Software License Agreement

for the use of the NetSetMan Software

1. The subject matter of this software license agreement (hereinafter “License Agreement”) is the grant of use and exploitation rights in the NetSetMan software by NetSetMan GmbH, represented by its director Ilja Herlein, An der Raumfabrik 31b, 76227 Karlsruhe, Germany (hereinafter “Licensor”) to the Licensee.
   
2. This License Agreement shall apply both for the transfer free of charge of the Software as a non-commercial Freeware Version and also for the acquisition on payment of a fee of the commercial Full Version NetSetMan Pro (hereinafter collectively “Software”). Compared to the full version, the freeware version of the software has a limited range of functions and may only be used for non-commercial purposes, i.e. in particular not at work and on laptops used for professional purposes (see in detail § 6 para. 3 below). Provisions of this License Agreement relating either only to the Freeware Version or only to the Full Version of the Software will be appropriately identified hereinafter.
   
3. The Software shall be provided to the Licensee only by download from the Internet for continuous use under a purchase contract (Full Version) or a donation contract (Freeware Version). The acquisition and use of the Software by the Licensee shall be exclusively on the basis of this License Agreement. The Licensee’s general terms and conditions shall not become part of the agreement even where the Licensor has not expressly rejected them.
   

1. The description of the Software on the NetSetMan Website (www.netsetman.com) does not constitute a legally binding offer by the Licensor, but only a non-binding invitation to the Licensee to make an offer. When the Licensee completes his/her order by clicking on the “Purchase” button, the Licensee makes a binding offer for the conclusion of a purchase contract (Full Version) for the acquisition of the Software. Prior to the completion of the order, the Licensee can check his/her order details once more for input errors and make corrections or abandon the order process as appropriate.
   
2. The Licensor will confirm the receipt of the Licensee’s order by sending an automatic confirmation of receipt by email. With this confirmation email the Licensor also states acceptance of the Licensee’s offer so that on receipt of the confirmation email by the Licensee a binding purchase contract comes into being. The confirmation email also contains, in addition to the Licensee’s order details and information concerning the payment procedure, this License Agreement as (printable) attachment. After receipt of the full license fee into the Licensor’s bank account the Licensee shall receive a further email with directions for the download of the Software and the license details.
   
3. The Licensee’s individual order details are stored by the Licensor. The Licensee can retrieve these order details after completion of the order process in the NetSetMan Website login area. He/she can also print the order details during the execution of the order and will also have these sent to him/her again with the automatic confirmation of receipt email. The current version of this License Agreement may also be retrieved and printed from the NetSetMan Website at any time.
   

1. Resellers may acquire the Software directly for use by their customers as Licensees (agreement for benefit of third parties). In this case, the reseller is not entitled to an own right of use of the Software. In all other respects, the terms and conditions of this license agreement shall apply to the reseller accordingly.
   
2. The reseller acts in his own name and on his own account when purchasing and reselling the Software. The reseller is not authorized to represent the Licensor in legal transactions or to make statements on behalf of the Licensor.
   
3. The reseller shall not give to the licensee any assurances concerning the properties of the Software (e.g. concerning its range of functions) or concerning the extent of the user rights that conflict with this License Agreement and/or documentation, product descriptions or promotional materials of the Licensor. The reseller shall indemnify the Licensor against all losses and other detriment arising from non-compliance with this obligation.
   
4. The reseller shall refer the Licensee clearly to the license conditions provided in this License Agreement and draw their attention to the use of the Software being conditional upon the Licensee agreeing directly with the Licensor to the application of the license conditions. If the reseller learns of a breach on the part of the Licensee of the license conditions (e.g. by use of the Freeware version of the Software for commercial purposes) it shall inform the Licensor thereof without delay. On request and at the election of the Licensor the reseller shall assign its own (contractual) claims against the Licensee based on such breach to the Licensor.
   

