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Software Licence Agreement

(Dated: October 25, 2017)

In addition to the software purchase agreement, the software lease agreement or the software donation agreement, WAGO Kontakttechnik GmbH & Co. KG (WAGO) and the Customer (also referred to herein as “User”) enter into the following license agreement, with which the Customer expressly confirms that it is not a consumer (in terms of § 13 of the German Civil Code (Bürgerliches Gesetzbuch – BGB). User is entitled (but not obligated) to register at www.wago.com for the product-specific newsletter.

§ 1 Scope of the License

1. Basic Content of the Right of Use In accordance with the license models regulated in subparagraph 2 below, WAGO grants the User a nonexclusive and, unless otherwise agreed, non-expiring and non-assignable right to personally use the supplied software in object code in accordance with this license agreement. If a need exists and it has not been otherwise agreed, the User shall assume responsibility for installing and configuring the software (see § 3). The software may not be modified and the rights of use associated with the respective license model may not be transferred to third parties (including by way of sublicensing) unless otherwise expressly regulated in this license agreement or in an individual agreement. Moreover, in case of doubt the provisions on the scope of the license shall be strictly interpreted. If otherwise agreed, the User must obligate the third party to assume the full extent of the rights and duties under this license agreement.

2. License-Model-Dependent Scope of Use This license agreement permits the User to use the licensed software in conformity with this agreement within the limits specified by the license, which are described below.
“Individual licenses” include the right to use the software and the corresponding license key on or with a computer; contemporaneous parallel use on other computers or more than one instance of the web portal is not permitted. “Workstation licenses” grant the right to use the software on or with up to two computers at the same time and therefore comprise two corresponding license keys; contemporaneous parallel use of more than two instances of the web portal is not permitted. “Multi-user licenses” involve the right to use the software and the license keys simultaneously on or with a number of computers or a number of instances of the web portal equal to the number of license keys purchased. “Site licenses” involve the right to use the software and the corresponding license key on or with a large number of computers at a site of the User, while “Buy-out licenses” involve the right of the User to utilize the software and the corresponding license key for an unlimited number of computers at an unlimited number of company sites in a country. In addition, buy-out licenses include the right of the User to utilize the software in its end products, provided that such end products contain WAGO automation technology; in such case, the User is entitled to grant rights of use to the extent required for the intended use of the end product (but the license key may not be passed on in any event). “Computer” in terms of this license agreement also means “controller” or “embedded devices.” To transfer the license to another computer, it may be necessary to involve WAGO.
Individual licenses, workstation licenses, multi-user licenses, site licenses and buy-out licenses are referred to together in the following as “license models.” If a license model is further particularized through the adjective “temporary” (or a comparable addition), the corresponding license is valid for a limited time, with the validity period (calculated from the first installation or use) resulting from the specific license label. Temporary licenses can be extended through corresponding license keys or converted into a permanent license. The prices of the license keys required for this are based on the current WAGO catalog. The software may no longer be used upon expiration of the term.

3. Software Type If the licensee uses engineering software (“ESW”) to produce their own programs or data that contain parts of the ESW, the licensee has the right, without paying license fees, to duplicate or use such parts of the ESW as a component of its own programs or data or to supply them to third parties for use. If the licensee incorporates runtime software (“RSW”), or parts thereof, into their own programs or data, the licensee must, before each installation or duplication of its own programs or data that contain RSW or parts thereof – depending on which occurs first – install a license for the RSW in accordance with the intended type of use pursuant to the then applicable WAGO catalog. Unless the software type is otherwise explicitly agreed on by contract, the above provisions for RSW automatically apply.

4. Test Versions Test versions that can be downloaded and installed for free from the WAGO website without ordering or that can be used online without installation include the right to use the software for test purposes, which is normally limited to 30 days of operation; additional rights are excluded. “Days of operation” are only such calendar days on which the software is started at least once. Download, installation and use of test versions occur at the User's own risk. WAGO expressly makes no warranty that the test version is actually fit for the User's intended use. Test versions are, however, fully functional software versions in which all functions can be used – including the download. If requested by the User, the 30-day evaluation period can be extended through a test period extension license at WAGO's discretion. If the User decides on a specific license model following the expiration of the evaluation period, the User can purchase the required license for this for a fee and activate the full version by entering the corresponding license key. The provisions of this license agreement apply to the full version upon its activation.

