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Software License Agreement for Academic and Nonprofit Use
This Software License Agreement for Academic and Nonprofit Use (the "Agreement", as defined below) is a legal contract between you ("YOU", as defined below) either in your individual capacity, or on behalf of an entity, and bankmark UG (haftungsbeschraenkt). This Agreement states the terms and conditions upon which bankmark UG (haftungsbeschraenkt) offers to license the "Parallel Data Generation Framework" ("PDGF") software together with all related documentation and accompanying items including, but not limited to, the source code, executable programs, drivers, libraries and data files associated with such programs (the "Software", as defined below).
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING, OBTAINING A LICENSE KEY, OR OTHERWISE ACCESSING OR USING BANKMARK UG (HAFTUNGSBESCHRAENKT)'S PROPRIETARY SOFTWARE ACCOMPANIED BY THIS AGREEMENT (THE "SOFTWARE").
THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS AGREEMENT, NOT SOLD TO YOU. BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT; THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION OR AGENCY, INSTRUMENTALITY OR DEPARTMENT OF A GOVERNMENT (AN "ENTITY") AS ITS AUTHORIZED LEGAL REPRESENTATIVE, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, AND REFERENCES TO "YOU" HEREIN REFER TO BOTH YOU, THE INDIVIDUAL END USER, AND THE ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THIS AGREEMENT.
IF AT ANY TIME YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU SHOULD ANSWER "NO" TO THE QUESTION OF WHETHER YOU AGREE TO THE TERMS OF THIS AGREEMENT, TERMINATE THE DOWNLOAD AND/OR INSTALLATION PROCESS, IMMEDIATELY CEASE AND REFRAIN FROM ACCESSING OR USING THE SOFTWARE AND DELETE ANY COPIES YOU MAY HAVE.
Definitions
"bankmark UG (haftungsbeschraenkt)" refers to bankmark UG (haftungsbeschraenkt), Bahnhofstrasse 10, 94032 Passau, Germany, a private limited liability company incorporated under the laws of the Federal Republic of Germany, registered in the trade register of the local court of Passau under No. HRB 8844. bankmark UG (haftungsbeschraenkt) is the developer of this software product.
"Software" refers to this software product called "Parallel Data Generation Framework" ("PDGF") developed by bankmark UG (haftungsbeschraenkt), licensed and distributed under this Software License Agreement for Academic and Nonprofit Use by bankmark UG (haftungsbeschraenkt) and compiled into an installation package and delivered by bankmark UG (haftungsbeschraenkt) electronically. This software product contains "PDGF" byte code distribution, sample configurations and dictionaries, documentation, additional tools and scripts. This software product allows its users to (1) configure the data generator "PDGF" and (2) to generate data.
"Agreement" refers to this Software License Agreement for Academic and Nonprofit Use and the terms and conditions set forth by this Software License Agreement for Academic and Nonprofit Use.
"YOU" refers to the individual who registers with bankmark UG (haftungsbeschraenkt) for academic and nonprofit use of this software product or, if this software product is being licensed on behalf of an entity by an individual authorized to register with bankmark UG (haftungsbeschraenkt) for the academic and nonprofit use of this software product on behalf of such entity, then "YOU" refers to such entity.
"Personal Data" refers to personal data in the meaning of Section 3 Para. 1 of the German Data Protection Act, i.e., any information concerning the personal or material circumstances of a defined or definable natural person.
1 Subject
This Agreement constitutes a software contract of loan for use according to Sections 598 subsequent of the German Civil Code, which is hereby concluded between YOU and bankmark UG (haftungsbeschraenkt) according to the terms and conditions of this Agreement.
This Agreement furthermore constitutes a virus inspection and prevention agreement which is hereby concluded between YOU and bankmark UG (haftungsbeschraenkt) according to the terms and conditions of this Agreement.
This Agreement does not constitute any agreement between YOU and bankmark UG (haftungsbeschraenkt). bankmark UG (haftungsbeschraenkt) is therefore not subject of any contractual rights and obligations under this Agreement. YOU shall have no contractual claims and obligations against bankmark UG (haftungsbeschraenkt) Software under this Agreement. YOUR claims against bankmark UG (haftungsbeschraenkt) provided by the applicable mandatory statutory laws remain unaffected by this Agreement.
The Software is lent and licensed to YOU by bankmark UG (haftungsbeschraenkt) under this Agreement and NOT sold to YOU.
