1. Scope
1 This development license (hereinafter the “License”) is valid for the software product FlexGanttFX produced by Dirk Lemmermann Software & Consulting (hereinafter the “Licensor”). FlexGanttFX (hereinafter the “Software”) is a framework for the creation of Gantt charts based on the programming language Java.
2 This License regulates the conditions applicable for the use of the Software by a legitimate purchaser (hereinafter the “Licensee”) for the creation of Gantt charts. Any use of the Software that differs from or exceeds the limits of this License is prohibited. The License applies both when purchasing the Software directly from the Licensor and when purchasing the Software from a distribution partner of the Licensor.
3 Any general terms or purchase conditions of the Licensee that may possibly exist are hereby refuted. They shall not become part of the agreement.
2. License and items to be supplied
1 The subject matter of the License is the copy of the Software programs in object code and, where offered by the Licensor, the associated documentation supplied electronically to the Licensee either by the Licensor or one of his distribution partners or produced by downloading it from the website of the Licensor or one of his distribution partners and storing it on the Licensee’s computer.
2 If nothing else has been expressly agreed, delivery of the Software (programs and documentation) shall occur in the version that is current at the moment of supply or downloading.
3. Rights of use
1 The Licensee shall receive the non-exclusive and, subject to the proviso set out in section 13 below, enduring right to use the Software for the creation of Gantt charts. The right of use is limited to the Licensee’s company or organization. The Licensee shall be entitled, within its company or organization, to allow its staff to use the Software, to install and use as many copies of the Software as it wishes on computers belonging to the Licensee or hired or leased by it and to produce the requisite copies of the Software for such use.
2 The Licensee may integrate the Software programs into other computer programs or otherwise use them in connection with other programs. The Licensee may not modify the Software, with the exception of the right to eliminate errors, providing that such right is compulsorily granted to the Licensee under applicable law.
3 The Licensee is not permitted to pass on the Software or copies thereof or to make it accessible for third parties in any form whatsoever, in particular through networks, other than in the exceptional cases expressly stated below.
4 If the Licensee wishes to pass on the Gantt charts it has developed to third parties or to make them accessible to third parties, a special software runtime license is necessary and must be purchased by the Licensee in advance from the Licensor.
4. Copyright and other rights in the Software
1 The copyright and all other intellectual property rights and rights against unfair exploitation in the Software, in particular the exclusive right to permanent or temporary, full or partial duplication by any means and in any form, the exclusive right to modify the Software and to create works derived therefrom and the exclusive right to distribution, including the right to provide access through networks such as the
Internet, the right to hire out and the right to loan, are held exclusively by the Licensor and shall remain the property thereof.
2 With respect to the Software, the Licensee has only the non-exclusive rights granted through this Development License, which also include the right to eliminate errors and the right to make a copy for back-up and archive purposes. Copyright notices, trade marks, company and other business designations of the Licensor or third parties which appear in the programs or the documentation or in other material accompanying the Software may not be altered, deleted or removed, even in copies of the programs or documentation.
5. Transfer of the License to third parties
1 The License and the Licensee’s rights of use pertaining thereto may be transferred to a third party only with the Licensor’s prior consent and only subject to the pre-condition that the third party undertakes to comply with the conditions of this License and that the Licensee surrenders its own use of the Software and deletes all full or partial copies of the Software in its possession.
6. Decompilation
1 Any decompilation of the Software is permitted only if (i) this is essential to achieve interoperability of the Software with independently created software, (ii) the information necessary for achieving interoperability was not made accessible by the Licensor within a reasonable period after receiving a written enquiry from the Licensee, and (iii) it is restricted to such parts of the Software as are necessary for achieving interoperability.
2 The right pursuant to para. 1 does not allow the information obtained within the limits of the exercise thereof to be used for purposes other than the achievement of interoperability, or to be passed on to third parties, or to be used for the development, production or marketing of computer programs substantially similar in their expression to the Software, or for any other actions infringing the exclusivity rights of the Licensor in the Software.
7. Maintenance and support
1 No Software maintenance or support services shall be supplied by the Licensor, unless the parties have concluded a separate maintenance or support agreement.
8. Prices and payment conditions
1 Except where there exists express agreement to the contrary, the License fees for the Software shall be determined in accordance with the Licensor’s prices in force on the date of supply or downloading of the Software. The Licensor reserves the right to alter the prices at any time. The License fees do not include any services such as, for example, installation, implementation, training or support. If the Licensor provides any services, it shall be entitled to invoice these in accordance with current rates on a time-and-materials basis subject to the existence of other agreements in any separate contracts for services.
2 Providing nothing else has been expressly agreed, all fees, rates and prices are in Swiss francs exclusive of VAT and other taxes, levies, customs or fees of any type and excluding incidental costs such as insurance, expenses etc.
