Software Licence Agreement
Caixa Postal 411M
The Licenser is a software developer and has programmed a new integrated development environment (IDE) for software which is enhanced and distributed by the Licensee. The GAMS Development Corporation software products expressly shall not form part of the subject of this Contract. The Licensee must purchase these separately.
Section 1 Subject of the Contract
(1) The Licensee will receive the GMS-Manager program from the Licenser. This program is an integrated development environment (IDE). The IDE consists of two parts: a text editor and a GDX editor.
The text editor has:
a) an autocomplete function
b) an error indicator, which is automatically updated
c) a display of the symbols used, including symbol search and marking in the text
d) a tree view of the directory structure and a tree view of the call hierarchy of the used files
e) a search form to search through the respective file, all files in the base file, or all files in the project folder.
f) In each case, a base file will be created, upon which the error indicator (b) and the symbol display (c) are also dependent.
The GDX Viewer has:
a) a display of the available symbols
b) a display of the symbol domains, which also displays the elements of the symbols. The elements can be chosen individually or in any combination.
c) a display of the values. Depending on the elements selected in b), the combination of the selected elements and their arrangement in columns and rows produces the displayed selection of results.
d) a chart viewer, in which the respective selected values are presented in the form of bar charts etc.
e) a form to sort by name or by values.
f) a statistical analysis of the data in the respective columns.
g) a search form to search through the respective file, all selected files, and all files in the project folder by symbols, and to search through the current symbol by elements and by values.
(2) The subject of this Agreement is the provision of the designated computer program in the object code, and the concession of the usage rights described in Section 2. There shall be no right to the disclosure of the source code. The Licensee shall be aware of the hardware and software environment, within which the licensed software is to be used.
(3) It is hereby clarified that the present Contract solely governs the use of the IDE. The Licensee does not acquire a license for the use of software distributed by GAMS Development Corporation. This must be purchased separately.
Section 2 Conclusion of the Contract
(1) The agreement for cost-free trial use of the software becomes effective when the Licensee clicks the download button, thereby starting the download.
(2) The contract for the purchase of the paid license becomes effective when the Licenser confirms the conclusion of the Contract to the Licensee via email. In this respect, this confirmation email shall constitute a binding contractual acceptance. The offer on the Licenser’s website shall only constitute a non-binding invitation to treat. By clicking the “Purchase download” button, the client makes a binding contract offer.
Section 3 Usage rights
(1) The Licensee shall have a simple, non-exclusive right to the use of the licensed software to the extent provided for in this Agreement. The Licensee shall be permitted to fully use the software in order to test its suitability and functionality. Any further commercial use shall not be permitted. The software must be exclusively installed on the Licensee's own computers and servers. The transfer of the software to third parties, whether in return for payment or gratuitously, or the running of the software on computer systems that are not exclusively owned by the Licensee is expressly prohibited.
(2) The right to free use of the software is limited to two weeks following the download from the licenser’s website. The right to free usage expires, at the latest, at the end of the last day of the second week after the download. After the end of the two weeks, the Licensee will have the possibility to purchase a license. A purchased license shall be valid for the period the licensee has purchased the license for. As a rule, the license will be valid for a period of one year, which can extended upon payment of the yearly license fee that is applicable at the time.
(3) Permitted usage includes the Licensee installing the licensed software, loading the software into the main memory, and displaying and running the licensed software.
(4) The software may only be used simultaneously by, at most, the number of natural persons specified for the particular license acquired by the Licensee. As a rule, the license is limited to use on one computer (single-user license) or on one PC network (network license). Multiple use on multiple hardware systems is not included in the license.
(5) The Licensee is not entitled to lease out or in any other way sub-licence the software; to make the software publically available or publically distribute the software, either by wired or wireless means; or to make the software available to third parties, either in return for payment or gratuitously.
(6) The software is protected by copyright. The copyright includes the object code, the documentation, the appearance, the structure and organization of the program files, and other display formats within the software. The Licensee is not entitled, whether wholly or partially, to reproduce or copy the software in its original or in a modified form, or combined with or included in other software. Article 69d Subsection 1 of the German Copyright Act (Urheberrechtsgesetz) shall not apply insofar as its obligatory essence is already provided for under the provisions of this Agreement.
(7) The Licensee is not permitted to modify the software, to retranslate (decompilation) the program code or to carry out any other reverse engineering of the software, or in any other way to attempt to make the source code available. In the event that Article 69e of the German Copyright Act becomes applicable, the Licensee shall first request that the Licenser establish interoperability with the respective other programs. The Licensee shall only invoke his rights under Article 69e of the German Copyright Act when the Licenser's attempts to establish interoperability have failed on two occasions.
(8) Should the Licensee use the licensed software in a way that exceeds the scope of the usage rights provided within this Agreement, the Licensee shall be obliged to pay the Licenser a reasonable licence fee as compensation. Furthermore, the Licensee shall be obliged to cede to the Licenser any profits, expenses or advantages that arise from any usage that exceeds said scope. The Licensee shall expressly indemnify the Licenser against any third party claims, insofar as such claims arise from any usage which is in breach of this Agreement.
(9) After the conclusion of the usage period, as defined in Section 3 Subsection 2 of this Agreement, the Licensee must hand over the Software and any copies to the Licenser. Should a physical handover not be possible for technical reasons, the Licensee undertakes to irrevocably delete the software and all associated components.
Section 4 Costs, Payment and Service
(1) The exact scope of the license and the prices will be displayed on the licenser’s offer page on the day of the download. The applicable prices will be those at the time of the download, as displayed on the offer pages.
(2) All prices specified are final prices including statutory value added tax, if not explicitely declared otherwise.
(3) The Licensee has the following payment options: Paypal, payment in advance and credit card payment.
