General Software License Terms/
End User License Agreement (EULA)
a doing business of
OMICRON electronics GmbH
6833 Klaus, Austria
(hereinafter also "Licensor")
1. General Provisions
The following Software License Terms shall be applicable to any and all agreements, offers and deliveries entered into or made by Licensor, Licensor's affiliated companies or Licensor's authorized sales partners (see https://www.omicron-lab.com/contact/our-offices-partners.html) in regard to software products and apply in addition to the General Terms and Conditions. In case of conflict with provisions in the General Terms and Conditions, the provisions stated herein shall prevail.
"Authorized Use" – use of the Program in object code form and solely for the business purposes of Licensee.
"Program" – includes the original and all whole or partial copies of: 1) machine-readable instructions and data, 2) components, files, and modules, 3) audio-visual content (such as images, text, recordings, or pictures), and 4) related licensed materials (such as keys and documentation).
"Warranty Period" – unless otherwise specified in the quotation or other accompanying documentation OMICRON's warranty period is 90 days, starting on the date the original Licensee is granted the license. If an original physical data storage medium is distributed the period starts on the day of delivery of this medium.
"Licensing Model" – OMICRON employs the following three licensing models:
1) Unless specified otherwise in the quotation or other accompanying documentation, OMICRON grants the right to use the Program on any device (computer, laptop, etc.) owned or leased by Licensee (Company License).
2) Where the quotation or other accompanying documentation expressly provides for a certain number of users or states "single user", the Program is only licensed for this number of users and may not be used by a number of users exceeding this maximum number at the same time (Single User License).
3) Where the quotation or other accompanying documentation expressly provides for free unlimited use, OMICRON grants the right to use the Program on any device (computer, laptop, etc.) independent from its ownership (Freeware License).
Where the Program also requires prior identification of the users working with the Program (e.g. through log-in authentication), the Program may only be used by these identified users.
3. License Grant
3.1 The Program is copyrighted and licensed, not sold. Licensor grants Licensee the nonexclusive, geographically unlimited and – unless otherwise specified in the quotation or other accompanying documentation – perpetual license to
1) use the accompanying user documentation,
2) install and use the Program on the Licensee's devices according to the applicable License Model and within the limits of the Authorized Use, and
3) make back-up copies in machine-readable, object code form only,
all provided that
a) Licensee has lawfully obtained the Program and complies with these License Terms;
b) Licensee reproduces all copyright notices and other legends of ownership on each copy, or partial copy, of the Program;
c) Licensee ensures that anyone who uses the Program (accessed either locally or remotely)
1) does so only on Licensee's behalf and 2) complies with these License Terms;
d) Licensee does not 1) use, copy, modify, or distribute the Program except as expressly permitted in the License Terms; 2) reverse assemble, reverse compile, otherwise translate, or reverse engineer the Program, except as expressly permitted by law without the possibility of contractual waiver; or 3) use any of the Program's components, files, modules, audio-visual content, or related licensed materials separately from that Program except where data/file export is provided for by the Program.
3.2 If Licensee wishes to use the Program in a way not covered by the Authorized Use or not in accordance with the applicable License Model, Licensee must obtain prior written approval by Licensor, which may be dependable on Licensee's acceptance of additional charges.
3.3 Special requirement for OMICRON Test Universe / PTM Advanced Software / Bode Analyzer Suite / SPECTANO Analyzer Suite: These software products are exclusively designed for carrying out or analysing tests or measurements with OMICRON devices. Licensee is only authorized to use these Programs if such use is in direct connection with the use of an OMICRON test or measuring device. Using the Program without such direct connection is only permitted where such use is required in order to:
1) prepare tests or measurements that will be carried out later with an OMICRON test or measuring device, or
2) analyse measuring results of completed tests or measurements that were carried out with an OMICRON test or measuring device.
This requirement does not apply to TransView, which may be used for analysis of any COMTRADE files independent of their source.
4. Transfer of the Program
Licensee shall not sell, sublicense or rent the Program without prior approval of Licensor. Such approval will usually be granted unless in exceptional circumstances (e.g. regarding past or potential copyright infringements). In case of such authorized transfer of the Program to a third party, Licensee agrees to (i) give up all rights regarding the Program to the extent these are transferred to the third party, (ii) discontinue use of the Program and (iii) make sure that the third party agrees to be bound by and adheres to these License Terms.
5. Trade-ups, Updates, Fixes and Patches
When Licensee receives an update, fix, or patch to a Program, Licensee shall accept any additional or different terms that are applicable to such update, fix, or patch. If no additional or different terms are provided, then the update, fix, or patch is subject solely to these License Terms. If a Program, which has been provided under the single user license model, is replaced by a trade-up or update, Licensee agrees to promptly discontinue use of the replaced Program.
