Important Information
COMfortel M-730 - Instructions V01 06/2021
25
as set forth in more detail in clause 3, for the Customer's own internal business purposes and also for those of its Affiliated Com
-
panies. Third-party use or operation of the Software is permitted if done exclusively under the Customer's control and for its inter
-
nal business purposes, e.g. hosting, outsourcing. The Customer may reproduce the Software to the extent reasonable within the
scope of said purposes and, in particular, may make backup copies. All additional rights, in particular the right to distribute, trans
-
late, edit, modify or make the Software publicly available, remain with Auerswald or the third-party providers.
2.7 With the exception of Open Source Software, the Customer may not decompile or disassemble the Software, extract program
parts, reverse engineer or otherwise attempt to derive the source code from the object code. This shall not affect the Customer's
rights under Section 69d (2) and (3), 69e of the German Copyright Act (Urheberrechtsgesetz). In this case, the Customer must
first request Auerswald within a reasonable notice period in writing to furnish the information and documents necessary to estab
-
lish the contractual functionality or interoperability with other applications. The Customer will be entitled to reverse engineer or
decompile the software within the scope of the mandatory statutory requirements only after expiration of the period without con
-
tractual production of the functionality.
2.8 The Software may be rented out, leased, loaned, sublicensed or passed on or otherwise made available to third parties out
-
side the provisions of clauses 2.9 to 2.14 only with the prior written consent of Auerswald. Similarly, the Software may not be
reproduced either as a whole or in part. The cases expressly permitted in the Agreement or by law are excluded, e. g. backup
copies. Auerswald may decide freely whether to give its consent.
2.9 If the Customer is provided with installation media containing multiple Software products, the Customer may only use the
Software for which the Customer has acquired licenses. Unbundling or repackaging the Software for distribution or resale or the
associated redesign of Software is not permitted.
2.10 If the Customer has been granted permanent Licenses to the Software, resale of the Software and transfer of the Licenses
to it may be permitted only if the Software and Licenses are passed on in precisely the same scope and combination as acquired
by the Customer. The Software may be provided to the purchaser only as one and completely together with all associated mate
-
rials and Licenses or License Keys. Merely temporary transfer, e.g. renting out, is not permitted. Any merely partial transfer of
the Software to third parties or the transfer of the same Software to several third parties by splitting the Licenses is prohibited,
except in the cases expressly permitted by law.
2.11 In case of Software rented to the Customer, transfer or assignment of the rental agreement to third parties is excluded,
unless this has been stipulated individually with the respective renter, i.e. Auerswald or the Auerswald Partner.
2.12 The Customer will ensure and upon request of Auerswald will be able to demonstrate that
* the purchaser has undertaken to comply with the License Terms;
* the purchaser has been handed over the Software, the License Keys, the installation media and other materials delivered
together with the Software, e.g. pre-installed materials, as well as all backup copies, updates and earlier versions still remaining
with the Customer;
* the Customer does not retain any copies of the Software, the installation media, the License Keys or any other materials, includ
-
ing backup copies;
* the Customer notifies Auerswald directly, or via the respective Auerswald Partner, about the purchase and buyer, indicating the
relevant Software and Licence Keys, and
* the Customer has arranged with Auerswald, or via the respective Auerswald Partner, the transfer of the Software and License
Keys to the purchaser.
2.13 Upon transfer to the purchaser, all of the Customer's rights of use to the Software and the Licenses will expire. However, a
sale does not automatically lead to a transfer or assignment of guarantee or warranty claims or of any maintenance/care contract
that may exist between Auerswald and the Customer. If the Customer has purchased the Software from an Auerswald Partner,
it is the Customer's responsibility to make agreements with the Auerswald Partner regarding the transfer of any guarantee or
warranty claims that may exist against the Auerswald Partner or for maintenance contracts.