(4) If the Licensee opts for payment in advance, he is obliged to carry out the payment immediately after conclusion of the Contract. The necessary bank details will be shared with him in a separate email. The order will be processed after the Licenser has determined that the money has been received. There will be no fees imposed for payment.
(5) The license will be sent to the Licensee by email, at the latest, three working days after the Licenser receives the money.
Section 5 Duration and Termination
(1) The Licensee shall be able to use the cost-free license in a MS-Windows environment for a period of two weeks. Thereafter, it shall automatically expire.
(2) The Licensee can purchase a paid license with a one-year duration. The license shall automatically expire after one year unless the Licensee pays the licensee fee for a further year at least two weeks beforehand.
(3) The right to termination without notice for good cause shall remain unaffected.
(4) After termination of the Contract, the User must immediately cease using the software and completely remove all installed copies of all parts of the program from his computers and systems. Any backup copies made are to be either handed over to the Provider or irretrievably destroyed, according to the Provider’s preference.
Section 6 Warranty
In the event that the Licensee purchases a paid license, the following warranty provisions shall apply:
(1) According to the generally acknowledged state of the art, it is impossible to develop complex software that is completely error free. The agreed quality of the software made available by the Provider is, therefore, not aimed at having no program errors occur whatsoever, but instead, only at the software not exhibiting errors that affect the performance of the program for the use set out in the Contract.
(2) The warranty for material defects shall not apply to defects caused by the fact that the contractual software is being used in a hardware or software environment, which does not fulfil the specified requirements as defined in the download section of www.gms-manager.com. Similarly, the warranty for material defects shall not apply for alterations or modifications that the Licensee has carried out to the software unless required by law, by this Contract or as a result of the Licenser’s prior written consent of authorisation.
(3) If the Licensee is an entrepreneur as defined by Section 14 of the German Civil Code (BGB), the Licenser shall first be entitled to cure its defective performance, i.e. to remedy the defect (“cure”) or to replacement delivery, at its discretion. The Licensee’s right to choose reduction of purchase price for defects or termination of the contract shall remain unaffected after two failed attempts at cure or replacement delivery. The right to termination shall not apply in the case of minor defects. The Licenser shall be liable in accordance with Section 7 in the event that the Licensee brings a claim for damages or compensation for wasted expenditure.
(4) If the Licensee had the opportunity to test the functionality of the software with a demo version prior to purchasing the full version, he may not bring a claim for faults which are present in both the full version and the test version.
(5) Warranty claims based on material defects shall expire within a period of one year if the Licensee is an entrepreneur as defined by Section 14 of the German Civil Code. Otherwise such claims shall expire after two years. Section 438 Subsection 3 of the German Civil Code shall remain unaffected. In the event that the sale takes place via internet download, the expiry period shall commence after the transmission of the license to the Licensee.
Section 7 Liability
(1) In the case that a paid license is purchased, the Licenser shall be unlimitedly liable for intentional acts and gross negligence, as well as in the event of personal injuries. For ordinary negligence, however, the Licenser shall only be liable in the event of the breach of material contractual obligations, impossibility of performance caused by the Licenser, and delay. Liability is limited to damage typical of this type of contract, the occurrence of which should have been foreseen by the Licenser at the time the Contract was concluded. The Licenser shall also be unlimitedly liable for mandatory statutory provisions, such as the Product Liability Act (ProdHaftG), or a stipulated liability.
(2) Further liability on the part of the Licenser is excluded.
(3) In the event of loss of data, the Licenser shall only be liable when the the data has been backed up in an appropriate form at adequate intervals, and at least once per day, so that the data can be retrieved at reasonable expense.
(4) The limitations of liability shall correspondingly also apply for persons employed by the Licenser for the performance of its obligations.
(5) For cost-free licenses, the Licenser shall not be liable for damage which arises from use of the software in accordance with the Contract, except in the case of intentional acts. The Licenser shall not be liable for any damage incurred by the Licensee which results from use of the software which is outside of the scope of the present license agreement. The Licensee shall, in particular, be aware that this is software that he has obtained and is using without cost.
Section 8 Disclosure of Name
(1) The Licenser is entitled to publish the Licensee’s company or institution on a client list. This disclosure can take place in digital and non-digital form. In displaying this reference, the Licenser may use the name of the company or institution, as well as the logo and other information that is known to the public, such as the business sector. The Licensee therefore grants the Licenser the necessary rights to the name and brand, as well as any other rights needed in order to publish this reference.
(2) The Licensee may withdraw this permission at any time and require the removal of the information if the published reference concerns personal data. This is as indicated in the data protection regulations. The Licensee shall also have the right to removal when it is demonstrable that disclosing the name as a reference is affecting the Licenser’s business interests, in particular with regards to trade secrets.
(3) In the event that the Licenser is, in accordance with the previous paragraph, obliged to remove the reference, the Licensee will allow a period of one month for easily amended uses (e.g. website, email, social media channels etc.) and a period of six months for all other uses of the reference.
Section 9 Other Provisions
(1) The law of Germany shall be applicable, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The definitive version of this Contract shall be the English version.
(2) The Licensee’s General Terms and Conditions shall not apply.
(3) The parties are aware that the contractual software may be subject to export and import restrictions. In particular, a permit may be required, or the use of the software or related technology may be restricted outside of Germany. The Licensee shall adhere to the applicable export and import control regulations of the Federal Republic of Germany, of the European Union and of his own country, as well as all other relevant provisions.
(4) The court of jurisdiction is Berlin, as long as the Licensee is a merchant as defined in the German Commercial Code (HGB).
(5) Should any provision of the Contract be invalid, the Contract shall remain otherwise unaffected.