General Business Terms and License Conditions of Paessler AG
The following Terms and Conditions can be downloaded and printed from
Paessler AG’s website: https://www.paessler.com/company/terms. Upon
request to agb@paessler.com, Paessler AG will provide you with a digital
or written version.
Information about Paessler AG:
Paessler AG
Bucher Str. 79a
D-90419 Nuremberg
Germany
E-mail: info@paessler.com
Fax: +49-911-93775-409
Telephone: +49-911-93775-0
Registration Court: Amtsgericht
Nuremberg, Registration number HRB 23757
VAT-ID: DE 217564187
Paessler AG operates a website under the domain of
https://www.paessler.com/ for commercial purposes. Downloadable software
is offered via the Internet.
A. General Terms
§ 1
Scope of Application
1. These Terms and Conditions are only
applicable to business with those customers, to whom Paessler AG is
offering or rendering goods or services. They are not applicable where
Paessler AG has placed an order or is purchasing goods or services from
a third party.
2. These Terms and Conditions shall only apply
to enterprises within the context of § 14 BGB (German Civil Code). If
the contracting party is a consumer within the context of § 13 BGB,
statutory consumer laws shall apply.
§ 2 Exclusive Validity
of these Terms and Conditions; Individual Agreements
Any
distribution of software and all services or goods in connection
therewith are being rendered exclusively on the basis of these Terms and
Conditions. Should the customer request differing or conflicting terms
and conditions, these shall only become binding on both parties once
confirmed in writing by both Paessler AG and the customer. Paessler AG
does not tacitly consent to such terms, even when not expressly
objecting to them. These Terms and Conditions are applicable for current
and future services and goods rendered by Paessler AG to customer, even
if Paessler AG does not expressly refer to them. By purchasing from
Paessler AG, the customer accepts these Terms and Conditions. Any terms
agreed separately by the customer and Paessler AG in writing (including
additional agreements, amendments and modifications) take priority over
these Terms and Conditions. A written contract or written confirmation
by Paessler AG is required to establish the content of such
agreements.
§ 3 Cancellation rights
In addition
to any statutory cancellation rights, Paessler AG grants a 30-day right
of return. If the customer is not satisfied with the software, Paessler
AG will, within 30 days of purchase, reimburse 100% of the purchase
price upon return (de-installation) of the software, regardless of the
reason. This 30-day right of return is granted only to customers who are
consumers (“end user”). It is not applicable, for example, to
resellers and/or distributors.
§ 4 Contractual agreement
The contract language is English. Any offer of Paessler AG on
the website is subject to change without prior notice. A formal contract
agreement and therefore a contractual obligation to provide goods and/or
services is entered into as soon as Paessler AG confirms acceptance of
the customer’s order in writing. The confirmation of order receipt is
not a confirmation of the order itself. Delivery of the software shall
generally be provided via download. In this case, the contract commences
on the date Paessler AG sends the contract-confirmation by e-mail along
with the download link and the license key to unlock the software. These
terms are also included in the contract confirmation.
§ 5
Value Added Tax
1. For delivery within Germany: the price
displayed in the invoice includes VAT.
2. For delivery within
the EU: if a VAT ID is provided, the prices do not include VAT. The
respective VAT shall be paid by the customer.
3. For delivery
outside of the EU: the prices shown on the invoice do not include VAT.
VAT is not applicable.
§ 6 Payment Terms
1. The
Payment is due in total on the date of receipt of the invoice.
2. Any cash-discount or reduction from recommended retail price is
only valid with written agreement from Paessler AG.
3. All
charges, expenses or fees associated with the payment shall be paid by
the buyer. Paessler AG must receive the full invoice amount.
§ 7 Limited Warranty, Limited Liability
The following
terms apply for NON-US CUSTOMERS:
A. Limited warranty
1. Paessler AG does not warrant that the software is compliant
with the customer’s requirements or the customer’s hardware or
software.
2. Although Paessler AG has created the software
with utmost diligence and expert knowledge, both parties acknowledge
that, with the current state of technology, it is not possible to create
100% defect-free software. The customer is therefore obliged to comply
with their duty to mitigate damage where possible and to comprehensively
backup data at appropriately regular intervals, before the initial
installation and before updates of the software and immediately when any
indication of defect occurs.
3. The agreed composition and
capabilities of the product are defined by the product specifications.
If product specifications are not provided, the composition of the
product shall be deemed to be of industry standard.
4.
Paessler is entitled, to a commercially acceptable extent, to deviate
from the agreed product capabilities. Paessler AG may provide
improvements to the software at any time.
