SwiftMQ Product License, Version 2.1
This product license ("License") contains rights and restrictions associated with the use of the accompanying SwiftMQ software and documentation ("Software") of IIT Software GmbH, Falkenhorst 11, 48155 Münster, Germany ("IIT"). Read the License carefully before using the Software. By using the Software you declare your explicit acceptance of the following licensing conditions. If you do not accept these licensing conditions, you may not use the Software.
1. LICENSE GRANT
1.1. The Software is licensed per installation ("copy") where one copy is (a) SwiftMQ Universal Router: a single instance of a SwiftMQ Universal Router, or (b) SwiftMQ High Availability Router: two High Availability instances of the same logical SwiftMQ Universal Router.
1.2. You may reproduce the Software supplied insofar as the reproduction is necessary for the use of the Software. Necessary copies include the installation of the Software from the original storage medium into the mass storage of the computer used, provided this is not prevented by the copy protection, as well as the loading of the program into the working memory (RAM) and the production of back-up copies. Beyond this, no copies may be made.
1.3. You may use the Software on any of the computer available to you. However, if you change the computer, you must delete the Software from the mass storage of the previously used computer. A simultaneous saving, storage or use on more than one computer is not allowed.
1.4. Furthermore, IIT grants you a perpetual, non-exclusive and non-transferable license to use, market, distribute and license the Software as a part of your product(s) or application(s) in the number of copies you have purchased from IIT, provided that all titles, trademarks, and copyright, proprietary and restricted rights notices shall be reproduced in all such copies, and that all such copies shall be subject to the terms of this License. You may not, and may not permit End-Users to use, reproduce, sublicense, modify or distribute of the Software, in whole or in part, except as expressly permitted under this License.
1.5. You must not rent or lease the Software including the documentation and other accompanying materials to third parties.
1.6. Copyright notices, serial numbers and all other elements designed to identify the Software may not, in any circumstances, be removed or altered.
1.7. IIT reserves the right to audit usage of the Software at any time without prior notice. You agree to allow IIT unrestricted access to all installations of the Software for audit purposes.
1.8. You agree not to disclose any benchmark results relating to its use of the Software without the prior written consent of IIT.
2. LICENSE TERMS
The License is granted for the duration of the statutory term of copyright protection. The License automatically becomes invalid, without the need for termination notice, if you culpably infringe any of the provisions of this agreement. In the case of the contract is coming to an end, the Software and all copies of the Software must be destroyed.
3. DEFECTS IN PRODUCT AND TITLE; OTHER IMPAIRMENTS IN PERFORMANCE; STATUTES OF LIMITATIONS
3.1. IIT represents and warrants in accordance with the provisions on the sales of goods under German law for the agreed characteristics of the software.
3.2. All warranty claims expire after one year with effect from the delivery or provision of the Software (or with effect from the time at which the Licensee is notified of the provision); the same period applies for other claims against IIT, regardless of their nature. The statutes of limitations apply in cases of premeditated acts or gross negligence on the part of IIT, in cases of fraudulent concealment of a defect, in cases of personal injury or defects of title as per Section 438, Paragraph 1, No. 1a of the German Civil Code ("Buergerliches Gesetzbuch"), and for warranties (Section 444 of the German Civil Code), including for claims made in accordance with the German Product Liability Act ("Produkthaftungsgesetz").
3.3. The Licensee is obliged to perform examinations and submit complaints as per Section 377 of the German Commercial Code ("Handelsgesetzbuch") with respect to all deliveries and services provided by the Licensee in the fulfillment of this Agreement. The Licensee should try to provide IIT (if possible in written form) with detailed information about the way the deficiency presents itself and how it affects the operation. He should describe the exact circumstances in which the deficiency occurs.
3.4. The Software provides the Licensee with the possibility to back up the data he has entered into the system and retrieve it after the installation of the corrected version. The Licensee can only demand IIT to repair the Software installed on the Licensee`s system in case it is not possible to back up the data the Licensee has entered into the system due to the deficiency of the Software and this does not constitute an unreasonable effort for IIT.