1. The Licensee will receive the Software in binary code (executable version) together with integrated user documentation in German and English; versions of the user documentation in other languages are available but not tested for accuracy by the Licensor. There is no right to obtain the source code. The Licensee is responsible for the installation of the Software on his/her system.
   
2. Delivery of the Software together with integrated user documentation is only by download from the Internet. The Licensor will make the Software available to the Licensee on the NetSetMan Website for retrieval for this purpose. The License Agreement is fulfilled as soon as the Licensee has received the license file with his individual license details (in particular name, email address, number of licenses, optional expiration date, digital signature) and the Software is completely stored on the Licensee’s computer. Using the license data transferred the Licensee can activate the Software on his/her system following download. If there are strong indications that the scope of the license has been exceeded (e.g. based on the number of licensed systems), the Licensor may temporarily refuse to activate the Software until the Licensee has clarified the situation.
   
3. The Licensee is entitled to download the latest version of the Software within his purchased major version (e.g. in major version 5 the versions 5.1.0 or 5.8.3) without any additional charge from the login area on the NetSetMan Website. If a new major version is released within one year after conclusion of a contract for the use of the full version, the Licensee is entitled to upgrade to the new major version free of charge. The provision of updates or upgrades free of charge shall not lead to an extension of the limitation periods for warranty claims. The provision of free updates represents a voluntary service on the part of the Licensor and can therefore be discontinued at any time and without reason.
   
4. The system requirements at the Licensee necessary for orderly usage of the Software are displayed on the NetSetMan Website. The Licensee alone is responsible for satisfying these system requirements. The Licensor points out that it is not possible to trial and test the Software for compatibility and operability in all conceivable system environments. Before acquiring the Full Version the Licensee may test its compatibility with his/her own hardware and software using the Freeware Version of the Software. The Licensor gives no warranty for the future release capability of the Software, e.g. in the event of a change of hardware or operating system by the Licensee.
   

1. All copyright and other property rights in the Software (including all new versions) are reserved exclusively to the Licensor in relation to the Licensee. The Licensee receives, conditional upon the download of the Software and – where the commercial Full Version is provided – on payment of the full license fee, a non-exclusive right to use the Software subject to the following conditions.
   
2. The Licensor grants the Licensee a non-exclusive, non-assignable and non-sublicensable, temporally and geographically unlimited right and as to its content limited to a specific number of installations to use the Software exclusively for his/her own purposes. The Licensee may copy the Software, where the particular copy is necessary for the use of the Software. Necessary copying includes in particular the installation of the Software on the agreed number of systems and loading on the random access memory.
   
3. Under this right the Freeware Version of the Software may be used exclusively for non-commercial purposes, i.e. in particular not for work, on a work laptop or on other computers to the extent that these are also used for work. As a basic rule the Software may only be used as Freeware Version where no remunerated work time is saved using it. For use for commercial purposes the Licensee must acquire the Full Version NetSetMan Pro.
   
4. With the purchase of a license of the Full Version the Licensee is permitted to install the Software on the agreed number of own systems and to use it by any number of users on these systems. In this context there is no distinction between physical and virtual systems. The Licensee is permitted to transfer the Software from one own system to another, provided the agreed number of installations is not exceeded. The Licensee can extend the coverage of the license at any time by purchasing additional licenses. Private customers are furthermore allowed to install their Single-User-License on two additional, own systems and use it there exclusively in person.
   
5. In particular – in so far as this License Agreement or mandatory statutory provisions do not permit it – the Licensee may not either modify or redesign the Software or loan or hire it out to third parties. Further he/she may not use it for the benefit of third parties or make it accessible to third parties within a network or over the Internet.
   
6. The Licensee may produce the necessary backup copies of the Software. A backup copy on a movable data carrier must be identified as such and endorsed with a copyright notice. The Licensee may not alter or remove copyright notices within the Software or other distinguishing marks for the purpose of the identification of the program.
   