5. Product
documentation will only be updated when significant changes are made to
the software and will be provided by download from Paessler AG’s
website.
6. Paessler AG is entitled to choose, at its own
discretion, if a defect shall be remedied by way of improvement of the
existing product or delivery of a new product.
7. The
customer is obliged to cooperate in remedying the defect, for example,
by downloading and installing an update.
8. To the best of
Paessler AG’s knowledge, the versions of the software provided do not
infringe on the intellectual property rights of a third party. The
customer shall immediately inform Paessler AG of any claims arising from
an alleged violation of such intellectual property rights. Paessler AG
shall have the sole right to defend any such claim, and, when requested,
customer shall provide reasonable support to Paessler AG’s defense.
9. If customer lodges a warranty claim against Paessler AG and
after investigation it is determined that there was no defect or
Paessler AG is not liable for the defect, the customer shall compensate
Paessler AG for all incurred expenses.
10. Paessler AG shall
be deemed to have failed in remediating a software defect if Paessler AG
fails to cure the problem after its second attempt to deliver a
solution. After such time, customer may at its own discretion either
reduce or withdraw from the contract of purchase. In such event, the
customer’s right to claim compensation for damages according to these
Terms and Conditions remains untouched.
11. The examination
and notification duties according to § 377 HGB (German Commercial Code)
are applicable. The customer cannot base a claim on detected defects if
customer has not given immediate notice of such defect to Paessler
AG.
12. The customer shall illustrate the error or defect as
precisely as possible to Paessler AG.
13. The customer shall
take measures supporting the identification of the defect and its cause,
to a reasonable extent.
B. Limited Liability
Paessler AG shall be liable for damages arising from personal injury
(culpable injury of life, body, health). This also applies for other
damages arising from willful misconduct or grossly negligent violation
of duties. Paessler AG is further liable for damages arising from a
negligent violation of an essential contractual duty and which are a
typical consequence with respect to this type of contract. The latter
liability is limited to the sum of three times the license fee. Paessler
AG’s liabilities for all other damages, which are not caused by
willful misconduct or gross negligence, are excluded. An essential
contractual duty is given, if its fulfilment forms a precondition for
the proper execution of the terms of the contract and in which
fulfilment the customer normally relies on legitimately. A liability
according to the “Produkthaftungsgesetz” (German Product Liability
Code) remains unaffected.
The following terms apply for
US-CUSTOMERS ONLY:
BEGIN of regulations concerning
US-customers only.
BEGIN of regulations governed by the Law
of Massachusetts.
These Terms and Conditions contain rights
and restrictions associated with the use of the software. The following
regulations concerning Limitation of Warranty and Limitation of
Liability shall be governed under and construed pursuant to the laws of
the Commonwealth of Massachusetts, USA without reference to choice of
law principles.
A. Limitation of Warranty
1.
Paessler AG warrants that it has the full power and authority to enter
into this agreement and to grant the licenses described in this
agreement.
2. Paessler AG warrants that for a period of six
months after the customer accepts the terms of this agreement, the
media, if any, on which the software is delivered, will be free from
defects in material and workmanship under normal use. If any media is
found to be defective during the warranty period, Paessler AG will
replace the defective media.
3. Paessler AG warrants that for
a period of two months after the customer accepts these Terms and
Conditions, the software will perform substantially as described in
specifications for the software, including any user manuals and
technical documentation. If a defect in the software causes the software
not to perform according to this warranty, Paessler AG will use
reasonable efforts to promptly correct such defects. If Paessler AG is
unable within a reasonable period of time to correct such defects,
customer may, at his option, and his sole remedy, terminate the license
or right to use the software and return the software or cease to use the
software, including all related documentation, to Paessler AG and
receive a full refund of any license fees paid for the software.
4. Limitations of Warranty. Paessler AG does not warrant that
the operation or availability of the software will be uninterrupted or
error free. Furthermore, Paessler AG does not warrant that the functions
contained in the software will meet customer‘s requirements.
5. Disclaimer. Software is provided „AS IS”, without a warranty of
any kind, except as set forth above. PAESSLER AG DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
B.
Limitation of Liability
PAESSLER AG WILL NOT BE LIABLE TO
CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING
UNDER THIS AGREEMENT. Paessler AG WILL NOT BE LIABLE FOR ANY AMOUNT OF
DAMAGES IN EXCESS OF (i) 5,000 USD OR (ii) THE CUMULATIVE LICENSE FEES
PAID OR PAYABLE UNDER THIS AGREEMENT, WHICHEVER IS GREATER. This
limitation will not apply to damages related to injuries to persons or
damage to tangible personal property resulting from the negligence or
willful acts of Paessler AG.
