End User License Agreement
macOS software distributed via resellers
This is a legal agreement between you (the “Licensee”) and Marcel Bresink Software-Systeme.
1. Definitions
- Authorized Use:
- the specified level at which Licensee is authorized to execute or otherwise use the Program. That level may be measured by number of users, number of computers, or other level of use as specified by MBS.
- MBS:
- Dr. Marcel Bresink, Marcel Bresink Software-Systeme.
- Program:
- the following, including the original and all whole or partial copies: (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 documentation).
- Program Activation:
- associating a Registration to a well-defined Authorized Use for a specific time period through a technical feature triggered by the Licensee which is provided by the Program. For example, Licensee confirms to MBS that the Program shall be used in the future on a specific computer by expressly initiating a particular Internet communication function of the Program.
- Registration:
- a proof of entitlement giving evidence of Licensee's Authorized Use. The Registration may also be used as evidence of Licensee's eligibility for technical support, warranty, future upgrade prices, if any, and special or promotional opportunities.
2. License Grant
The Program is owned by MBS, and is copyrighted and licensed, not sold. MBS grants Licensee a non-exclusive license to (1) use the Program up to the Authorized Use specified by the Registration, (2) make and install copies to support such Authorized Use, and (3) make a backup copy, all provided that
a) Licensee has lawfully obtained the Program and the Registration, if any, and complies with the terms of this Agreement,
b) the backup copy does not execute unless the backed-up Program cannot execute,
c) Licensee reproduces all copyright notices and other legends of ownership on each copy, or partial copy, of the Program,
d) Licensee ensures that anybody using the Program does so only on Licensee's behalf and complies with the terms of this Agreement,
e) Licensee does not (1) use, copy, modify, or distribute the Program except as expressly permitted in this Agreement, (2) reverse-assemble, reverse-compile, otherwise translate, or reverse-engineer the Program, except as expressly permitted by law without the possibility of contractual waiver, (3) use any of the Program's components, files, modules, audio-visual content, or related licensed materials separately from that Program, or (4) sub-license, rent or lease the Program.
This license applies to each copy of the Program that Licensee makes.
2.1 Updates
When Licensee receives an update to the Program, Licensee accepts any additional or different terms that are applicable to such update if the update contains information providing such terms.
2.2 Fixed Term Licenses
If the Registration specifies Authorized Use for a fixed term, Licensee's license is terminated at the end of the fixed term, unless Licensee and MBS agree to renew it.
2.3 Term and Termination
This Agreement is effective until terminated. MBS may terminate Licensee's license if Licensee fails to comply with the terms of this Agreement.
If the license is terminated for whatever reason by either party, Licensee agrees to promptly discontinue use of and destroy all of Licensee's copies of the Program. Any terms of this Agreement that by nature extend beyond termination of this Agreement remain in effect until fulfilled, and apply to both parties' respective successors and assignees.
3. Charges
Charges are based on Authorized Use obtained, which is specified in the Registration. If Licensee wishes to increase Authorized Use, Licensee must notify the authorized reseller in advance and pay any applicable charges.
4. Registration and Program Activation
The Registration can be obtained from authorized resellers. If no Registration is obtained for the Program, Authorized Use will be limited. Limitation means that only a few or no features of the Program can be used or that practical operation will be restricted. The level of limitation is defined by Program documentation. This limited Authorized Use without Registration applies to an unlimited number of users on a reasonable number of computers owned or controlled by Licensee.
If Licensee obtained Registration for the Program, the limitations will be lifted to permit unrestricted Authorized Use on a specific computer, as far as specified by Registration, as soon as Licensee triggers Program Activation on that computer. Program Activation requires an Internet connection which must be kept operational by Licensee at its own expense. MBS can agree the Program Activation can be delegated to a different computer, if the computer for which Authorized Use should be confirmed, is not connected to the Internet.
Licensee can terminate Program Activation for a specific computer any time, for example to transfer Authorized Use from that computer to a different one. This also requires an Internet connection under the aforementioned terms on the computer for which Program Activation should be disabled.
To implement Program Activation, MBS is entitled to process and store data about the affected entities, in particular the time of activation, an identification of the Registration, and an identification of the computer. In order to prevent abuse, an additional identification of the Internet connection (such as the IP address) can be processed and stored for a time of up to 15 minutes.