6. Termination of License, Return of Program
6.1 In case of a grave violation of the License Terms by Licensee (including but not limited to a breach of any of the restrictions set out in section 3. above), Licensor shall be entitled to request immediate termination of the software license resulting in an immediate discontinue of use and return of the Program (and its copies) by Licensee. In such case, already paid license fees are non-refundable.
6.2 Where Licensor has licensed the Program for a fixed term, the software license ends automatically and Licensee must immediately return and/or delete the Program and all copies unless the parties agree to renew in writing.
7. Font Software, Open Source Components
The Program contains font software licensed from third parties. Such font software shall only be used with the Program and the font software may not be converted into a different format. The font software may not be altered or modified in any manner which results in the font software having different or enhanced functionality than when it was delivered as a part of the Program. The font software may not be embedded in any format or copied or otherwise processed in any manner which results in or is designed to result in gaining access to the source code of the font software. Licensor is itself only a licensee of this font software, which means that the font software is supplied without any warranty that the font software is free of all bugs, errors and omissions.
The Program may also contain software components which are governed by an open source license. For more detailed information on the open source components included in each Program, visit the OMICRON Open Source Center, available at http://opensource.omicronenergy.com/. With placing the order or otherwise concluding an agreement for use of the Program, Licensee accepts the use of open source components as specified in the OMICRON Open Source Center.
The license fee is set out in the individual offer. Licensor does not give credits or refunds for license fees unless explicitly agreed on in writing.
9. Warranty, Liability
9.1 Licensor warrants for the Warranty Period that the Program, when used in its specified operating environment, will perform according to its specifications. The Program's specifications and specified operating environment information are set out in the documentation accompanying the Program. Licensee agrees that such documentation and other Program content is supplied only in English.
9.2 The warranty applies only to unmodified parts of the Program.
9.3 Licensor does not warrant uninterrupted or error-free operation of the Program, fitness for a particular purpose, merchantability or that Licensor will correct minor Program defects which do not materially hamper the functioning of the software product. Licensee is solely responsible for the results obtained from the use of the Program.
9.4 For the purpose of identifying the cause of a problem with the Program, Licensor may request that Licensee 1) allow Licensor to remotely access Licensee's system or 2) send Licensee information or system data to Licensor. Refusal to provide such information in either form shall be deemed a waiver of Licensee's warranty claims.
9.5 Licensee's warranty remedies are limited to repair or substitution, at the choice of Licensor. Only where a problem or error that occurs during the Warranty Period cannot be resolved with Licensor's technical support or replacement and Licensor does not offer a technically and economically reasonable work-around solution, is Licensee entitled to price reduction or rescission.
9.6 Except in cases of gross negligence or willful misconduct, Licensor's entire liability for all claims in the aggregate arising in relation to the Program and the corresponding agreement(s) is capped at the amount of the license fee Licensee paid for the concerned Program. Under no circumstances, even if informed of their possibility, is Licensor or its suppliers liable for loss of or damage to data, indirect damages, consequential damages, loss of profits, business, revenue, goodwill, or anticipated savings. Neither Licensee nor Licensor is responsible for failure to fulfill any obligations due to causes beyond its control.
10. Licensee Data and Databases
10.1 Licensor uses information about errors and problems to improve its products and services and assist with its provision of related support offerings.
10.2. Licensee remains responsible for 1) any data and the content of any database Licensee makes available to Licensor, 2) the selection and implementation of procedures and controls regarding access, security, encryption, use and transmission of data (including any personally-identifiable data), and 3) back-up and recovery of any database and any stored data. Licensee will not send or provide Licensor access to any personally-identifiable information, whether in data or any other form, and will reimburse Licensor for all costs, penalties or other damages (including third party claims) that Licensor may incur relating to any such information mistakenly provided to Licensor or the loss or disclosure of such information by Licensor.
11. Final Provisions
11.1 No supplementary agreements have been made. All modifications must be made in writing.
11.2 If any provision of these License Terms is held to be invalid or unenforceable, the remaining provisions of the License Terms remain in full force and effect.
11.3 Unless otherwise agreed between the parties in writing, Licensee agrees to pay any and all duty, tax, levy, or fee imposed on the Program or its import or export as well as any and all personal property taxes for the Program from the date that Licensee has obtained it.
11.4 All matters arising out or in relation to these License Terms are governed by Austrian law (excluding the UN Sales Convention) and shall, at Licensor's option, be finally settled by the courts competent for A-6800 Feldkirch/Austria or by an arbitral tribunal located in Vienna on the basis of the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (Vienna Rules) and in English language.