2.14 The Customer may make a reasonable number of backup copies of the Software. The Customer will not remove alphanu
-
meric identifiers, trademarks or copyright notices affixed to the Software product or to the installation media and will reproduce
the Software only without making any changes. The Customer will keep records of the whereabouts of all copies, and Auerswald
may inspect such copies upon request.
2.15 If the Software requires initialization, for example by importing a License Key, the Customer will initialize the Software within
a certain period of time as specified by Auerswald. The Customer is advised that the installation is technically complete only once
this has been done. The the required information as described in the installation sequence must be entered by the Customer for
installation. If the Software is operated in a virtualised environment and if such environment is changed, e.g. updated, or if the
hardware on which the Software is operated is changed, the Software may have to be reinitialized. If initialization is not completed
within the specified period, the Software may be blocked for further use. In such case, activation requires initialization which may
be requested from Auerswald or from the respective Auerswald Partner against proof of authorization. Individual arrangements
in the Agreements regarding acceptance and compensation of expenses will not be affected.
2.16 Any supplementary delivery of Software (e.g. Updates or upgrades) made available to the Customer as well as any License
extensions, e.g. additional Floating User Licenses, are an integral part of the respective licensed Software and governed by this
EULA, unless stipulated otherwise in a particular case.
2.17 The rights of use to previous versions generally expire upon installation of an Update or upgrade. Auerswald retains the right
to offer older versions of the Software on the website. In such case, the Customer will also be entitled to use the offered older
versions, albeit only one version at any one time (so-called "
Downgrade
"). This is not associated with an extension of other
Licenses, e.g. the number of floating users. The provision of older versions is voluntary and may be discontinued at any time.
Auerswald also retains the right to technically prevent downgrades. The Customer uses such older versions at its own risk. Any
warranty obligation on the part of Auerswald or performance obligation under a maintenance/service contract concluded with
Auerswald will apply to the respective current version only. Existing copies, including back-up copies, must either be demonstra
-
bly destroyed by the Customer or returned to Auerswald or to the Auerswald Partner, unless the Customer demonstrates that it
requires the older version to meet statutory or regulatory retention of accountability obligations and the Upgrade or migration ver
-
sion of the Software is not able to do so. In any case, the option of such retention ends once the Software is sold to a third party.
2.18 In cases, where the Customer has been granted rights of use for a limited period of time, Auerswald may terminate such
rights of use as a whole or in part for cause if the Customer is in significant breach of the provisions of the EULA , in particular in
respect of the scope of the Licence, thereby infringing the rights of Auerswald to the Software in such a way that Auerswald cannot
be reasonably expected to adhere to the granting of rights and if the Customer fails to remedy the violation within thirty (30) days
from receipt of a corresponding request by Auerswald. If the Customer has procured the Software through an Auerswald Partner,
the agreement made with such Auerswald Partner is decisive. Auerswald's right to prosecute infringement in court, including,
without limitation, by way of injunctive relief, remains unaffected. This also applies to Software provided on a permanent basis.
2.19 The provisions of this EULA apply accordingly to Firmware. However, Firmware may be used or passed on to third parties
only together with the hardware for which such Firmware was intended and approved by Auerswald.
2.20 This EULA also applies to Auerswald Software provided to the Customer in connection with the use of a SaaS offering of
Auerswald for installation on a Client. In this case, this EULA applies to such software, and the GTC SaaS apply to the Saas
offering of Auerswald. Such software is only intended for use with the associated SaaS offering from Auerswald and the Cus
-
tomer's rights of use under this EULA only refer to this, even if it should be technically possible to address another (SaaS) product
with it. Auerswald assumes no warranty for any such use in violation of this EULA, does not provide any maintenance/care ser
-
vices, will not indemnify the Customer in the event of an infringement caused by a combination with the external SaaS service,
and retains the right to demand from the Customer compensation for any damage or expenses caused to Auerswald by such use
by the Customer.
3. Third-party software and Open Source software
