End User License Agreement

"Azure Marketplace EULA" - Esdenera Networks GmbH - 2017-02-22

This Software license agreement ("EULA") is a legally binding agreement between you (the "End User") and Esdenera Networks GmbH ("Esdenera").

Please read this EULA carefully. If you have been informed of the existence or validity of this EULA or have read the EULA before finally downloading or otherwise acquiring the Software you accept all of the terms and conditions of this EULA through the download or access to the Software. You also agree with the terms and conditions of this EULA by activating, installing, or using the Software. If you do not wish to be legally bound by the terms and conditions of this EULA, do not download, acquire, activate, install or use the Software.

Esdenera and the End User together shall be referred to as the "Parties" and individually shall be referred to as a "Party". Any different or additional terms proposed by End User are objected to and will not be binding upon Esdenera, even if not contested expressly, unless assented in writing by Esdenera.

1. Definitions

1. "Azure" shall mean Microsoft Azure, Microsoft's suite of cloud-computing services.
2. "Azure Marketplace" shall refer to the sales channel that makes it easy for sellers to offer software solutions that run on the Azure cloud infrastructure.
3. "Software" shall mean all Esdenera programs in every form and without limitation to the supporting medium, including upgrades, modified versions, additions, and copies of it available for usage or download via the Azure Marketplace appliance.

2. Subject of EULA

Esdenera provides End User with usage rights to the Software in the respectively agreed version accessible on Azure Marketplace according to clause 3(2). Esdenera is not responsible for the Azure systems and the Software availability on the Azure systems and has in particular no obligation to grant access to the router exit of the data center, in which the server with the Software is ready for use. End User is responsible for obtaining the computing power required for use and the required storage through Azure. Esdenera is further not responsible for the production and maintenance of the data connection between the IT systems of End User and the systems that the Software is running on in Azure.

3. Grant of License

1. Esdenera reserves all intellectual property rights, particularly copyrights, patent rights, brand rights and further industrial and other property rights to the Software. The Software is in particular legally protected under the German Copyright Act.
2. Esdenera grants End-User a temporary, non-exclusive, not geographically-limited usage right to the Esdenera Software for the agreed product specifications in accordance with the terms and conditions of this EULA for the term of the agreement. End User shall use the Software for its designed purpose and shall have no further right or interest to use the Software other than the limited rights as specified in this EULA.
3. Copies of the Software may be made if necessary for its use in a given case. Necessary copies may include the installation of the Software on End User's hard disk as well as loading it thereafter into the main memory on End User's Hardware.
4. End User is not entitled to change or in any other way edit the Software without Esdenera's prior written consent. Reverse engineering, disassembling and de-compiling the Software is likewise not permitted outside the limits set by § 69e German Copyright Act. Furthermore, changing or removing the so-called copyright note and/or copy protection and the like is prohibited.
5. Insofar as the Software contains third party software components or open source software components End User is granted copyrights for these components according to the stipulations of the respective licenses.

4. Limitations on Transfer

End User shall not loan, license or sub-license the Software, or transfer or convey the Software or any right in the Software to a transferee without the prior written consent of Esdenera. Due to the transfer of Software rights End User's rights to use the Software expire immediately.

5. Open source software and third party components

Insofar as the Software contains open source software components or third party software components that are marked and licensed as such these components are subject to the legal conditions of the respective licenses and not this EULA.

6. License Fee

In consideration of the license grant and the Software usage, End User agrees to pay the sum of the respective Esdenera license fee that the Software is offered for in the Azure Marketplace.

7. Support

End User may additionally purchase support and update services in accordance with the respective service level agreements and separate conditions.

8. Confidentiality

1. End Users agrees to keep secret and not to communicate to third parties Esdenera know-how, access data and any other information which is either marked confidential or which has to be deemed confidential from the circumstances it is provided under or comes to End User's attention ("Confidential Information"). End User shall take all appropriate steps to safeguard the Confidential Information and to protect the Confidential Information against disclosure, misuse, espionage, loss unauthorized use or theft.
2. The secrecy obligation does not apply to any information of which can be proven by written documents that it:
   • was known to End User at the time of disclosure and was not disclosed to End User by a third party breaching any secrecy obligation, or
   • is generally available to the public through no fault of End User.
3. After termination of the EULA the obligations from this article shall remain effective.