MBS makes best effort to operate all Internet services necessary for Program Activation without interruption or errors. To achieve this, the use of third-party services can be required which are not under control of MBS. Given the current state of art, MBS and Licensee agree that it is not possible to warrant uninterrupted and error-free operation of all required services at all times, under all circumstances. MBS shall not be liable for any damage caused by failed or delayed Program Activation.
4.1 Registration Scope
A standard Registration permits Authorized Use of the Program for multiple users on a single computer owned by Licensee. If the Licensee is a private individual, the non-concurrent use on a second computer which is mainly in personal operation of this individual (for example a mobile computer) will be permitted additionally.
If the Licensee is not a private individual, the scope of Authorized Use is limited to its legal entity, excluding subsidiaries and affiliates with a separate existence for tax purposes or for legal personality purposes. In the private sector, this entity would be a corporation, partnership, or trust, excluding sub-organizations with a separate tax identification number or company registration number. In the public sector, the entity would be a specific government body or local government authority.
The limitation for Authorized Use on a single computer (or two privately owned computers), can be lifted by obtaining multiple standard Registrations. For example, obtaining three standard Registrations would permit Authorized Use on three computers for organizations, or Authorized Use on six computers for private individuals under the above conditions, respectively.
If available, Licensee can choose to obtain a Site License to permit Authorized Use for an unlimited number of users for all computers that are located at a geographically coherent point of use, such as the local branch of a company, for example. If available, Licensee can alternatively obtain a Global License to permit Authorized Use for an unlimited number of users for all computers owned by Licensee.
4.2 Personalized Registrations
Under specific circumstances and under sole discretion of MBS, a Registration can be issued in personalized form, which means that the Registration explicitly identifies the Licensee, and that the Program is capable of making this identification visible in plain text. This includes, but is not limited to, Registrations sold before June 1, 2016. For this type of Registrations, the following special regulations apply:
a) Program Activation is not required and not possible.
b) If Licensee is a private individual, the individual can decide to replace the rule that permits Authorized Use for multiple users on a single computer by an alternative rule that only grants this single person permission to the use the Program on an unlimited number of computers he or she owns. MBS does not need to be informed about this decision.
c) In no case, however, shall a single personalized standard Registration allow multiple users to ever use the Program on multiple computers, regardless of whether such is concurrent.
5. License Transfer
Licensee may transfer the Program and all of Licensee's license rights and obligations to another party only if that party agrees to the terms of this Agreement. If the license is terminated for any reason by either party, Licensee is prohibited from transferring the Program to another party. Licensee may not transfer a portion of (1) the Program, or (2) the Program's Authorized Use. When Licensee transfers the License, Licensee must also transfer the obtained Registrations. Immediately after the transfer, Licensee's license terminates.
6. Warranty and Exclusions
6.1 Limited Warranty
MBS warrants that the Program, if used in its specified operating environment, will conform to its specifications. The specifications and the definition of the specified operating environment, can be found in the documentation accompanying the Program or other information published by MBS, such as a product description. The warranty period begins at the date of delivery or provisioning of the Program to the original Licensee. Its length is defined by the minimum period as required by applicable statutory law in the country where the Program is used. If no minimum is specified, it will be defined as six months.
Warranties can only apply to unmodified portions of the Program. Licensee is responsible for the results obtained from the use of the Program.
If the Program does not function as warranted during the warranty period and the problem cannot be resolved with information published by MBS as Known Issues or Release Notes documents, Licensee may return the Program and its Registration and receive a refund of the amount Licensee paid from the party from whom Licensee obtained the products. It is necessary to contact MBS to receive instructions on how to obtain the refund. After returning Program and Registration, Licensee's license terminates.
Terms only applicable to users under scope of the jurisdiction of the United States of America:
6.2 Exclusions
These warranties are Licensee's exclusive warranties and replace all other warranties or conditions, express or implied, including, but not limited to, any implied warranties or conditions of merchantability, satisfactory quality, fitness for a particular purpose, title, and any warranty or condition of non-infringement. Some states or jurisdictions do not allow the exclusion of express or implied warranties, so the above exclusion may not apply to Licensee. In that event, such warranties are limited in duration to the warranty period. No warranties apply after that period. Some states or jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to Licensee.