END of regulations concerning
US-customers only.
END of regulations governed by the Law of
Massachusetts.
§ 8 Limitation of Time
1. Subject
to subsection 3, Customer may not bring any claims against Paessler AG
arising from deficiency as to quality or title – no matter the legal
basis – one (1) year after the date such claim arises.
2.
Subject to subsection 3, Customer may not bring any claims against
Paessler AG for compensation for damages one (1) year after the date the
claim for damages arises, no matter the legal basis. Such limitation
also applies if the claim is not connected to a defect.
3.
The limitation of time set forth in subsections 1 and 2:
a)
does not apply if the damage was caused deliberately; and
b)
Does not apply to claims for compensation for damages of life, body or
health, claims arising of a culpable violation of essential contractual
duties or claims according to the Produkthaftungsgesetz (German Product
Liability Code).
B. License Conditions
§ 1 Scope
of Application
The License Conditions of section B
conclusively govern the right to use of the software of Paessler AG.
§ 2 Definitions
The following terms shall, in the
context of this agreement, have the following meanings:
Site:
means the territorially limited area (for example campus, premises) of
which the diameter does not exceed 6.21 miles (10 kilometers), and which
is used exclusively by the customer.
Customer: means the
contracting party licensing Paessler AG’s software;
User:
means a person using the software.
Failover Node: means a
Core Server, which is capable of taking master position in a Cluster,
when the Master Node is not available.
Master or Master Node:
means a Core Server, which is taking master position in a Cluster.
Cluster: means the combination of a Master Node and one or more
Failover Nodes to increase system availability.
Core Server:
means the central unit of a PRTG installation on which processing and
storing of monitoring-data, notifications, user administration, the
webserver, etc. are running.
Remote Probes: means probes on
externally located computers, which submit monitoring results to the
core server.
Reverse Engineering: means analyzing the object
code of the software with the aim of reproducing the source code of the
software.
Decompilation: means translating the unit code
backwards into a program code readable by a human.
Disassembling: means transforming binary encrypted computer language
code of an executable program into an assembler language (hardware
orientated programming language).
§ 3 License Grant / Right
to Use
Paessler AG grants to the customer a non-exclusive,
perpetual license to use the software up to the limitations determined
by the license purchased, on servers or computers owned or controlled by
the customer and under these License Conditions. The documentation will
be provided in electronic form. The delivery of the software will be
effected in object code. Paessler AG will not deliver source code.
1. “Commercial Edition”
The “Commercial
Edition” shall be used exclusively by the customer. The license shall
be effective only if the customer pays a fee therefor. Customer may not
share or transfer a license, for example by resale or lease, without the
prior written consent of Paessler AG. Paessler AG reserves the right to
seek damages for any breach of the above-mentioned restrictions.
a. Single User and Multi User License
The customer is
entitled to use the number of licenses purchased by customer and
identified on the order-confirmation. The customer may only install and
use the purchased number of licenses simultaneously (if Clustering
feature is applicable, then § 3 no. 3 applies in addition). If the
granted number of licenses is exceeded, customer shall notify Paessler
AG thereof immediately and further prevent additional unauthorized
installations by adequate technical or organizational measures. Should
this prove unpreventable, the customer shall purchase licenses from
Paessler AG for all additional installations.
b. Site
License
The software may only be installed within one (1)
site in one (1) country, but on any quantity of computers and may be
used by one or more users simultaneously. This limitation of use is
solely defined by the territory of the Site.
c. Corporate
License
“Corporate Country License”:
The
software may be installed as Core Server and Remote Probes on any
quantity of computers within one country and used by one or more Users
on one or more Sites within that country, if the customer owns and
operates all the computers for its commercial purposes.
“Corporate “n” Core Global License”:
The software
may be installed as Core Server and Remote Probes on “n” computers
worldwide and used by one or more Users on one or more Sites, if the
customer owns and operates all the computers for its commercial
purposes.
d. Usage for Managed Service Providers (MSP), MSP
License
The customer is not permitted to use the Core Servers
and/or Remote Probes of Corporate Licenses and the Unlimited Licenses as
computers operated for third parties (such as MSP) or used mainly by
third parties (such as cloud computing, hosting providers, etc.).
