V1
Please carefully read the following legal agreement.
This End User License Agreement("EULA") is a legal agreement between you, either in your individual capacity, or on behalf of an entity, hereafter referred to as "Licensee" or "you", and the Phobyx GmbH&Co.KG (hereafter "Phobyx" or "Licensor").
The agreement is effective beginning on the date on which Licensee accepts this agreement in a way defined in section 4) below.
Licensee agrees to all terms and conditions set forth in this agreement and the accompanying documentation.
If you do not agree with the terms and conditions you are not authorized to use the subject software in any way and shall destroy all copies in your possession.
"gonuts": software product called "gonuts" or "gonuts toolchain" as published and offered by Licensor in a version indicated under the "basic, free license" as set out in this agreement, including all programs, applications, documentation, related libraries and dynamic modules (called "dens") or parts thereof conceivable or indicated to be included, but excluding the resources (e.g. source text) required to create the binary, useable forms. In case gonuts comes with an Application Programming Interface (API) intended to create dens, which Licensor offers to the general public in the form of source text (open source), such source texts contain a different license and this agreement hence shall not directly affect such source texts related to the API.
"commercial use": any use, including distribution or offering services, by an individual or entity seeking financial, material or service benefits from third parties, directly or indirectly related to or by the use of gonuts. Such use includes, but is not limited to distributing gonuts or applications developed using gonuts, developing such applications or offering any other services related to gonuts with the aim to maintain, support, achieve or increase benefits measurable in fiscal terms.
"government use": see "use by authorities" below
"use by authorities": Any use, including distribution or offering services by an individual or entity being or on behalf of a governmental or public authority, with the exception of any such institutions of a strictly academic nature.
"application": a device, service, product, program or tool executed by, using or utilizing gonuts, directly or indirectly in any way, including modules called "dens" intended to amend or extend gonuts functionality. Note such applications may imply additional independent usage rights held or granted by their respective authors, and such additional rights or restrictions are not subject of this agreement unless they are explicitly part of gonuts or this agreement is referenced by the author(s) or holder(s) of the respective rights. Such applications, depending on the existence of any sublicensing rights Licensor may have granted to such third parties, may be affected by additional agreements you may have entered in parallel or independently.
This agreement applies to gonuts as published by Licensor as a "basic" or "free license" of gonuts. Additional license types existing usually are subject to dedicated agreements instead. Licensee is aware of technical and provisional restrictions applied to gonuts in its version under this basic, free license.
Licensor grants Licensee non-exclusive, non-transferable, non-assignable, non-sublicensable limited rights to:
install gonuts on any device possessed by Licensor and in Licensors sole direct control
develop and run own applications, tools and programs ran by or utilizing gonuts, for strictly private, non-commercial and non-governmental use on devices possessed by or in direct control solely of Licensor
publish such applications, tools and programs for use by third parties, provided such action is free of charge and neither directly or indirectly commercial or government use in any way. Licensee may set out its own additional licensing and agreements for such applications, given they do not collide with this agreement in due respect it will also apply to any such third party users. Licensee grants Licensor the right to distribute and publish such applications under the same terms and conditions.
run such applications made availabe by third parties or Licensor, provided there is no license or agreement conflict implied by such applications and no provisional or technical restrictions object.
If you are a student or a member of an academic institution you are additionally entitled to execute above rights on any device owned by an academic institution or others, in which case the device and gonuts must be strictly bound to be used in an academic context only
If you are an entrepreneur, a company, a government or authority or any other similar individual, entity or institution intending to use gonuts you may evaluate gonuts for a period of 6 months by executing above rights. However, you are not entitled to any further commercial or governmental use, especially distribution, advertising or providing services to third parties or even further internal use of such applications. To continue using or utilizing gonuts after 6 months you need to engage into another license and agreement with Licensor, be it individual or as offered on Licensors website(s), as a followup superseding this agreement. Otherwise this agreement will expire and terminate without notice after said 6 months.
Licensor does not expect a compensation for this license. Licensee may or may not make payments as consideration for this license, and the amount of such voluntary payments is at its sole discretion. If Licensee is an entity or entrepreneur and makes such a payment to Licensor, Licensor will issue proper documentation for tax purposes (bills) on request once, on condition that Licensee provides proof of identity related to the payment.
Licensor reserves all rights not expressly granted in this agreement.
Without limitations, licensee must not:
GONUTS IS PROVIDED "AS IS", LICENSEE IS RESPONSIBLE FOR ANY RESULTS FROM INSTALLING OR USAGE. LICENSOR DOES NOT MAKE AND DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.
Licensor is liable for damages only if A) caused by violation of essential obligations of this agreement due to Licensors negligence or intent endangering the purpose of this agreement or B) such damages are caused by Licensors gross negligence or intent. In above case A) or in the case damages were caused by gross negligence or intent of Licensor personnel, liability is limited to the amount of payments received from the respective Licensee.
