End user agreement for TurboDB for VCL
Issue: March 1st, 2010
This is a legal agreement between you (‘customer') and dataweb GmbH, Germany (‘dataweb').
By opening the sealed package, by clicking the "I Agree" button during installation, by signing and sending in the registration card or by filling out the respective online form, you agree to be bound by terms of this agreement. Please read carefully! If you do not agree to the terms of this agreement, you may not open this envelope respectively continue with the installation! In this case you should, however, promptly return the complete package and all accompanying items (including 'online' and written materials and binders) to your place of purchase, for a full refund.
IT IS IN YOUR BEST INTEREST TO PRODUCE BACKUP COPIES REGULARLY IN ORDER TO AVOID EXTENSIVE DAMAGE DUE TO THE LOSS OF DATA! PLEASE ALSO INCLUDE THE ORIGINAL SOFTWARE IN THE INITIAL BACKUP AND KEEP THIS BACKUP IN A SAFE PLACE together with the product license certificate.
§1 Product Capability and Affirmation
Specifications given in brochures, advertisements, documentation and any other written notices are descriptive only and do not constitute any guarantees regarding the condition of the products. Guarantees regarding the condition of products require an explicit, written form. This applies equally to any indication of price or the release of add-ons and extensions. Technical data, specifications and functional design specifications in the software product descriptions do not constitute guarantees regarding the condition of the products, unless this was expressively confirmed as such by dataweb.
§2 Grant of License
1. The customer may use dataweb software products (‘software') and documentation solely on the basis of a license granted by dataweb.
2. With this software license dataweb grants the customer an individual and personal, nonexclusive, and only by the consent of dataweb, transferable right to use the licensed software. This right does not include the right to under-license. In the case that the customer is a legal entity, dataweb grants the right to designate one individual within the organization, to have the sole right to use the software, in the manner provided in this license agreement.
3. Being that this is a user dependent, personal software license, any customer who wants the software to be used by several employees has to purchase the number of software programs that correspond with the number of users. The exception being that the written offer and/or the confirmation of order determines the number of users that are licensed to use the product on all CPUs in a network or as users of alone standing CPUs. The customer may not exceed the determined number of users at any time.
4. dataweb agrees to the use of another system, if it replaces the original systemused, as long as the identical version of the licensed software can be used on the new system. Specifics and details require a written agreement. If the system is switched, the software is to be deleted on the former system. The simultaneous installation, storage, or use on more than one system is inadmissible.
5. dataweb agrees to the further sale, renting, or giving of the software, only when the third party also agrees to the terms of the license agreement. In the case that a transfer occurs, the customer must either give the new user all available copies or destroy the copies. As a result of transferring the product through a sale or gift, the old user loses the right to use the program. In the case that the software is transferred in the form of loaning, renting or leasing, the old user loses his right to use the product. Since this cannot be generally ensured, transferring the software in the form of loaning, renting or leasing is not allowed as long as dataweb has not agreed to the transfer. dataweb must not agree to the transfer, unless the customer can prove that dataweb has acted dishonestly. In this case, the customer is obligated to inform dataweb of the name and complete address of the new user.
6. The software is provided in the form of an object code. The provision of technical program documentation, especially source codes, is not obligatory and is not a part of the provision, except when the user documentation is governed differently (development tools). The right to examine these records is not given. The customer may not use any procedure in order to reproduce source programs or parts of source programs, or to request information on the conception or construction of the software.
7. The software may be copied or multiplied only as often as necessary for use on the licensed system and for the purpose of backup or archive copies. A backup copy is to be labeled as belonging to the software. Further duplication, which also includes the reproduction of the manual or parts of it, is not permitted. Additional copies of the manual are to be purchased from dataweb. The documents provided, including manufactured copies, are to be destroyed, without special request, at the end of use, as long as the customer is not forced by law to keep them.