3 Invoices from the Licensor are due for payment within 30 days of the date of the invoice. In case of non-compliance with payment periods or dates, the Licensee shall additionally owe default interest of 1% per month, without any reminder, with effect from the due date for payment. Set-off of any counter claims by the Licensee is permitted only with the prior approval of the Licensor, or if there has been a non-appealable judgment.
9. Delivery dates
1 Delivery dates are binding for the Licensor only if expressly confirmed by it in writing. An exception is made in the case of hindrances to delivery outside the area of influence of the Licensor such as appreciable disturbances to operation, breakdown in telecommunications connections, industrial disputes, official measures or force majeure. If a binding delivery date cannot be met by the Licensor for reasons attributable to it, the Licensee shall twice set a reasonable grace period of at least 10 working days on each occasion. If the Licensor does not meet the second period, the Licensee shall be entitled to withdraw from the agreement. Reminders and notifications of grace periods shall be given in writing.
10. Infringement of intellectual property rights
1 The Licensor shall defend claims brought by third parties against the Licensee on the grounds of infringement of intellectual property rights through legitimate use of the Software at its own expense (incl. damages) and risk, provided that the Licensee notifies the Licensor of such claims immediately in writing and allows it sole power of decision regarding the conduct of any proceedings or other measures for judicial or out-of-court settlement of the dispute and providing that the Licensee did not predominantly cause or bear the responsibility for the claim by the third party or for a non-appealable judgment against it.
2 If such claims are asserted by third parties, the Licensor may, as it prefers, either procure for the Licensee the right to continued use of the Software, or replace it with equivalent software, or cancel the agreement and refund the price paid by the Licensee. Any liability on the part of the Licensor shall be regulated according to section 12.
11. Warranty
1 The warranty by the Licensor is only valid for a Licensee who purchased the Software directly from the Licensor, and refers to repeatable defects sufficiently documented by the Licensee in the unmodified Software acquired from the Licensor, i.e. to deviations from the description of the programs in the associated documentation and only if the defects result in a serious impairment of the intended and contractually-compliant use. The Licensor shall provide no warranty for performance features, functionalities, possibilities for use, or other properties of the Software not described in the documentation.
2 The Licensor shall endeavor to rectify a defect through supply of a corrected version (update) or a workaround solution or information as to how to avoid the effects of the defect. If a defect cannot be eliminated within two reasonable grace periods set in writing by the Licensee, each of at least 20 working days, then, and providing that the Software was purchased directly from the Licensor, the Licensee shall have a claim to a reduction in the price or, in the case of a severe defect, to cancellation of the agreement and refund of the price paid.
3 The warranty period shall amount to 2 months from either the date of the supply of the Software by the Licensor or download thereof by the Licensee. Rectification of defects or replacement of the Software or parts thereof shall not result in prolongation of the warranty.
4 All more extensive warranty claims shall be excluded, in particular in connection with defects and malfunctions for which the Licensor is not responsible such as force majeure, incorrect installation, intervention by the Licensee or third parties, unsuitable usage conditions or environmental influences. If, after investigation of a purported defect, it transpires that there is no defect, the Licensor shall be entitled to invoice the Licensee for the costs of the investigation at the Licensor’s rates in force at the time of the investigation.
12. Liability
1 The Licensor shall be liable for any grossly negligent or intentional loss or damage caused by it and its senior executive bodies. Any more extensive liability, in particular for consequential loss or damage and other indirect loss or damage such as, for example, loss of profit, claims of third parties against the
Licensor or loss of data, is excluded insofar as permitted by law.
13. Termination of the License
1 In the event of any infringement of the provisions of this License by the Licensee, such as infringement by the Licensee of the Licensor’s rights in the Software, in particular in the case of use of the Software above and beyond the rights of use stated in section 3, or in the event of default in payment on the part of the Licensee, the Licensor shall be entitled to terminate this License with immediate effect after the expiry without result of a 10-day grace period, set in writing, for restoration of the lawful circumstances. In this case, any outstanding claims for remuneration on the part of the Licensor shall become due immediately, and shall be settled by the Licensee within 10 days. Any payments already made by the Licensee shall be forfeited and shall remain the property the Licensor.
2 On termination of this License, the Licensee shall, at the request of the Licensor, immediately and irretrievably delete the Software and all complete or partial copies thereof and confirm this to the Licensor in writing, or shall return them to the Licensor.
14. Partial invalidity
1 If individual provisions of this License agreement are or become fully or partly invalid or unenforceable, this shall not affect the validity of the remaining provisions. The parties shall replace the ineffective provision with an effective one which, as far as legally possible, most closely approaches the economic purpose of the ineffective provision.
15. Applicable law and place of jurisdiction
1 This License agreement and the complete legal relationship between the parties are subject to substantive Swiss law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) and the Hague Conventions Relating to a Uniform Law on the International Sale of Goods shall not apply.
2 In the event of disputes arising from or in connection with these conditions or the legal relationship between the parties as a whole, the courts in the place where the Licensor’s registered office is located, at present Zurich, shall have exclusive jurisdiction.