessler.com/company/terms/export-control.
(3) If the Customer knows or has suspicions that impermissible exporting of the services by a third party might be taking place as set forth in the provisions shown above, the Customer is prohibited from disclosing or passing on the products to any such third party. In addition, subject to our prior consent in individual cases, the Customer is prohibited from disclosing or passing on anything to persons or institutions as to whom the Customer knows or has reason to suspect that such parties may be involved in designing, developing or producing nuclear technology or nuclear, biological or chemical weapons.
Sec. 14. General provisions
(1) This contract shall be governed by the law of the Federal Republic of Germany, but excluding application of the United Nations CISG.
(2) Jurisdiction and venue for all disputes arising out of or in connection with this Agreement between us and any Customer who is a legal merchant, legal entity under public law or special fund under public administrative law shall be vested in the courts at our place of registration. Mandatory legal rules regarding exclusive jurisdiction and venue, including sec. 689 (2) of the Civil Procedure Code ([German acronym:] ZPO) shall remain unaffected hereby.
(3) No amendments or addenda to our Agreement with the Customer shall be valid unless made in written form. The foregoing also applies to any rescission of the 1st sentence hereof. Individual agreements departing herefrom shall take precedence.
(4) To the extent We have agreed with the Customer to written form for declarations (including under sub-para. 3), or so agree in future, the written form requirement will also be deemed met where the communication is provided by facsimile, e-mail or, at the time of contracting, an exchange of declarations satisfying the written form requirements. Sec. 127 (2) and (3) German Civil Code [German acronym: BGB] shall, however, have no application in any further and other respects.
(5) Where, prior to or at the time of contracting, the Customer furnishes an e-mail address for forwarding our contract declarations, further declarations by us of legal relevance made to that e-mail address shall likewise be deemed to have been received by a person who is authorised to accept service on behalf of the Customer.
(6) Where terms of the Agreement have not become incorporated into the Parties' contract, whether in whole or in part, or where they have become invalid, this shall not affect the validity of the remaining provisions of this Agreement. To the extent that the terms have not become incorporated into the Parties' contract or are not invalid, the substance of the Parties' contract shall be governed in line with the statutory rules.
Mandatory information for Customers in respect of contracts entered into electronically (pursuant to sec. 312i (1) (2) BGB, in conjunction with Art. 246c of the Introductory Law to the German Civil Code [German acronym:] EGBGB)
1.The individual technical steps giving rise to formation of contract are described in Sec. 2.
2.The Customer's order data, including the contract terms and conditions, shall be stored by us for purposes of performing the contract with the Customer. The Customer may archive the order data by storing the web page which is shown to the Customer at the time that its order is complete, and by storing our e-mail confirming receipt of its order.
3.The means by which the Customer may ascertain and correct data entry errors prior to providing its registration declaration is described in Sec. 2 (2) (3).
4.The order process for contracting is carried out in German or in English or in Spanish or in French. The contract terms and conditions themselves are provided in German, and an English translation thereof is likewise provided.
5.We have not undertaken to comply with any codes of conduct.
SPECIAL TERMS AND CONDITIONS OF PAESSLER AG ON LICENSING STANDARD SOFTWARE
Sec. 1. Scope
(1) The following terms and conditions provide specific rules on the scope of the Customer's right to use the software.
(2) Where not otherwise provided in the Terms of License set forth below, our General Terms and Conditions shall apply supplementally. Our Terms of License shall, in addition, also apply where, in individual cases, We offer our software to persons other than entrepreneurs (sec. 14 of the German Civil Code ([German acronym:] BGB)), legal entities under public law or special funds under public administrative law.
(3) We shall forward our Terms of License and our General Terms and Conditions by e-mail or facsimile to Customers upon request, or make the most recent version thereof available on our website for downloading by the Customer.
Sec. 2. Definitions
The following terms shall have the following meanings in our Terms of License:
1. User: User working with the software.
2. System: Physical computers, virtual systems et al. devices such as security cameras, routers etc.
3. Core Server: The central monitoring entity for a PRTG installation, providing storage and processing of monitoring data, dispatch of notifications, User administration, webserver etc.
4. Failover Node: A Core Server which is able to assume monitoring functions in a cluster where the Master Node cannot be reached.
5. Master or Master Node: A Core Server which permanently takes on the Master role in a Cluster.
6. Cluster: Combination of one Master Node and one or more Failover Nodes, which is created to increase the responsiveness of the System.