3.5. IIT bears all expenses required for supplementary performance, in particular costs for transport, travel, labor and material. IIT is not committed to install the Software on the system of the Licensee in performance of his obligations. In so far as the Software has to be altered in course of supplementary performance, IIT will adapt the documentation where necessary.
3.6. In the event of material defects, the Licensee should set a reasonable deadline for supplementary performance. If two attempts of supplementary performance are unsuccessful, the Licensee may withdraw from the contract or reduce the purchase price, unless the defect is minor. In the case of revocation, compensation of value is calculated on depreciation over 4 years. Compensation or replacement for unsuccessful efforts to remedy a defect shall be provided by IIT within the limits established in Section 4.
3.7. If IIT provides services in the course of diagnosing or repairing errors without any obligation on IIT's part, IIT is entitled to demand payment consistent with its usual rates for these services. This applies in particular if a defect is not demonstrable or not attributable to IIT. Additional expenses incurred by IIT as a result of the Licensee not fully meeting its obligations under this section must also be paid. If the Licensee makes changes in the Software without obtaining permission in writing, or if the Software is not used in the designated way or software environment, all claims for warranty are excluded unless the Licensee proves that these changes were not related to the defect.
4. LIMITATION OF LIABILITY
4.1. In all cases of liability, whether they arise from a contractual agreement or not, IIT shall provide compensation solely in the following cases: (a) For acts of willful intent, and in cases where a characteristic is not present but for which IIT has provided a guarantee. (b) In cases of gross negligence, only to the value of the predictable damage that could have been avoided if the violated obligation had been met. (c) In other cases: Only for a violation of a material contractual obligation, if the purpose of the contract is jeopardized as a result, but only to the amount of the predictable damage. Beyond this, any further liability is excluded.
4.2. The limitations to liability do not apply to liability for personal injury or liability under the German Product Liability Act ("Produkthaftungsgesetz").
4.3. If both IIT and the Licensee bear responsibility for the damage, the Licensee bears the damages to the extent which relates to the grade of his responsibility.
4.4. The limitations of liability do not apply to damages incurred as a result of gross organizational fault.
4.5. It is the customer's responsibility to regularly backup his data. In the event of a data loss caused by IIT, IIT is only liable for the cost of data reproduction from the backup copies provided by the customer, and for the recovery, creating backup copies, and the cost of restoring data which would have been lost even if the data had been safeguarded in an appropriate way.
4.6. For the statute of limitations, Section 4 (2) applies as appropriate, provided that the statutory period of limitations as per Items 1a) and 2 apply. The period under the statute of limitations as per sentence 1 begins as of the time determined in Section 199, Paragraph 1 of the German Civil Code. It enters force no later than the maximum periods laid out in Section 199, Paragraphs 3 and 4 of the German Civil Code.
5. OBLIGATION TO INSPECT GOODS AND NOTIFY DEFECTS
Licensee is obliged to inspect the supplied Software for obvious defects which would be clearly noticeable for an average customer. Obvious defects, in particular the absence of storage media or handbooks as well as considerable, easily visible damage to the storage medium must be notified to IIT in writing within two weeks of delivery. The defects, and especially the symptoms which have arisen, must be described in detail. Licensee must notify IIT of defects which are not obvious within two weeks after Licensee becomes aware of these. In the case of non-compliance with the inspection and notification obligation, the Software shall be deemed accepted despite the respective defect.
This License is governed by the law of the Federal Republic of Germany with the explicit exclusion of UN purchasing law. Should any provision of this agreement be or become invalid or unenforceable, the remaining terms of this agreement shall be unaffected thereby. The invalid or unenforceable provision shall be replaced by such a provision that comes closest to fulfilling the purpose of the invalid provision. Side agreements were not made. Alterations and amendments to this licensing agreement require the written form. This also applies to the cancellation of this written form provision.