Phobyx is not liable for indirect or consequential damages, loss of profits or costs provided they are not a result of gross negligence or intent.
Exclusion or limitation of liability pursuant to this section also applies respect to claims against Phobyx staff or contractors.
Liabilites for death, injury or health according to German Product Liability Act(Produkthaftungsgesetz) shall remain unaffected.
Both Licensee and Licensor are reponsible for reasonable reduction of damages. This expressly includes, but is not limited to Licensee immediateley informing Licensor about (and non-disclosure to third parties of) any information acquired that is suitable to exploit or abuse gonuts, especially to avoid or circumvent technical or provisional license, agreement or usage restrictions.
IN NO EVENT EXCEPT INTENTIONAL ACTS OR OMISSIONS LICENSOR SHALL BE LIABLE FOR ANY DAMAGES, INCLUDING INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, OR FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY LICENSEE OR ANY THIRD PARTY, WETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM AGGREGATE LIABILITY TO LICENSEE IN CONNECTION WITH OR RELATED TO THIS AGREEMENT IN ANY MANNER, INCLUDING NEGLIGENCE OR OTHERWISE, WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY OR ON BEHALF OF LICENSEE TO LICENSOR UNDER THIS AGREEMENT. THIS ALLOCATION OF RISK IS REFLECTED IN THE AMOUNT OF COMPENSATION CONTEMPLATED UNDER THIS AGREEMENT.
Licensee shall indemnify Licensor against all costs and expenses, including reasonable attorney fees and expenses, and all other liability related to Licensees use of gonuts.
This agreement and the license granted herein begin the day Licensee accepts this agreement, which is assumed when downloading, installing or latest by using gonuts. Licensor provides this agreement on its website and as material accompanying gonuts.
In case you do not accept this agreement you must not use (or immediately discontinue using) gonuts and destroy all copies or installations made in your custody, control or possession.
The agreement remains in full force and effect unless terminated as set forth:
Upon withdrawal, termination or expiration, any and all rights of Licensee herunder shall terminate without prejudice. Licensee shall have no right to use gonuts in any manner and all rights shall revert without notice.
Termination of this agreement shall not create any liability against Licensor and shall not relieve Licensee from any liability arisen prior to termination or expiration. Provisions which their terms or sense are intended to survive shall survive termination, expiration or cancellation of this agreement.
LICENSEE IS AWARE THAT ANY TERMINATION, EXPIRATION OR CANCELLATION MAY CONSEQUENTLY AFFECT APPLICATIONS CREATED BY LICENSEE OR THIRD PARTIES FOR GONUTS OR UTILIZING GONUTS, WHICH LICENSEE WILL HENCE NOT BE ALLOWED OR ABLE TO USE UNLESS SUCH APPLICATIONS WERE OR ARE LICENSED SEPARATELY AND EXPRESSLY BY LICENSOR OR THE RESPECTIVE OWNER OF SUBLICENSING RIGHTS FOR THE APPLICATION(S) IN QUESTION, OR UNTIL LICENSEE RE-ENTERS THIS AGREEMENT.
This agreement supersedes all prior agreements made between Licensor and Licensee regarding gonuts (basic or free license), and it cannot be combined with prior similar agreements.
This agreement does not constitute or be construed as constituting a partnership or joint venture.
No provision herein shall give, or is intended to give, any rights of any kind to third parties.
Oral agreements have not been made.
gonuts contains third party code listed accompanying gonuts or any other way. Such code is distributed under its own license terms as indicated, and these are incorporated by reference. In case of any conflict the respective third party license shall prevail.
gonuts may come with mechanisms to modify or create a copy of gonuts or parts thereof using a license key or patch files provided by Licensor, usually removing technical restrictions. The result of applying such key or patch will be a different product version not subject to this agreement anymore, but subject to a dedicated and independent agreement applicable and entered to receive such key or patch, unless expressly indicated otherwise in writing by Licensor. Any unmodified copies of gonuts will not be affected and remain subject to this agreement. In case of any failure or unintended result of applying such license key or patch, Licensee shall contact Licensor to seek help solving the issue, refrain from using the result other than advised by Licensor, and eventually destroy the defective or unintended copy.
Licensee must not attempt to create such keys or patches on his own, which among others shall be considered violating section 2).
Licensor may provide additional services related to gonuts, which are not subject to this agreement.
German law applies to this agreement. In case you are no consumer, place of jurisdiction is Oldenburg(Oldbg), Germany.
If any provision of this agreement should be found to be invalid or unenforceable for legal reasons, such invalidity shall not affect the other provisions of this agreement, which shall remain in full effect. Licensor and Licensee agree to attempt substitution of invalid or unenforceable provision(s) by (a) valid or enforceable one(s) achieving to the maximum extent possible the economic and legal objective of the agreement, applying as well in case of an omission or invalidity of the agreement in whole.