YOU acknowledge that the Software is proprietary to bankmark UG (haftungsbeschraenkt), and the Software is protected under German copyright and other intellectual property laws and international treaty provisions.
YOU further acknowledge and agree that, as between YOU and bankmark UG (haftungsbeschraenkt), bankmark UG (haftungsbeschraenkt) and its third party licensors own and shall continue to own all right, title, and interest in and to the Software, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws.
Except for the limited, revocable license expressly granted to YOU herein, this Agreement does not grant YOU any ownership or other right or interest in or to the Software or any other intellectual property rights of bankmark UG (haftungsbeschraenkt), whether by implication, estoppel, or otherwise. Any and all trademarks or service marks that bankmark UG (haftungsbeschraenkt) uses in connection with the Software or with services rendered by any of bankmark UG (haftungsbeschraenkt) are marks owned by bankmark UG (haftungsbeschraenkt). This Agreement does not grant YOU any right, license, or interest in such marks, and YOU shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks.
2 Right and License to Use
Under this Agreement the Software shall only be used for an academic or non-commercial purpose. If YOU desire to license the Software for a commercial purpose or other purpose not permitted under the scope of this Agreement, YOU must enter into a separate software license agreement with bankmark UG (haftungsbeschraenkt) and pay all applicable license fees before engaging in such use.
During the term of this Agreement, pursuant to Section 3 (Term and Termination), below, bankmark UG (haftungsbeschraenkt) hereby grants YOU a worldwide, non-exclusive, non-transferable, time-limited and terminable right and license to use the Software free of charge on the limited basis set forth in this Agreement. All right, title and interest in and to the Software and any enhancements or updates remain with bankmark UG (haftungsbeschraenkt).
The Software is delivered to YOU electronically by download, e-mail or other electronic means of delivery provided by bankmark UG (haftungsbeschraenkt) or by mail.
Under this Agreement, YOU are entitled to grant any of YOUR employees, academic staff and students the right and license to use the Software. Any such grant of right and license to use the Software is restricted to the use of the Software for YOUR academic and nonprofit purposes according to YOUR instructions.
YOU may not 1) use, copy, modify, or extend the Software except as provided in this Agreement; 2) distribute the Software, on its own, merged into or integrated with other software; 3) reverse assemble, reverse compile, or otherwise translate the Software except if and as specifically permitted by this Agreement or by mandatory statutory law without the possibility of contractual waiver; 4) sell, sublicense, rent, or lease the Software. If the applicable laws under YOUR jurisdiction allow YOU to modify the Software, e.g., in case of a defect that is not eliminated by bankmark UG (haftungsbeschraenkt) within reasonable time or to establish compatibility with other software, YOU are not allowed to delegate the modification to a contractor that is or might become a potential competitor of bankmark UG (haftungsbeschraenkt).
Any portion of the Software merged into or integrated with other software or documentation will continue to be subject to the terms and conditions of this Agreement.
YOU must ensure that anyone who uses the Software (accessed either locally or remotely) does so only for YOUR authorized use and fully complies with the terms and conditions of this Agreement. YOU must protect the Software provided to YOU by bankmark UG (haftungsbeschraenkt) against unauthorized use by third parties. In case a third party, including YOUR employees, infringes the terms and conditions of this Agreement and/or the intellectual property rights of bankmark UG (haftungsbeschraenkt), YOU must inform bankmark UG (haftungsbeschraenkt) without undue delay after finding out about the infringement. Furthermore, YOU must closely co-operate with bankmark UG (haftungsbeschraenkt) to stop the infringement. The same applies if YOU receive a request from an unauthorized third party to allow and grant access and use of the Software - in particular from individuals or organizations formerly related to YOU.
The right and license to use the Software will expire at the termination of this Agreement, pursuant to Section 3 (Term and Termination), below.
3 Term and Termination
This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, installing, accessing, and using the Software, even if you have not expressly accepted this Agreement.
The license granted to you is effective until terminated.
The term of this Agreement starts with the issuing and delivery of the Software to YOU.
During the term of this Agreement YOU may terminate this Agreement at any time without cause.