Paessler AG offers a special MSP license. This license may be
installed on any quantity of computers and used by one or more users on
one site. The customer is allowed to use the Core Servers and Remote
Probes of the MSP license as computers operated for third parties (such
as MSP) or used mainly by third parties (such as cloud computing,
hosting providers, etc.).
The customer shall not operate more
than a total of 25,000 sensors with one MSP license. Per one Core Server
a maximum of 5,000 sensors may be installed. Due to technical
limitations lower sensor limits may apply per core server if the
customer runs the Core Server on a virtual machine or in a cluster mode.
Please refer to Paessler’s System Requirements for PRTG Network
Monitor.
2. Freeware, Trial Edition & Special Edition
Paessler AG offers free-of-charge versions of the software with
limited operating time and/or limited features. No maintenance is
available for those versions. If maintenance is performed, it is
performed at the discretion of Paessler AG and does not constitute any
obligation for Paessler AG and may be terminated at any time. The
freeware and the trial edition may be installed and used on any number
of computers for private or business purposes at no charge. The freeware
and the trial edition may be shared with third persons (for example on
websites or ftp-servers), if the software is offered unaltered and free
of charge. Any offer of the freeware, the trial edition or special
edition for any payment, fees or similar arrangement (for example
chargeable download, magazine-CD) requires the prior written permission
of Paessler AG.
3. Clustering Feature
In addition
to the primary installation, single-user license keys may be installed
as one Failover Node connected to the primary installation, regardless
of the Failover Node’s geographical location. One additional license
key must be purchased to set up a 3- or 4-way Cluster. For a 5-way
Cluster a third license key must be purchased. License keys of Site and
Corporate licenses may be configured as single instances or as single or
multiple Cluster Nodes, according to the geographical and legal
limitations set by the respective license. In addition, such a license
key may be installed on no more than one Failover Node connected to one
of these installations regardless of the Failover Node’s geographical
location. For any two additional Cluster Nodes outside the geographical
and legal limitations set by the respective license, additional
single-user license keys must be purchased.
4. PRTG Cloud
Some parts of the software may be available for access and use
as services available from the PRTG Cloud. These hosted services provide
notifications (for example via push technology) and monitoring. When a
user activates such functionality either in the app or in the PRTG
interface the PRTG Core Server connects to the PRTG Cloud without
further notice. In order to deliver notifications to the target
device(s), Paessler AG stores data and transmits it to third parties
(for example to Google, Apple, or Microsoft for push notifications). In
order to perform monitoring tasks (for example Ping, http) Paessler AG
stores hosts and URLs. Paessler AG does not offer warranty that the
access and use of the software as a service will be uninterrupted or
available at all times. The customer shall comply with all terms and
conditions of the Amazon Acceptable Use Policy
(http://aws.amazon.com/de/aup/), as such policy is then in effect (the
“AUP”). Without limiting the terms and conditions of such AUP, the
customer agrees that it shall only use the cloud infrastructure to send
notifications to its own devices and to monitor its own website and
infrastructure and the customer shall not send spam or notifications to
any third party nor shall they monitor third party or illegal websites.
So-doing would represent a formal breach of contract. Paessler AG
therefore reserves the right to compensation for any damages,
liabilities, and costs incurred as a result of customer’s breach of
any of the above-mentioned clauses.
§ 4 Software Activation
and Updates
1. Some software products of Paessler AG need to
be activated for use via internet or e-mail. Without activation the
customer cannot use the software.
2. By activation of the
software on a computer, a unique ID of that computer is sent to Paessler
AG and matches the software to that computer. This process prevents
multiple use of the software, contravening our licensing terms.
Activation does not transfer any personal data enabling the
identification of the computer user or the computer.
3. The
acquired data is solely used for activation purposes.
4.
Changes in the hardware or software of the computer do not affect a
previously successful activation.
5. If a successfully
activated installation of the software is moved to another computer a
new activation for the new computer is necessary.
6. Software
products from Paessler AG connect periodically to Paessler AG servers,
to automatically check for new versions and/or important security
updates of the software. As part of this connection, statistical
information about the PRTG installation (for example, the number of
sensors in use) will be transferred to Paessler AG.
§ 5
Scope of Use
1. Acts of Use
The right of use is
limited to the following acts within the scope of contractual use:
* Installation of the software on the intended computer(s) and the
production of a security backup;
* security backups on moveable
data storage mediums (such as CD, DVD), provided such backups are marked
with an indication of Paessler AG’s intellectual property right and
are not transferable;
* loading of the software into the
computer’s RAM and its processing;
* necessary measures in terms
of error-correction according to § 69d sec. 1 UrhG (German Copyright
Code);
* Decompilation to achieve interoperability according to §
69e sec. 1 UrhG; and
* Production of a backup of the computer the
software is installed on (image).