7. Remote Probes: Distant probes which collect monitoring data and supply them to the Core Server.
Sec. 3. Rights to the software; licenses
(1) Our software, including the User documentation, is subject to legal protections, and, specifically, copyright protection.
(2) The Customer may only use the software to the extent permitted by the contract and, unless otherwise agreed by contract, to the extent permitted by applicable law.
(3) We grant Customers only non-exclusive rights of use. Such rights of use are unlimited in their geographical scope. In the case of the "Commercial Edition" license type, the rights of use are unlimited in their temporal scope, in the case of the "Freeware", "Trial Edition" and "Special Edition" license types, they are subject to temporal limitations.
(4) The Customer is authorized
1. to install the software on the computer/computers for which it is destined,
2. to load the software into the RAM of the computer and its display and processing,
3. to create the requisite number of back-up copies of the software and to create back-ups of the data storage medium/media on which the software is installed (image).
It shall be the Customer's responsibility to secure the installation files and associated license keys required for new installation.
(5) A back-up copy on a moveable data storage medium must be labelled as such and must bear an appropriate copyright notice.
(6) The Customer may only make changes to the software within the meaning of sec. 69c (2) of the German Copyright Act ([German acronym:] UrhG) if this is permitted by law. We would point out that even minor changes may give rise to substantial, unforeseeable disruptions in the running of the software and in other computer programs and may result in incorrect results from data processing. The Customer is prohibited from modifying or removing copyright or license notices in the software or on any data storage media which We may provide to the Customer. The Customer is in no case granted any right of use to process, translate or modify the software going beyond the Customer's statutory rights.
(7) The Customer is only authorised to decompile the software within the meaning of sec. 69e of the Copyright Act (UrhG) to the extent permitted by law. Prior to any decompilation of the software, the Customer must make a written demand on us upon reasonable notice to provide the information and documentation required in order to create interoperability. Only after this period has expired to no avail will the Customer be entitled to decompile the software, within the limits specified in sec. 69e UrhG. Prior to engaging third parties (e.g. under 69e (1) (1) (2) (2) UrhG), the Customer shall furnish us with written confirmation by the third party that such third party undertakes directly vis-à-vis us that it shall comply with the Terms and Conditions.
(8) The Customer shall only be entitled to disseminate (which shall include rental) or to publicly display the software whether on a wired or wireless basis, including providing public access in such manner as makes it accessible to members of the public from any location and at any time they may select, to the extent this has been expressly agreed or is permitted by law.
Sec. 4. License types
(1) We distinguish amongst the following license types:
1. "Commercial Edition" (sec. 5)
2. "Freeware", "Trial Edition" and "Special Edition" (sec. 6)
(2) Contracts on the basis of which We have allowed the Customer to use software of another license type in the past shall remain unaffected. The foregoing applies, in particular, to contracts for the "Site License", "Corporate Country License" and "Corporate 'n' Core Global License" license types. To such extent, the Terms of License governing licensing of those license types shall apply. We shall forward these Terms of License to the Customer upon request by e-mail or facsimile. We are entitled, but are not obliged, to provide the respective Terms of License to Customers, in the applicable version thereof, for downloading from our website.
Sec. 5. Commercial Edition
(1) If We contract with the Customer for licensing of the software of the "Commercial Edition" license type, We make a distinction between individual work station licenses and multiple work station licenses ("XL ‚n'/Unlimited License").
(2) Individual work station licenses permit installation only on a single System. For Cluster functionality, sec. 7 (1) shall apply supplementally.
(3) In cases of provision of the software as a " XL ‚n'/Unlimited License", We will make an agreement with the Customer as to how many computers (n) it is allowed to install the software on globally, so that the software may be used by one or more Users at one or more locations. For Cluster functionality, sec. 7 (2) shall apply supplementally.
(4) Remote Probes may be installed on as many computers as the User wishes globally, both in the case of individual work station licenses and in the case of multiple work station licenses.
(5) Where the Customer exceeds the agreed scope of use, it must notify us promptly thereof; our further legal rights are deemed neither to be limited nor precluded thereby.
(6) The Customer is only authorised to provide the software to third parties subject to the legal prerequisites. Prior to providing the software to any third party, the Customer must notify us of its provision of the software to a third party, and the date and the recipient thereof, and must completely delete the installations in its possession.
Sec. 6. Freeware, Trial Edition & Special Edition
(1) Where We make an agreement with the Customer to license software belonging to the Freeware, Trial Edition and Special Edition license types, then, in derogation from our General Terms and Conditions, we are deemed to provide the software on a gratuitous basis to the Customer.