This license is granted to you for a limited period of time. The license terminates following expiry of the agreed license period. The license period shall commence on the date of issuing and delivering of the Software to YOU. The license period shall expire on December 18, 2015. With the end of the license or with the provision of a new license by bankmark UG (haftungsbeschraenkt) to you, your right to use the former supplied Software expires.
bankmark UG (haftungsbeschraenkt) is entitled to terminate this Agreement, without prejudice to any other rights or remedies, at any time without prior notice to YOU in the event that YOU engage in, or participate with any third party in, the unauthorized manufacture, duplication, distribution or use of the software, otherwise infringe any other intellectual property right of bankmark UG (haftungsbeschraenkt) or YOU materially fail to comply with any other term or condition of this Agreement.
At the end of the term or upon termination of this Agreement, YOU agree to either 1) immediately return the Software (including any portions or copies thereof) to bankmark UG (haftungsbeschraenkt) or 2) immediately destroy all copies of the Software. Upon termination, bankmark UG (haftungsbeschraenkt) may also enforce any rights provided by law.
YOU shall not be entitled to derive any rights and claims against bankmark UG (haftungsbeschraenkt) by the continued use of the Software after the end of the term or upon termination of this Agreement. In particular, the continued use of the Software by YOU after the end of the term or upon termination of this Agreement without the explicit consent of bankmark UG (haftungsbeschraenkt) cannot be interpreted as an implicit approval of bankmark UG (haftungsbeschraenkt) to the continued use and/or an extension of this Agreement.
4 Installation, Support and Updates
The Software is installed and run by YOU at YOUR own risk.
During the term of this Agreement, pursuant to Section 3 (Term and Termination), above, bankmark UG (haftungsbeschraenkt) will provide support, free new versions of the Software ("Update"), or maintenance services at its own discretion. You acknowledge that bankmark UG (haftungsbeschraenkt) has no express or implied obligation to announce or make available any updates, enhancements, modifications, revisions, or additions to the Software and that this Agreement does not give you any rights in or to any of the foregoing.
5 Virus Inspection and Prevention Agreement with bankmark UG (haftungsbeschraenkt)
Without limitation, bankmark UG (haftungsbeschraenkt) does not warrant that the functions contained in the Software will meet your requirements or that the operation of the Software will be uninterrupted, error-free or free from malicious code. For purposes of this paragraph, "malicious code" means any program code designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data, or in some other fashion usurp the normal operation of the computer, computer system, or computer network, including viruses, Trojan horses, droppers, worms, logic bombs, and the like.
6 Use and protection of YOUR Personal Data
Please note: YOU hereby declare YOUR consent to the storage, processing and transfer of YOUR Personal Data by bankmark UG (haftungsbeschraenkt) in accordance with the following data protection und usage provisions:
bankmark UG (haftungsbeschraenkt) is entitled to collect, store, use and process YOUR Personal Data exclusively for the conclusion and execution of this Agreement.
YOUR Personal Data will only be collected from and provided by YOU if not otherwise admissible according to the German Federal Data Protection Act ("Bundesdatenschutzgesetz").
bankmark UG (haftungsbeschraenkt) will observe all mandatory statutory provisions of the German Federal Data Protection Act, the Teleservice Data Protection Act ("Teledienstdatenschutzgesetz") and all other applicable statutory laws regarding the collection, storage, usage and processing of YOUR Personal Data.
7 Acknowledgement and Publicity
Any publication or presentation to which the use of the Software under this Agreement materially contributed shall either describe the contribution made by the Software or note that the work was (partly) supported by a grant from bankmark UG (haftungsbeschraenkt).
8 Warranty and Liability
The Software is provided "as is" and "as available". bankmark UG (haftungsbeschraenkt) provides YOU with no contractual warranties or conditions either expressed or implied, including but not limited to, the implied warranties or conditions of merchantability, fitness for a particular purpose, and non-infringement, regarding the Software. YOU assume responsibility for the selection of the Software to achieve intended results and for the installation, use and results obtained from the Software. Further, there is no contractual warranty of title, enjoyment, lack of infringement or that the operation of the Software will be uninterrupted or error-free.
YOUR statutory warranty rights under this Agreement are subject to the following restrictions:
bankmark UG (haftungsbeschraenkt)'s liability regardless of negligence or fault with regard to initial defects of the Software is hereby excluded.
In the event of a defect of the Software, YOU are only entitled to claim supplementary performance and delivery of the Software free of defects, pursuant to Section 4 (Installation, Support and Updates), above.