7. If there are strong indications of commercial use of the Freeware Version, use of the Full Version on more than the agreed number of systems, or any other type of license violation, the Licensor may restrict or prevent the Licensee's use of the Software by means of suitable technical measures and block the Licensee's login area until the matter has been clarified. If the Licensee is an entrepreneur within the meaning of section 14 BGB (German Civil Code), the Licensor shall be entitled to verify the Licensee's compliance with the agreed scope of use by means of an on-site audit at the Licensee's business premises or to have such compliance verified by a third party who is obliged to maintain secrecy. The audit shall take place during the normal business hours of the Licensee in a manner that does not unreasonably interfere with the business activities of the Licensee. Licensor undertakes to keep secret all information obtained during the inspection that does not concern the Software. The costs of the audit shall be borne by Licensee if the audit should reveal any use of the Software not in accordance with the License Agreement.
   
8. In the event of a license violation, the Licensor may invoice the Licensee for a fee applicable to the unauthorized use in accordance with the Licensee’s current price list (and also retrospectively). In addition where the Licensee culpably exceeds the granted use rights and is an undertaking within the meaning of section 14 BGB, a contractual penalty of 10 times the amount of the applicable license fee shall be payable in respect of the excess use of the Software. In particularly serious cases, e.g. a substantial or intentional license violation, the contractual penalty shall be at least EUR 10,000. The right to claim damages resulting from the unauthorized use is reserved to the Licensor. A paid penalty is taken into account in a claim for damages.
   

1. The Freeware Version of the Software is licensed without charge. After acquiring a Freeware Version the Licensee can change at any time to a Full Version in return for payment; then the contractual provisions for the purchase of the Full Version of the Software shall apply exclusively.
   
2. The Licensor licenses the Full Version of the Software to the Licensee in return for payment of a one-off license fee in the sum shown on the NetSetMan Website at the time of the order. The license fee will be invoiced to the Licensee immediately on completing his/her order and is payable immediately and without any deductions.
   

1. With regard to the agreed quality of the Freeware Version of the Software, it must be taken into account that it has only a limited range of functions compared to the Full Version and is not subject to the same quality controls as the Full Version. The Licensor gives no warranty in this respect for minor defects of the Freeware Version. In the case of updates and/or upgrades to the Software any possible claims on the part of the Licensee in respect of defects are limited to the respective innovations to the updates or upgrades compared with the present version of the Software.
   
2. In addition the Licensor warrants that the Software is in accordance with the description on the NetSetMan Website and in the user documentation and that the use of the Software in accordance with the License Agreement will not infringe the rights of third parties. Under the warranty obligations “defects” are exclusively reproducible errors caused by deficiencies in the quality of the Software. Accordingly a functional impairment is not a defect if it arises from a change in the operating system, from operating errors or from other causes within the scope of the Licensee’s responsibility. Liability for defects is also conditional on the Licensee not altering the Software or using it other than in accordance with the contractual requirements, unless the Licensee proves that the defect is not connected to such use or alteration.
   
3. Material defects must be evidenced by a verifiable description of the error symptoms, where possible, and notice thereof must be given in writing by the Licensee without delay. Any statutory duties of the Licensee to carry out checks or report defects remain unaffected.
   
4. In the event of material defects the Licensor can in the first instance rectify the defect. At the discretion of the Licensor this will be by eliminating the defect, by providing a new program version or by demonstrating to the Licensee reasonable options for circumventing the effects of the defect. If a material defect does not adversely affect the functionality of the Software or only has insignificant effects, the Licensor may cure the defect by delivering a new version in the course of its general release plan. If there are defects in title, the Licensor will procure for the Licensee a legally sound right to use the Software or will exchange the Software for an appropriate equivalent that satisfies the contractual requirements, where such an exchange is reasonable for the Licensee.
   
5. If the rectification finally fails, the Licensee can at his/her discretion reduce the license fees or withdraw from the contract. Claims for compensation and reimbursement of wasted expenditure are covered by § 10 of this License Agreement.
   