5. “WAGO software components,” which are expressly marked as “free,” or with proper use and/or technical implementation allowing for implementation in third-party controllers, entitle the User to use the licensed components (in particular the WAGO libraries) in its end products to the extent that WAGO automation technology is used in such a way that it is actively incorporated into the end product (and is not only present). Within this framework, links with other software for establishing ineroperability are permitted. No further rights are granted. In particular, the User is not authorized to use and/or market parts extracted from the WAGO software components.

6. Usage Restrictions Subject to mandatory statutory requirements or other provisions in this license agreement, the User is not allowed to (i) copy or otherwise duplicate any part of the software (except to the extent provided by law for backup purposes), (ii) publicly reproduce or make the purchased software available, either wired or wirelessly, (iii) translate, analyze, decode, convert or disassemble the source code of the software or otherwise modify it in any way, (iv) create improperly derivative works based entirely or in part on the software, (v) modify or remove notes or references to copyrights or other protected rights, (vi) improperly pass the software on to other persons (such as through rental, lending or leasing) or (vii) use the software in areas with special risk which require flawless continuous operation and in which a failure of the software can result in immediate risk to life, limb or health or in significant damage to property or the environment (such as the operation of nuclear power plants, weapons systems, aircraft and motor vehicles).

7. Clarifications: It is herewith declared (x) that no warranty is assumed for the licensed software (inc. WAGO software components) actually being suited for a defined purpose (unless otherwise agreed in writing), (y) that the contractually compliant transfer of the software by WAGO wholesalers to their end customers does not represent improper transfer in line with subsection (vi) of the previous section 6 and (z) that the User of WAGO software components is not authorized to use the licensed components (such as the WAGO library) in end products in which WAGO automation technology is not actively used, but only present or not used at all.

8. Intellectual Poperty Ownership, property rights and industrial property rights in the software remain with WAGO and are under the protection of international laws and treaties in the area of copyright and industrial property rights. The software is licensed, not sold. Ownership or property rights in the software are not transferred to end users, and the license granted in the scope of this agreement may not be construed as a sale of rights in the software. All rights which are not expressly granted in the scope of this agreement remain reserved to WAGO.

§ 2 Third-Party Software Components

1. Open Source Software If the software contains open source software (also referred to as “OSS” herein), this is listed in the Readme_OSS file of the software (or in the file that corresponds to this); alternatively, the corresponding file is also made available online, by download Link or by e-mail for a period of up to three years after purchase of the product. The same applies to the associated source code. The User is authorized to use the open source software beyond the normal use in accordance with the OSS license terms that are applicable in each case. Such OSS license terms (e.g. GNU General Public License - GPL, GNU Lesser GPL - LGPL, BSD License, Apache License, MIT License) are enclosed with the software and, relative to the holders of rights, have priority over this license agreement and the general terms and conditions of sale and delivery of WAGO. The OSS license terms also have priority to the extent that, based on the combination of OSS components with proprietary components, they grant the User certain rights of use also in relation to the proprietary components or such rights of use are to be granted according to the OSS license terms of WAGO. If requested by the User, WAGO will provide the OSS source code to the User in exchange for corresponding reimbursement of expenses, provided that the license terms for OSS provide for such delivery of the source code. A corresponding request is to be submitted to:

Technical Support AUTOMATION

Phone: +49 (571) 887 555

Fax: +49 (571) 887 8555

Email: support@wago.com

2. Third-Party Software Along with OSS, the software may also contain third-party license software – in other words, software which was not developed by WAGO itself, but which WAGO obtained by license from third parties. If in such case, together with the software and the Readme_OSS file, the User receives the terms and conditions of the respective licensor of the third-party license software (“third-party license terms” herein), or if, alternatively, such third-party license terms are available on the hard disk after installation, they apply with respect to the licensor's liability toward the User.

3. Warranty and Liability Except for intentional acts and gross negligence, the warranty of WAGO is limited to those software components that are not OSS, but for which WAGO is either the author or entitled to proprietary rights of use. The terms of this license agreement apply in each case to WAGO's liability toward the User.