(2) Unless otherwise agreed, the law of gratuitous donation shall apply to any contract for the provision of software pursuant to one of the license types referred to in paragraph 1 hereof. Secs. 3, 5 (1), 6 and 10 (1) to (3) shall not apply.
(3) In cases of provision of the software to the Customer pursuant to the Freeware license type, the Customer's authorization to use the software is limited to use of the software for a maximum of 100 sensors except where the Parties have expressly agreed otherwise.
(4) In cases of the provision of software to the Customer pursuant to the Trial Edition license type, the Parties agree that the User's authorization to use the software shall be limited to a 30 calendar day period from the date the contract is made, after which period the software may be used on a maximum of 100 sensors, except where the Parties have expressly otherwise agreed.
(5) In cases of provision of the software to the Customer pursuant to the Special Edition license type, the scope of the User's authorization to use the software will be specified in each individual case.
(6) In cases of provision of the software to the Customer pursuant to one of the license types referred to in paragraph 1 hereof, the following shall apply supplementally:
1. The Customer may install and use the software on as many of its computers as desired.
2. The Customer may only provide the software to third parties (e.g. including on a website or an FTP server for remote access including downloading)
a) if the Customer provides the software without having modified it,
b) if the Customer provides the software to the third party in question on a gratuitous basis and
c) if the Customer takes care to ensure that the third party in question undertakes vis-à-vis us that it shall comply with the Terms of License.
The Customer may only provide the software to third parties in exchange for compensation with our prior express consent, which shall require compliance with the written form requirement within the meaning of sec. 14 (4) of our General Terms and Conditions in order to be valid.
(7) In cases in which the software is provided to the Customer pursuant to one of the license types referred to in paragraph 1, We shall not offer any contract for maintenance of the software to the Customer. If, in individual cases, We nevertheless perform maintenance services, the foregoing is done without any acknowledgment of a legal duty to do so. The Customer's statutory claims in the event of defects of the software remain unaffected thereby.
Sec. 7. Cluster functionality
(1) The Customer may, in addition to primary installation as an accompanying "Failover Node", install software We have provided to the Customer pursuant to the "Commercial Edition" license type on the basis of a "single workstation license" on one further System. In order to install a three-fold or four-fold Cluster, the Customer must purchase a further license key, and for installation of a five-fold Cluster, the Customer must purchase a third license key. The software may not be deployed beyond a five-fold Cluster.
(2) In line with the Parties' contract, the Customer may install software We have provided to the Customer pursuant to the "Commercial Edition" license type on the basis of a multiple workstation license ("XL ‚n'/Unlimited License") both as multiple individual workstation installations and one or more Cluster installations. In addition, the Customer may install the software as a "Failover Node" which is linked with one of those installations on not more than one System beyond the contractual scope of the license. The Customer must in each case acquire one additional individual workstation license for each two additional Cluster Nodes outside the contractual scope of the license in question.
Sec. 8. PRTG Cloud
(1) Where We make an agreement with the Customer that, as an additional service for PRTG installations, it is permitted to make use of our "PRTG Cloud" service, the following terms and conditions shall apply.
(2) We provide these services on a gratuitous basis.
(3) On the PRTG Cloud, We offer hosted services. These services offer notifications (e.g. via push technology) as well as monitoring. As soon as these functions are used either in the App or in the PRTG interface, the PRTG Core Server will link to the PRTG Cloud without any further query. In the case of the notification service, We store these data and pass them on to other service providers to transmit them to end-devices (e.g. to Google, Apple or Microsoft for forwarding of push notifications). In the case of monitoring (e.g. Ping, http), We store the host and Internet addresses monitored (URLs).
(4) The Customer is responsible for concluding a contract with a third-party service provider where necessary in order to be permitted to use its services and to procure the prerequisites to utilization of the PRTG Cloud in conformity with data protection law requirements, and for maintaining the same in force until the contract comes to an end.
(5) The Customer is obliged to comply with Amazon's Acceptable Use Policy (AUP), which may be viewed at http://aws.amazon.com/de/aup/. Without limitation in respect of the AUP terms and conditions, the cloud infrastructure may be used, in particular, only for notifications to the Customer's own devices and for monitoring the Customer's own websites and infrastructure.
(6) In particular, the Customer is prohibited from the following
1. use of the cloud infrastructure to send spam,
2. to send notifications to third parties without their prior express consent and
3. to monitor third-party or illegal websites.