8. The use of the licensed software within a network, or a similar processing system is not permitted if the ability to simultaneously use the software is achieved. If the customer wants to use the program within a network, simultaneous multiple usages have to be guarded against, through security measures, except if the written offer and/or the confirmation of order, according to § 2.3 imply a different agreement.
9. As long as the provided data carrier contains software, which was not included in the license given to the customer, the customer may use the software only if a separate license has been granted.
10. The customer is to hold all software information, as well as the applied methods and procedures confidential. He/she is obliged to guard the provided software and documentation against knowledge of or use by a third party. As long as the software is not a programming tool, the customer is obliged not to use any part of the software, procedures, or ideas, directly or indirectly, for the creation of another software product. In the case of a programming tool, the aforementioned limitations are only cancelled for the purposes listed in the product description. A change to the licensed software requires an explicit written agreement from dataweb.
11. dataweb, and dataweb alone reserves all rights, especially copyrights, for the provided software as well as the documentation, as long as this is not explicitly marked differently.
12. Software licenses are granted for an indefinite amount of time, and can only be terminated, for an important reason, by dataweb. It is considered in particular to be an important reason, when the customer does not meet contract obligations or even after continued warning, has not paid overdue bills within 10 days after receiving the warning. Termination by dataweb is relevant in regards to all versions of the software supplied to the customer, including reproduced copies. Licenses may only be used after full payment has been received.
13. A given software license entitles solely the use of the licensed version.
14. dataweb notes, that customers who violate copyright laws, are liable for all damages that occur as a result of these copyright law violations.
15. In some cases dataweb offers updates or upgrades for the product for special prices. If using an update or upgrade, the old license is not valid any more.
16. For license security measures, various protective mechanisms may be part of the software. Development licenses that are used for development purposes within a network may send an internal message to other stations in the network.
17. If the contract is terminated, the customer is obligated to destroy the original software copy, including all copies made (even those where changes may have been made), as well as all written documents. Written confirmation that this has been carried out is to reach dataweb within 14 days of termination.
18. If multiple developers are working on a product / project in which the software is used, each developer of the product / project is in need of a license.
19. The customer may not allow his/her developers to use multiple licenses within the same product / project without ensuring that all licenses are of the same type. The parallel use of the Professional and Standard Editions within the same product / project is therefore not authorized.
§3 Further Distributable Components
1. Notwithstanding § 2 dataweb guarantees the customer the right, to use and modify the source code version of such software components, which are identified in the written or electronic documentation as a sample program. The customer does however not have the right to pass on the sample program or a modified version of the sample program that is in source code form.
2. Notwithstanding § 2 dataweb guarantees its customers the non-exclusive right, to reproduce as well as further distribute the object code version of any part, in every software that is marked as a further distributable component or run-time module in the software's written and electronic documentation.
3. The following specifically applies to the development tool TurboDB: The customer is not permitted to develop a program or module specifically focused on or just created for database management (for example: database engine, database server etc). If desired, an OEM version is usually possible. Please contact the dataweb sales department.
4. The customer is not permitted to distribute the object code of further distributable components/run-time modules, as part of a product, which could be used for software development. The same applies, for example, for the capsulation of runtime modules in own run-time modules (source code or compiled form like a DLL or an EXE file), which would, for example, give other developers access. § 2(3) applies accordingly. If desired, an addendum to the license agreement may be possible. Please contact the dataweb sales department.
5. dataweb guarantees the customer the right to further distribute, license-free, the further distributable components/run-time modules, under the following conditions:
(a) The customer may only sell the runtime module together with, and as a part of his/her software product.
(b) The customer may not use dataweb's name, logo, trademarks or any other distinguishing characteristics belonging to dataweb for marketing purposes.
(c) The customer includes the complete dataweb software copyright notice (in the form stated in the corresponding information file) in his/her product wherever the copyright of the software appears (program and packaging). The copyright must at least be included in the about dialog of the software.
(d) The customer provides the end-user with support that is necessary in regards to program parts, which are based on the software.