9. Warranty

1. The Software shall be substantially in accordance with the product description. Esdenera shall not be liable for the Software being fit for a particular purpose to which End User intends to put it unless such warranty is given in writing. Rights in case of defects shall be excluded in the event of minor or immaterial deviations from the agreed or assumed characteristics, in the case of just slight impairment of use and in case of deviations caused by the improper use of the Software. Product descriptions shall not be deemed an independent guarantee unless separately agreed in writing. In respect of updates, upgrades and the delivery of new versions, End User's rights in case of defects shall be limited to the new features of the update, upgrade or new version compared to the previous version release.
2. If End User demands replacement performance because of a defect, Esdenera has the right to choose between improvement or replacement. If the defect is not cured within a reasonable first time limit and End User has set Esdenera a reasonable second time limit without success or if a reasonable number of attempts to remedy, replacement deliveries or replacement services are unsuccessful, then End User may, subject to the German statutory prerequisites, at its option withdraw from this EULA or reduce the price or claim damages or reimbursement of costs. The remedying of the defect may also take place through the delivery or installation of a new program version or a work-around. If the defect does not or not substantially impair the functionality, then Esdenera is entitled, to the exclusion of further rights in case of defects, to remedy the defect by delivering a new version or an update as part of its version, update and upgrade planning.
3. Defects must be notified in writing with a comprehensible description of the error symptoms, as far as possible evidenced by written recordings or other documents demonstrating the defects. The notification of the defect should enable the reproduction of the error. This shall not affect the statutory obligation of End User to inspect and notify defects.
4. End User's rights in case of defects are limited to 12 months and the period shall begin on the date of access to the Software usage. In respect of the delivery of updates, upgrades and new versions, the period for such deliverables shall in each case begin on the date of respective access.
5. Esdenera's strict liability (independent of fault) pursuant to § 536a sec. 1 BGB (German Civil Code) due to defects already existing at the time of conclusion of the EULA and End User's right to remove the defect itself according to § 536a BGB (German Civil Code) are excluded.
6. Any claims for damages based on warranty claims according to this article are subject to the limitations set forth under article 10.
7. End User's rights in case of defects shall at first hand be limited to the assignment of Esdenera's rights against Microsoft or the third party if the defect is caused by the Azure Marketplace software or another third-party software.
8. Additionally the statutory provisions of the German Civil Code shall apply to defects of the Software.

10. Limitation of Liability, Indemnification

1. Apart from the provisions listed below Esdenera shall not be liable to End User for any damages, claims or costs whatsoever or any consequential, indirect, incidental damages, any lost profits, lost savings or compensation for damages due to defects in the goods.
2. Notwithstanding anything in the contrary in this EULA Esdenera shall be liable without limitation for all damages resulting from Esdenera's willful misconduct or gross negligent behavior and for a breach of an essential contractual obligation, bodily injury, damage to health, fatality, for breach of an independent guarantee or claims based on the German product liability act. An essential contractual obligation is an obligation whose fulfillment is essential to the proper execution of the agreement and on whose fulfillment End User may ordinarily rely. In case of a slight negligent breach of an essential contractual obligation the liability for damages is limited to the typically foreseeable damage.
3. Esdenera's liability as a whole in connection with these conditions shall be limited to 15,000.00 EUR per incident.
4. Proper and regular data backup is End User responsibility. The liability for loss of data shall be limited to the typical cost and effort of retrieving data that would have occurred, if the data had been stored properly and in a risk-adequate manner.
5. Esdenera is not liable for damages caused by third party software components or open source software components, which are marked and licensed as such.
6. All claims become time-barred within 12 months after access, unless Esdenera has fraudulently concealed the defect.

11. Amendment of Agreement

Esdenera may review, change and amend the terms of this EULA at any time valid for future grant of usage.

12. Force Majeure

Any incidents that are unforeseeable and unavoidable despite the application of due care shall, for their duration, relieve Esdenera from its obligation to grant Software functionality.

This applies expressly but not limited to the functionality of the Azure systems, the Software availability on the Azure systems and the production and maintenance of the data connection between the IT systems of End User and the systems that the Software is running on in Azure Marketplace.

13. Term and Termination

1. The term is calculated according to the chosen item forming part of the contractual service agreement.
2. If End User fails to comply with the terms of this EULA End User's right to use the Software will terminate immediately and without notice. All rights of End User on the usage of the Software end at the expiration or termination of this EULA and End User shall immediately stop using the Software.

14. Final Provisions

1. This EULA terminates and supersedes all prior understandings or agreements on the subject matter hereof. Amendments or additions to the EULA must be made in writing to be effective. This shall also apply to amendments of this written form requirement.
2. This EULA shall be governed by the laws of the Federal Republic of Germany. The rules of the UN Sales Convention (United Nations Convention on Contracts for the International Sale of Goods dated 11.4.1980) do not apply. Place of Jurisdiction shall be Hannover, Germany.
3. Should any provision of this EULA be or become invalid, this shall not affect the validity of the remaining terms. The Parties shall in such an event be obliged to cooperate in the creation of terms which achieve such legally valid result as comes closest commercially to that of the invalid provision. The above shall apply accordingly to the closing of any gaps in the EULA.
4. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.