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
Thurn-und-Taxis-Str. 14
D-90411 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.
System: Physical computer, virtual systems and other devices such as security cams, routers, etc.
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 (discontinued)
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 / XL “n” License
“Corporate Country License” (discontinued)
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” / XL “n” 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. MSP license (discontinued)
The software may be installed on any quantity of computers and used by one or more users. 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 and a maximum of 5,000 sensors per one Core Server.
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. With new software versions, Paessler may change features and functionality.
During the maintenance period, the customer may also receive technical support via the support ticket system of Paessler AG. Paessler AG will only grant technical support for PRTG installations that follow the recommended setup described at https://www.paessler.com/prtg/requirements. Especially, supported PRTG installations may not exceed a maximum of 10,000 sensors.
§ 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.
7. All Paessler AG products are subject to export control laws and regulations. Customer will comply with all the export control laws and regulations of customer’s home country. These laws and regulations include restrictions on destinations, end user and end use. Customer acknowledges, that an export, re-export, sale, forwarding or activation of the software to the countries listed at the following URL is prohibited in any case: https://www.paessler.com/company/terms/export-control. If you are a reseller and become aware of or suspect that a user intends or has exported the software in violation of the foregoing, you are prohibited from selling any products to such user. Furthermore, the distribution of products to individuals or institutions involved in the design, development or production of nuclear technologies or nuclear, biological or chemical weapons is prohibited.
§ 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: March, 7th 2016