1. The Licensor shall only be liable for damages arising as a consequence of use of the Freeware Version of the Software in the event of willful intent or gross negligence.
   
2. Further, the Licensor shall pay compensation and reimburse wasted expenditure regardless of the legal grounds (e.g. contractual, in tort), only in the following amounts:
   
• in the event of willful intent, gross negligence and where a guarantee [Garantie] has been given in the full sum;
• in all other cases only in the event of a breach of a substantial contractual obligation, and then to compensate for typical and foreseeable damages, but limited per claim and in total for all claims in one calendar year together to 10 times the paid license fee, but to a maximum sum of EUR 5,000.00. Substantial contractual obligations in this sense are such obligations as are indispensable for the attainment of the purpose of the contract and the performance of which the Licensee may therefore regularly rely on.

3. Liability for data loss is limited – other than in cases of willful intent and gross negligence – to the typical expenses of recovery arising from restoration of data from backups made by the Licensee at regular intervals proportionate to the risk involved.
   
4. Statutory liability for personal injury and in accordance with the German Product Liability Act [Produkthaftungsgesetz] is not affected by the foregoing provisions.
   

1. The Licensor shall store and process the personal data of the Licensee accordingly only to the extent necessary for the execution and performance of the License Agreement, or where legitimate under statutory provisions or to the extent that the Licensee has given his/her consent to the handling of data. In addition to the provisions of this § 11 the Licensor’s then-current Data Privacy Statement as retrievable on the NetSetMan Website shall apply supplementally.
   
2. To validate a license, the following data is automatically transmitted to the Licensor's server (if an Internet connection is available): the license file with the license data of the Licensee, the computer name and the MAC addresses of the local network adapters; in addition the information gathered automatically in the course of every Internet query (IP address, timestamp) are available to the Licensor. The Licensor shall use the data transferred exclusively for the purpose of identifying and preventing misuse of licenses (e.g. to prevent the use of a license where the underlying contract has previously been canceled owing to revocation by the Licensee). A transfer of the above mentioned data takes place in particular during the initial license activation after installation, but can be repeated at regular intervals, in order to check compliance with the license conditions and the scope of the license (number of users or systems). Apart from that no other data shall be transferred to the Licensor.
   
3. In order to inform the Licensee about new software versions (with bug fixes and new features), update checks can be performed regularly. In addition to the data described in the previous paragraph, the following information and data will be transmitted to the web server: an anonymous inquiry ID (to protect against misuse), the Licensee’s current Software version (to identify the updates to be installed), the version of the operating system (for update information specific to the operating system) and the product language (for language specific update information).
   
4. The access details (email address and password) to the login area of the NetSetMan Website must be kept secret by the Licensee, therefore must not be disclosed to third parties and are to be protected from access by third parties. If the Licensee has reason to suspect that a third party may have obtained his/her access details without authority, he/she will inform the Licensor without delay and change his/her access details or have the Licensor change them. In addition the Licensor may, in this event or where the Licensor has grounds for suspecting misuse of the Licensee’s access details, temporarily suspend the Licensee’s access. The Licensee must be re-granted use of his/her access as soon as the suspicion of misuse of his/her access details is dispelled and the access details are changed.
   

1. The License Agreement may be concluded in German or English as well as in any other language offered on the NetSetMan Website; in the event of inconsistencies the German version takes precedence.
   
2. If a provision of this License Agreement is or becomes invalid or unenforceable or if this License Agreement is incomplete, the remainder of the contractual relationship shall not be affected thereby.
   
3. If the Licensee breaches the license conditions of this License Agreement other than in an immaterial manner, the Licensor may – in addition to other rights which remain unaffected – terminate the License Agreement for good cause with immediate effect.
   
4. Exclusively German law shall apply to this License Agreement; the UN Convention on the International Sale of Goods shall be excluded.
   
5. Jurisdiction for all disputes in connection with this License Agreement is Karlsruhe, if the Licensee is a businessperson or equates with such or where he/she has their establishment or domicile abroad.