(7) This contract is being made for an indefinite term. Either Party may terminate this contract at any time by ordinary notice of termination. We may only terminate this contract by ordinary notice of termination where the Customer is not forced to rely on our service except where good cause for the termination is present at the time in question. The Parties' right of extraordinary termination remains unaffected hereby. Any notice of termination is valid only if given in written form within the meaning of sec. 14 (4) of our General Terms and Conditions.
(8) Our liability shall be limited to intentional acts and gross negligence.
(9) We do not warrant uninterrupted availability of the PRTG Cloud.
(10) Secs 3, 5, 6, 8, 10 (1) to (3) and 11 of our General Terms and Conditions shall not apply.
Sec. 9. License key; activation of software
(1) Unless otherwise agreed, the use of the software shall require activation of the software by means of a license key.
(2) Where use of the software requires activation thereof by a license key, our obligation to supply the software is deemed to encompass the provision of a license key and the provision of information to the Customer as to how to go about activating it.
(4) Use of the software on a new computer shall be subject to the prerequisite that the Customer has deleted the software it has installed on the old computer and has re-activated the software after installation on the new computer.
Sec. 10. Automated testing for availability of new program versions
(1) The Customer may configure our software such that it carries out an automated check for availability of new program versions at regular intervals.
(2) Such checks for availability of such new program versions shall be done by means of an Internet link to our server. It is the Customer's responsibility to ensure, at its own cost and expense, that an Internet connection of this kind is present.
(3) In the course of such checks by means of the Internet connection, statistical information on the PRTG installation (e.g. number of sensors) is likewise transmitted to us.
(4) No automated installation of the new program version is provided. It is the Customer's responsibility to install the new program version.
(5) The Terms of License above do not give rise to any right to the provision of any new program version. The prerequisite to any such claim is the Customer's conclusion of a maintenance contract with us.
SPECIAL TERMS AND CONDITIONS OF PAESSLER AG FOR MAINTENANCE OF STANDARD SOFTWARE
Sec. 1. Scope
(1) The terms and conditions set forth below shall apply to our contracts with Customers for maintenance of standard software.
(2) To the extent not otherwise provided in the Special Terms and Conditions for Maintenance of Standard Software set out below, our General Terms and Conditions shall apply supplementally. We shall forward them by e-mail or facsimile to Customers upon request, or make the most recent version thereof available on our website for downloading by the Customer.
Sec. 2. Software to be maintained
(1) The subject-matter of this Agreement is maintenance of the software of the "Commercial Edition" license type, which is designated in the agreement on licensing.
(2) If, during the term of our Agreement, We modify our software in order to comply with contractual obligations or on the basis of a statutory or contractual authorization (e.g. by providing new versions), then the software shall be replaced and superseded by the modified software. The Customer is not entitled to demand that We provide a previous software version.
(3) Our maintenance refers in all cases to the total corpus of the licensed software held by the Customer, to the extent We offer maintenance services for it. If the Customer enters into a maintenance agreement, then the Customer must at all times keep all of the installations for which We offer maintenance services thoroughly maintained.
Sec. 3. Our services
Throughout the term of this Agreement, We shall perform services to maintain the software of the scope agreed pursuant to secs, 4, 5 and 6 of these Terms and Conditions.
Sec. 4. Further development of software
(1) We are obliged, to a reasonable extent, to conduct further development of the licensed software and to provide new versions as a part of our standard release stream.
(2) For purposes of further software development, We are authorised to modify, supplement and further develop the software, including the User interface and dialogue fields as well as User documentation in our free discretion during the term of this Agreement, provided that the material scope of functionality required to use the software in line with the Parties' agreement remains in place and the modification is reasonable to the Customer. This authorization to modify the software also includes an authorization to remove functionalities which are not or which are no longer material to the use of the software in line with the Parties' agreement, provided that this is reasonable to the Customer.
(3) Maintenance shall in all cases be carried out as a part of the life cycle of our software and pursuant to our release strategy. If We plan to discontinue maintaining the licensed software, We shall furnish the Customer with at least twelve calendar months' written notice, indicating the deadline in question; sec. 9 (5) of these Terms and Conditions shall apply mutatis mutandis.
Sec. 5. Provision of new versions of the software
(1) During the term of our Agreement, We shall, as a part of our standard release stream, furnish the Customer with the most recent version of the licensed software in each case for downloading from our website.