2. Usage Protection
The software is protected by a technical device intended to
block any unlawful use or replication. The unlocking of this device by
Paessler AG is a prerequisite for the operation of the software. The
customer will be provided by Paessler AG with the license activation key
during the normal course of a contractual purchase.
§ 6
Intellectual Property Rights
1. The software and its manual
are copyrighted. All related intellectual property rights belong solely
to Paessler AG.
2. The customer may not, without the written
permission of Paessler AG, use the software and its operational
instructions outside of the authorized usage outlined in § 5, for
example customer is not permitted to make alterations, to transfer to
another programming language, to copy or replicate the software (for
example by additional installations), re-design, circulate, share or –
pursuant to § 3 No. 1 - grant access to third persons to the software,
even if partially or temporarily. Reverse engineering, decompilation or
disassembling are also strictly prohibited.
§ 7 Damages
In case of usage of the software in breach of these
restrictions, the customer agrees to pay Paessler all associated damages
originating from the misuse.
C. Maintenance
The
license fee for the commercial editions of the software includes 12
months of maintenance. When purchasing the license, maintenance for a
longer period may also be acquired.
Maintenance reflects the
upkeep of the software determined by the license type “commercial
edition” as displayed in the order confirmation.
§ 1
Maintenance Services
During the maintenance period, the
customer is entitled to download the latest version of the purchased
“commercial edition” and to re-request delivery of his license key
at any time.
During the maintenance period, the customer may
also receive technical support via the support ticket system of Paessler
AG.
§ 2 Duration
The maintenance period is for 12
months, if not agreed otherwise, and may be extended.
§ 3
Beginning of Duration
The initial maintenance period starts
with the dispatch of the contract confirmation along with the download
link and the license key for the software.
§ 4 Extension of
the Maintenance
The maintenance period can be extended at any
time. The maintenance period is always calculated using the sum of the
maintenance months since the original software purchase date. If the
extension is being effected after expiration of the previous maintenance
period, the new maintenance period begins retroactively and seamlessly
from the day on which the previous maintenance expired, even though this
may result in the forfeiture of a portion of the new maintenance
period.
§ 5 Availability
Paessler AG does not
guarantee the permanent availability of its website, downloads
(including updates, instruction-manuals, freeware, etc.), or support
-systems. The customer is obliged to protect its installation files and
license keys, as they are prerequisites for any reinstallation.
D. Miscellaneous
§ 1 Data Protection
1.
Paessler AG complies with the then effective data protection regulations
according to the BDSG (German Data Protection Act).
2. The
customer shall give accurate and complete information with regard to the
person and to the company where necessary during the fulfillment of the
contract. If there are changes to personal data relevant to the
contract, the customer shall inform Paessler AG immediately. Additional
costs incurred by Paessler AG due to wrong or uncorrected data
information (e.g. re-delivery, address inquiry) are for the account and
shall be borne by the customer.
3. The personal data acquired
by Paessler AG shall be used to compile and carry out purchase and sales
orders as well as for invoices.
4. Upon request, the customer
is entitled to be informed of its personal data acquired by Paessler AG
free of charge.
5. The customer is entitled to request
correction, deletion or blocking of its personal data acquired by
Paessler AG.
6. The customer is entitled to formally request
Paessler AG refrains from sending product related information at any
time.
§ 2 Compensation
Any compensation amounts
due by customer to Paessler AG are only permitted if the customer’s
claim is undisputed and established by a legally binding court
decision.
§ 3 Place of Performance and Court of
Jurisdiction
1. The place of performance of this contract is
Nuremberg, Germany.
2. Exclusive jurisdiction for all
disputes arising out of this contract or in connection with this
contract shall be, as far as legally enforceable, the relevant court of
Nuremberg, Germany. Paessler AG shall be entitled to file a suit or
commence other legal measures at the customer’s general place of
jurisdiction.
§ 4 Choice of Law
Any dispute
arising out of the contract or in connection with the contract herewith
shall be exclusively governed by the Laws of the Federal Republic of
Germany. The CISG and the International Civil Law shall not apply.
§ 5 Severability Clause
Should individual provisions
of these Terms and Conditions be or become partly or wholly void, the
remaining conditions shall remain in effect.
Last
modified: October 6th 2015