§ 3 Installation of the Software

1. Software Installation According to the agreement, WAGO delivers the software to the User either on storage media, via download, as a product component or provides online access. The User is responsible for installation and configuration (if necessary). During activation, the software sends WAGO information on the software and, as appropriate, on the User's computer; details on this are found at www.wago.com/global/privacy-policy. If the licensed computer or the web portal is connected to the Internet, the software automatically establishes a connection with WAGO for the activation, if such is required for the installation of the respective software.

2. Data Use WAGO uses the data that it collects through the software features to update or correct the software and to otherwise improve its own products and services. Under certain conditions, WAGO also shares it with others. For example, WAGO passes error reports on to relevant hardware and software providers in order that, with the aid of such data, they will be able to improve the use of WAGO products for their products. The User declares its agreement that WAGO is entitled to use and disclose the data as described in the privacy policy at www.wago.com/global/privacy-policy. When the computer or web portal is connected to the Internet, some features of the software potentially establish a link to WAGO computer systems or service providers in order to send or receive data. The User may not always receive a separate notice when the connection is established. When the User decides to use one of these features, he thereby declares his agreement to send or receive such data through the use of these features; these features can be deactivated by the User.

3. Updates When the User installs the software covered by this agreement as an update of existing software or when the web portal is updated, the update replaces the original software being updated. Unless the OSS license terms expressly provide otherwise, the User retains no rights in the original software after having executed the update, nor is the User authorized to continue to use or transfer it in any manner. If the User has activated the corresponding function, the software – potentially at regular intervals – performs a check with WAGO for updates of the software. If updates are found, they may be automatically downloaded and installed on the licensed computer; the User can also download and install the updates manually from the WAGO website.

4. License Control Rights Upon request, the User shall permit WAGO to verify the proper use of the software, particularly whether the User is using the software within the scope of the licenses the User purchased; this does not apply if such a verification would be prohibited under the relevant OSS license terms or the User, upon request, bindingly informs WAGO within a reasonable time of the results of a self-audit. If the verification or communication reveals a use of the software by the User in breach of contract, WAGO is entitled to invoice the User for lump-sum compensation in the amount of the license fees incurred for the additional use in accordance with the current price list. Moreover, the User shall bear the reasonable cost of the verification. The assertion of a claim for greater loss remains reserved.

§ 4 Liability for Defects

1. Defects A defect exists when, to the detriment of the User, the quality of the software deviates from the product description in the available documentation at the time of contract formation; to this extent it is agreed that minor and negligible deviations are insignificant, as it is not possible to develop software such that it fulfills all application requirements without any errors. The WAGO software is not suitable for use with products other than WAGO's unless the fact of its suitability is represented in the product description or WAGO's presentation of the product (example: e!COCKPIT). Statements as to quality or possible applications of the software do not constitute warranties in terms of §§ 443, 444 BGB – even if they are characterized as warranties – unless the statements are expressly characterized as warranties in writing or in text form (“Textform” – § 126(b) BGB), making reference to the statutory provision.
WAGO planning and WAGO design software is only for improved visualization and does not absolve the user of the obligation to examine the admissibility and functionality of the respective planning result with due diligence and to comply with the recognized rules of technology, as well as legal requirements and DIN standards. WAGO is not responsible for incorrect or incomplete entries or for incorrect material or component selection when using the WAGO planning and WAGO design software. The WAGO software it not suitable for planning with products other than those by WAGO.

WAGO shall be liable for defects as follows:

2. Warranty Provision WAGO shall, at its option, repair or replace, without charge, defective software for which pre-existing causes at the time of the passing of risk. In the case of software defects where WAGO is in possession of the source code and is authorized to modify it, WAGO shall rectify any defects, at its option, either by providing a new version of the software, in which only the defect is cured, or by providing an update in which the error is also cured. In the case of software defects where WAGO is not in possession of the source code or is not authorized to use it, WAGO will cure the defect as follows: if WAGO is in possession of an update or if WAGO can supply an update with proportionate effort, WAGO will rectify the defect by providing the update.
Notices of defects must be delivered without delay in written form or in text form. WAGO must be granted an opportunity to rectify within a reasonable time. The diagnosis and rectification of defects shall occur either at WAGO or at the installation site of the software. However, for software that has no license fees, WAGO shall be liable only for intentional acts, fraud or gross negligence. Claims for rectification (repair or replacement) lapse twelve months after the legal limitation period commences. The same applies to rescission and reduction in price. This deadline shall not apply where the law pursuant to §§ 438 (1) no. 2 BGB (buildings and things that have been used for buildings) and § 479 (1) BGB (recourse claims) prescribes longer periods, nor to intentional acts, fraudulent concealment of the defect or to failure to adhere to a warranty of quality. If the attempt to rectify ultimately fails, the User may rescind the agreement or reduce the price. In every case, claims of the User are excluded for necessary expenditures for the purpose of rectification – particularly the costs of transport, travel, labor and materials – insofar as such expenditures increase because the software has subsequently been moved to a location other than the branch office of the User unless the move is consistent with the intended use or the other location is the place of performance and the additional expenditures substantially exceed the usual amount.