(2) The provisions regarding the grant of rights of use, pursuant to our Special Terms and Conditions on licensing the software shall apply to our provision of new versions of the software and our grant of rights of use thereto. In respect of the type and scope of the license, in particular in respect of rights of use to new versions of the software, the Terms of License on the basis of which the Customer acquired the software in each case shall apply mutatis mutandis. We shall forward the respective Terms of License to the Customer upon request, by e-mail or facsimile. We are authorised, but not obliged, to provide the Customer with the option of downloading the applicable version of the respective Terms of License from our website.
(3) The Customer is authorised during the term of our Agreement to request a new copy of his license key from us.
Sec. 6. Support
(1) During the term of our Agreement, We shall perform support services for the Customer in respect of technical questions regarding the licensed software, on the basis of the law governing service agreements (secs. 611 ff. of the German Civil Code ([German acronym:] BGB)) to the extent agreed (hereinafter: "Support").
(2) For this purpose, We shall operate a Support ticket system, which is set up to respond to Customer queries. Support is given exclusively via this Support ticket system. Customers may open Support tickets either by means of the software or on our website.
(3) Our Support services are available to Customers during our operating hours, i.e. on all business days (i.e. calendar days with the exception of Saturdays and Sundays, with the exception of statutory holidays in the German Federal Land of Bavaria and with the exception of 24 December and 31 December of each year), during the period from 9.00 h to 17.00 h (CET/CEST). We are authorised in our free discretion to plan and coordinate the activities required to enable us to perform our Support services.
(4) The subject-matter of the Support is exclusively the PRTG installations which follow the setup described on our website at https://www.paessler.com/prtg/requirements.
(5) In connection with our Support, We will provide Support to the Customer on specific questions regarding functionalities, operating the software and potential problems with the software (e.g. malfunctions of the software caused by Users), where the Customer is unable itself to resolve the question based on the error messages provided by the software or the User documentation or general IT knowledge and skills.
(6) We do not bear any obligation to provide Support
a) if the Customer does not raise its query by using the means of communication designated by us pursuant to paragraph 2 or raises the question outside the Support hours referred to in paragraph 3 or
b) if the Customer does not communicate all of the information We require to process the query in a reasonably processed and documented manner.
(7) The Customer's rights and obligations in the case of defects of the software shall remain unaffected by our Support. Processing of reports of errors of the software is not the subject-matter of our Support, where it falls within the scope of a warranty obligation on our part.
(8) The provision of extended Support services (with availability outside the above-referenced hours) or service levels (e.g. reaction and error elimination times) shall require a separate agreement of the Parties.
Sec. 7. Compensation
(1) The Customer is obliged to pay the agreed compensation.
(2) We invoice for our Support services per year of agreement, except where the Parties have otherwise agreed. The compensation shall be due and payable in advance, except where the Parties have otherwise agreed.
(3) The payment of the license fee for the "Commercial Edition" of our software is full and final consideration for our maintenance services for a contract term of twelve months. At the time of purchasing the license, Customers may also enter into a maintenance contract for a period which is longer than 12 months.
Sec. 8. Commencement and term of Agreement
(1) The contract term shall begin on the calendar day on which the Customer received the license key for the software and the link to download it ("Download Link").
(2) The Agreement has a term of twelve months, unless the Parties have otherwise agreed.
(3) The Parties may extend the term of their Agreement only by mutual agreement.
Sec. 9. Termination of Agreement; consequences of termination
(1) This Agreement shall end upon the expiry of the agreed contract term.
(2) This Agreement may not be terminated by ordinary termination. The Parties' statutory rights of termination remain unaffected hereby.
(3) The Parties' right to exercise extraordinary termination is neither precluded nor limited by these Terms and Conditions.
(4) Any notice of termination shall only be valid if given in written form.
(5) To satisfy the written form requirement, an electronic message shall be deemed sufficient, which We shall furnish to the Customer in the software and which is deemed to satisfy the requirements of written or electronic form. Our declaration will be deemed to have been received by a person with authorization to accept declarations on behalf of the Customer if it is stored in the software such that it may be displayed to the Customer via the software.
(6) Upon expiry of the Agreement, the Customer shall no longer have any entitlement to software maintenance services.
Sec. 10. Reactivation of maintenance
(1) In the event of termination of the Agreement and activation of maintenance by entering into a new agreement, the term of which does not immediately follow the term of the old Agreement, in order to acquire the most current version of the software the Customer must retroactively pay the compensation it would have had to pay if it had concluded the new agreement such that its term followed on directly from the term of the old Agreement.
(2) Our claim for retroactive payment shall be due and payable at such time as the new agreement is concluded.