In case that the supplementary performance and delivery of the Software finally fails within reasonable time or if the supplementary performance and delivery of the Software is not reasonable at all, YOU shall be entitled to withdraw from this Agreement. YOU shall not be entitled to claim for damages against bankmark UG (haftungsbeschraenkt) due to YOUR withdrawal from this Agreement.
bankmark UG (haftungsbeschraenkt)'s liability under this Agreement is furthermore subject to the following restrictions:
bankmark UG (haftungsbeschraenkt) shall not be liable for any damages caused by defects of the Software except for damages caused by defects of the Software, which are fraudulently concealed from YOU in the meaning of Section 600 of the German Civil Code.
With regard to all other damages the liability of bankmark UG (haftungsbeschraenkt) shall be restricted as follows:
bankmark UG (haftungsbeschraenkt) is liable without any restriction 1) in case of willful misconduct or gross negligence, 2) in case of bodily injury and/or injury of health, and 3) according to the applicable provisions of the German Product Liability Act.
In case of a slightly negligent violation of a main contractual duty of this Agreement by bankmark UG (haftungsbeschraenkt), which has to be fulfilled in order to enable the execution of this Agreement in an orderly manner and on whose fulfillment YOU could usually rely and whose violation would endanger the achievement of the purpose of this Agreement, YOUR claims against bankmark UG (haftungsbeschraenkt) under this Agreement are limited to direct losses which are foreseeable and typical for this type of software license agreement. The liability of bankmark UG (haftungsbeschraenkt) for loss of, or damage to, data is limited to the refund of the typical effort for data recovery in case of regular and suitable security backups by YOU.
bankmark UG (haftungsbeschraenkt) shall not be liable for any other slightly negligent violation of any contractual and/or statutory duty. Under no circumstances bankmark UG (haftungsbeschraenkt) shall be liable for any loss of use, interruption of business, or any direct, indirect, special, incidental, and/or consequential damages of any kind, including loss of, or damage to, data, lost profits, business, revenue, goodwill, or anticipated savings, even if informed of their possibility. YOU assume the entire risk as to the quality and performance of the Software. As some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, the above limitation or exclusion may not apply to YOU in full, but shall be interpreted to apply to the greatest extent enforceable under applicable law.
In all other cases any contractual or non-contractual liability for damages by bankmark UG (haftungsbeschraenkt) shall be excluded.
bankmark UG (haftungsbeschraenkt) is not liable for damages of any kind which are caused by unauthorized and/or improper use of the Software and/or use of software that is not authorized by bankmark UG (haftungsbeschraenkt).
The foregoing limitations of liability also apply with regard to all bankmark UG (haftungsbeschraenkt)'s representatives, including but not limited to its directors, legal representatives, employees and other vicarious agents.
9 Entire Agreement and Modifications
This Agreement, along with any additional terms or policies incorporated herein by reference, constitutes the entire understanding and contract between YOU and bankmark UG (haftungsbeschraenkt) and supersedes and replaces any and all prior and contemporaneous proposal, representation, or understanding you may have had with bankmark UG (haftungsbeschraenkt) relating to the Software, whether orally or in writing.
This Agreement may not be modified or amended unilaterally by YOU, including by custom, usage of trade, or course of dealing, except by an instrument in writing signed by duly authorized representatives of both parties. YOUR requests for modification of this Agreement shall be addressed to info@bankmark.de.
10 Governing Law and Attorneys' Fees
This Agreement shall be exclusively governed and interpreted by the law of the Federal Republic of Germany. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods (CISG), the application of which is expressly excluded.
Any action arising under and/or relating to this Agreement shall be subject to the exclusive jurisdiction of the courts located at bankmark UG (haftungsbeschraenkt)'s registered seat in Passau, Germany. However, bankmark UG (haftungsbeschraenkt) reserves the right to sue YOU at YOUR domicile.
In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorney’s fees.
11 Severability and Survival
If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation. To the extent possible the provision will be interpreted and enforced to the greatest extent legally permissible in order to effectuate the original intent, and if no such interpretation or enforcement is legally permissible, shall be deemed severed from this Agreement.
The provisions of Sections 1, 2 (7-10) and 8 through 10 shall survive the expiration or termination of this Agreement. The mandatory statutory provisions applicable between the parties remain unaffected.
12 Headings
The Article and Section headings contained in this Agreement are incorporated for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
13 Governing Language
Any translation of this Agreement is done for local requirements and in the event of a dispute between the German and any non-German versions, the German version of this Agreement shall govern.