3. Exclusions No claims for defects may be made for inevitable wear and tear incurred after the passing of risk as a result of improper use (including failure to observe the specifications in the product manual, or other product information), or of incorrect or careless handling or excessive stress or for losses based on exceptional external influences which are not anticipated in the agreement. Claims for defects are excluded in particular if functional restrictions were referred to in the release notes associated with the product. Moreover, claims for defects are available only when they are reproducible. If the Customer or a third party undertakes improper modifications to the software or extends the software over interfaces, no claims are available for such modifications or extensions and the ensuing consequences.

4. No change in the burden of proof to the detriment of the Customer is intended or associated with the above provisions..

§ 5 Liability for Defective Title

1. Defective Title WAGO shall provide the software to the User free from third-party industrial property rights (“protected rights” herein) in the country of the place of delivery. If a third party makes justified claims against the User for the infringement of protected rights through software which is used as contracted, WAGO shall provide a warranty to the User as follows:

2. Warranty Provision WAGO shall, at its option, obtain at its own cost a right to use the software in question, modify the software in such a way that the protected right is not infringed, file a petition for cancellation or revocation, or replace it. If this is not possible on reasonable conditions, the legal rights to rescind the contract or reduce the price shall be available to the Customer. The above obligations shall exist only if the User immediately informs WAGO in writing or in text form concerning the claims asserted by the third party, does not acknowledge any infringement and all defensive measures and settlement negotiations remain reserved for WAGO. If the User stops using the software in order to mitigate loss or for any other important reason, the User is obligated to point out to the third party that the discontinuation of use is not associated with an acknowledgement of infringement.

3. Exclusions Claims of the User lapse twelve months after the legal limitation period commences. Claims of the User are excluded if the User is responsible for the infringement of the protected right. Claims of the Customer are also excluded if the infringement of the protected right is occasioned by special instructions of the User or by an application that is not approved by WAGO. Claims of the Customer are also excluded if the software is modified by the User or just utilized in an infringing manner together with products not supplied by WAGO. Further claims of the User against WAGO and its agents for defective title or other than those regulated in this section 5 are excluded.

4. No change in the burden of proof to the detriment of the Customer is intended or associated with the above provisions.

§ 6 Joint and Several Liability

1. Limitation of Liability Any claims the User may have for damages and reimbursement of expenses (“damages claims” herein), irrespective of the legal reason – particularly for a breach of duties arising from the contractual obligation, in tort and from indirect damages – are excluded. This shall not apply where there is mandatory liability, particularly under the German Product Liability Act (“Produkthaftungsgesetz”), in cases of intent, gross negligence or fraud, injury to life, limb or health, or culpable breach of material contract obligations. However, damages claims arising from the culpable breach of material contract obligations shall be limited to foreseeable loss which is typical of contracts unless intent or gross negligence is present or liability for injury to life, limb or health exists.

2. Contributory Negligence Liability for data loss is limited to the typical cost of restoration that would have occurred if backup copies had been routinely produced commensurate with risk. Apart from that, the User is responsible for preventing security problems with regard to its own systems and data, including the software hosted on the User's systems. The responsibility of the User also expressly includes protection against undesirable intruders, such as malware, viruses, spyware or Trojans.

This license agreement is subject to German law, with the exception of UN Convention on Contracts for the International Sale of Goods. Amendments and supplements to this agreement, including notice of the termination of this agreement, must be in written form to be legally effective.

Should one of the provisions of this agreement be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The provision concerned shall be replaced by an effective and enforceable provision which comes closest to the objectives pursued by the provision concerned. The same shall apply to any contractual omissions.

This license agreement is available in various language versions. In case of conflicts or ambiguities, the German language version has exclusive application.

ニュース Software Licence Agreement