(e) The customer agrees to indemnify and hold dataweb harmless and defend dataweb in conjunction with all claims and legal arguments, including the costs of lawyers, that occur as a result of the use or further distribution of its software product.
(f) The customer may not allow his/her customers the further distribution of further distributable components/run-time modules.
§4 Software Product Warranty
1. dataweb makes every effort through the implementation of quality assurance measures to keep software free of defects, but points out that with current technology it is not possible to guarantee that software is completely free of defects.
2. If the customer is a contractor, dataweb may initially fulfil the warranty by remedying the defect or provide a replacement delivery.
3. If the customer is a consumer, he/she initially has the choice between having dataweb remedy the defect or making a replacement delivery. However, dataweb is entitled to refuse the selected option if this is only possible at inappropriate costs, if a follow-up product is available that no longer has this defect and if this type of retrospective fulfilment is not connected with any substantial disadvantages for the customer.
4. If attempts to remedy the defect - which dataweb may attempt twice - fail, or if dataweb does not offer a program version free of defects, the customer has the right to withdraw from the contract or reduce the purchase price to an appropriate extent (abatement of purchase price).
5. However, in case of a minor breach of contract - especially in case of slight - defects, the customer is not entitled to withdraw from the contract.
6. If the customer decides to withdraw from the contract due to a defect of product or title after the attempt to remedy this has failed, he/she is not entitled to any compensation because of the defect.
7. If the customer is a contractor, public statements, advertising or promotion activities on behalf of dataweb do not constitute any contractual statement regarding the condition of the product.
8. The customer does not receive any guarantees from dataweb in a legal sense unless this was agreed in writing.
9. The warranty is void for any programs or parts of programs that were modified or extended by the customer, unless the customer can furnish proof to dataweb that such modifications or extensions are not the cause of the defect. The warranty claim is also void in case of defects, suspensions, interruptions and damages that are a consequence of incorrect operation, hardware and operating system failures, noncompliance with data security regulations or other processes outside of dataweb's responsibility, or if the customer denies dataweb the opportunity to investigate the cause of the defect.
10. The period of limitation for contractors is 1 year as of the receipt of the goods. For consumers, this period is 2 years as of the receipt of the goods.
11. If the investigation of a notice of defects establishes that there is no warranty case or that the product was returned incomplete, a cost of EUR 40 shall be levied unless the customer proves that no or fewer expenses were incurred.
§6 Notice of Defects
If the customer is a contractor, he/she shall immediately check the product for completeness and quality upon receipt. Evident defects must be communicated in writing to dataweb within 14 days as of the receipt of product; otherwise the assertion of the warranty claim is excluded. The dispatch of the notice in due time is sufficient to adhere to the limitation period.
1. In case of a slightly negligent breach of obligations, dataweb's liability is limited to the foreseeable, typical and direct average damage depending on the type of product. This also applies in case of slightly negligent breaches of obligations on behalf of dataweb's legal representatives or vicarious agents. This does not apply for damages caused by delay.
2. dataweb is not liable to contractors in case of a slight breach of insignificant contractual obligations.
3. Claims for compensation on behalf of a customer due to a defect expire after a period of 1 year as of the delivery of the product. This does not apply in case of gross negligence or fraud on behalf of dataweb.
4. dataweb is liable for the absence of guarantees to the extent of the scope of the guarantees.
§8 Product Changes
dataweb may make product changes that don't effect general functional capability.
§9 Other Agreements
1. Place of performance is Passau, Germany.
2. If the customer is merchant according to the German Book of Trade Law (Handelsgesetzbuch), a legal entity of public law or legal special funds, it is agreed that any legal actions arising from this or in connection with this contract will be settled at dataweb's address of record. This also applies if the customer does not have a general place of jurisdiction in Germany or if his place of residence or usual abode is unknown at the time the proceedings are brought forth.
3. This contract is subject to the laws of the Federal Republic of Germany. The UN Sales Laws are excluded.
4. Any subsequent additions or changes to contracts require the written form. This also applies to a waiver of the written form requirement.