These warranties give Licensee specific legal rights. Licensee may also have other rights that vary from state to state or jurisdiction to jurisdiction.
The warranties in section 6 are provided solely by MBS. The disclaimers in this subsection 6.2, however, also apply to MBS' suppliers of third-party code. Those suppliers provide such code without warranties or condition of any kind. This paragraph does not nullify MBS' warranty obligations under this Agreement.
6.3 Limitation of Liability
In no event shall MBS or anyone else involved in the creation, production, marketing, distribution, or delivery of the Program, be liable for any damages whatsoever; including, without limitation, damages for loss of business profits, for business interruption, for loss of business information, or for other monetary loss, arising out of the use of the Program or the inability to use the Program, even if Licensee has been notified of the possibility of such damages.
In no event shall MBS be liable for any special, indirect, or consequential damages, or for any damages whatsoever, whether in a contract action, negligence or other tort action, or other claim or action, arising out of, or in connection with, the use or performance of the Program and other information provided to Licensee by MBS, or in the provision of, or failure to provide, services or information.
Because some states do not allow the limitation of the liability for consequential or incidental damages, the above disclaimer may not apply to Licensee.
End of terms only applicable to users under scope of the jurisdiction of the United States of America.
Terms only applicable to users outside the scope of the jurisdiction of the United States of America:
Section 6.1 defines MBS' entire warranty obligations to Licensee except as otherwise required by applicable statutory law.
End of terms only applicable to users outside the scope of the jurisdiction of the United States of America.
7. Licensee Data
To assist Licensee in isolating the cause of a problem with the Program, MBS may request that Licensee sends information or system data to MBS. Licensee remains responsible for (1) any data Licensee makes available to MBS, (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) backup and recovery of any stored data. Licensee will not send or provide MBS access to any personally-identifiable information, whether in data or any other form, and will be responsible for reasonable costs and other amounts that MBS may incur relating to any such information mistakenly provided to MBS or the loss or disclosure of such information by MBS, including those arising out of any third-party claims.
8. Compliance Verification
Licensee agrees to create, retain, and provide to MBS accurate written records, and system information sufficient to provide checkable verification that Licensee's use of the Program is in compliance with the License Agreement, including without limitation, all of MBS' applicable licensing and pricing qualification terms. Licensee is responsible for (1) ensuring that it does not exceed Authorized Use, and (2) remaining in compliance with the License Agreement. MBS is generally entitled to monitor this compliance by random sampling through features of the Program.
9. General
a) Licensee agrees to immediately notify MBS in writing of any misuse, misappropriation or unauthorized disclosure, display or copying of the Program that may have come to Licensee's attention. Licensee must not disclose any data associated with a Registration to third parties.
b) Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.
c) If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect.
d) Licensee may not use or otherwise export or re-export the Program except as authorized by the laws of the jurisdiction in which the Program or Registration was obtained. In particular, but without limitation, the Program may not be exported or re-exported (1) into any U.S.-embargoed countries, (2) to a country on Title 15, Part 740 Supplement 1 Country Group E of the U.S. Code of Federal Regulations, (3) to anyone listed in any U.S. Government list of prohibited or restricted parties, or (4) into any country and to anyone listed as requiring export licensing of the German Federal Office of Economics and Export Control. By using the Program, Licensee represents and warrants that it is not located in any such country or on any such list. Licensee also agrees that it will not use these products for any purposes prohibited by United States and European Union laws, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
e) The Program and the procedures to obtain Program and Registration comply with Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. For details, please see MBS' Data Protection Notice, available at https://www.bresink.com/privacy.html.
f) Each party will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations under this Agreement. The parties will attempt in good faith to resolve all disputes, disagreements, or claims between the parties relative to this Agreement.
g) Neither Licensee nor MBS is responsible for failure to fulfill any obligations due to causes beyond its control.
10. Geographic Scope and Governing Law
Both parties agree to the application of the laws of the country in which Licensee obtained the Program license to govern, interpret, and enforce all of Licensee's and MBS' respective rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to conflict of law principles.
The United Nations Convention on Contracts for the International Sale of Goods does not apply. All rights, duties, and obligations are subject to the courts of the country in which Licensee obtained the Program license.
Any rights not expressly granted in this License Agreement are reserved.
2022-01-01