By using the cloudplan Software (“Software”) you agree to the terms of this End User License Agreement (“EULA”) between you and cloudplan GmbH (“cloudplan” or “we”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE SOFTWARE AND YOU MAY CHOOSE TO PROMPTLY RETURN THE PRODUCT FOR A REFUND OF THE PRODUCT PURCHASE PRICE BY CONTACTING CLOUDPLAN AT THE ADDRESS BELOW


This EULA governs your use of the Software. This EULA gives you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under this EULA will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this EULA may not apply to you.


THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SOFTWARE AND TO ENTER INTO THIS EULA. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE SOFTWARE.


AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE SOFTWARE. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SOFTWARE.


AS DESCRIBED BELOW, SECTION 8 DESCRIBES IMPORTANT LIMITATIONS OF THE SOFTWARE AND RELATED SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.


License. Subject to the terms of this EULA, cloudplan grants to you a limited and nonexclusive license (without the right to sublicense) to execute one (1) copy of the Software, in executable object code form only, solely on the product that you own or control and solely for use in conjunction with the product for your personal, non-commercial purposes.


Restrictions. You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Software or make the Software available to any third party, (b) copy or use the Software for any purpose other than as permitted in Section 1, (c) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Software (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact cloudplan and provide cloudplan an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the Software to any third party without prior written approval of cloudplan for each such release.


Automatic Software Updates. cloudplan may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Software and related services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the Software. If you do not cease using the Software, you will receive Updates automatically.


Ownership. The Software and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of cloudplan and its licensors. cloudplan and its licensors reserve all rights in and to the Software not expressly granted to you in this EULA. The Software (and all copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. All suggestions or feedback provided by you to cloudplan with respect to the Software shall be cloudplan’s property. cloudplan may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that cloudplan does not waive any rights to use similar or related ideas previously known to cloudplan, developed by its employees, or obtained from other sources.


Open Source. Certain items of software included with the Software are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, cloudplan makes such Open Source Software, and cloudplan’ modifications to that Open Source Software, available by written request to cloudplan at the email or mailing address listed below.


Term and Termination. This EULA and the license granted hereunder are effective on the date you first use the Software and shall continue for as long as you own the Software, unless this EULA is terminated under this section. cloudplan may terminate this EULA at any time if you fail to comply with any term(s) hereof. You may terminate this EULA effective immediately upon written notice to cloudplan. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Software, but the terms of Sections 2 through 18 (inclusive) will remain in effect, after any such termination.


Warranty Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLOUDPLAN PROVIDES THE SOFTWARE “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. CLOUDPLAN DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE SOFTWARE. CLOUDPLAN MAKES NO WARRANTY THAT THE SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.


NO WARRANTY WILL APPLY IF THE SOFTWARE (I) HAS BEEN ALTERED, EXCEPT BY CLOUDPLAN; (II) HAS NOT BEEN INSTALLED, OPERATED, REPAIRED, OR MAINTAINED IN ACCORDANCE WITH INSTRUCTIONS SUPPLIED BY CLOUDPLAN IN THE ENCLOSED DOCUMENTATION; OR (III) HAS BEEN SUBJECTED TO UNREASONABLE PHYSICAL, THERMAL OR ELECTRICAL STRESS, MISUSE, NEGLIGENCE, OR ACCIDENT. IN ADDITION, CLOUDPLAN SOFTWARE IS NOT DESIGNED OR INTENDED FOR USE IN (I) THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF ANY NUCLEAR FACILITY, (II) NAVIGATING OR OPERATING AIRCRAFT; OR (III) ANY LIFE-SAVING, LIFE-SUPPORT OR LIFE-CRITICAL MEDICAL EQUIPMENT, AND CLOUDPLAN DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USES. CUSTOMER IS SOLELY RESPONSIBLE FOR ASSESSING THE SUITABILITY OF THE PRODUCT FOR USE IN PARTICULAR APPLICATIONS AND BACKING UP ITS PROGRAMS AND DATA TO PROTECT AGAINST LOSS OR CORRUPTION. CLOUDPLAN WARRANTY OBLIGATIONS DO NOT INCLUDE INSTALLATION SUPPORT. YOU USE ALL PRODUCT INFORMATION AND THE SOFTWARE AT YOUR OWN DISCRETION AND RISK.


Limitation of Liability. Nothing in this EULA and in particular within this "Limitation of Liability" clause shall attempt to exclude liability that cannot be excluded under applicable law. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) CLOUDPLAN BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA, LOST PROFITS OR LOST REVENUE, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR RELATING TO THE SOFTWARE, EVEN IF CLOUDPLAN KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) CLOUDPLAN’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO CLOUDPLAN OR CLOUDPLAN’S AUTHORIZED RESELLER FOR THE SOFTWARE AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. CLOUDPLAN DISCLAIMS ALL LIABILITY OF ANY KIND OF CLOUDPLAN’ LICENSORS AND SUPPLIERS.


Specific Provisions and Exceptions for Users Residing in Germany and Austria
If you obtained the Software in Germany or Austria, and you usually reside in such country, then the sections „Warranty Disclaimer“ and  „Limitation of Liability“ do not apply and shall be replaced in its entirety by the following provisions:

cloudplan warrants that the Software provides the functionalities set forth in the documentation for the Software for the limited warranty period following receipt of the Software when used on the recommended hardware configuration. As used in this section, "limited warranty period" means one (1) year if you are a business user and two (2) years if you are not a business user. Non-substantial variation from the agreed upon functionalities shall not be considered and does not establish any warranty rights.
  
cloudplan´s statutory liability for damages shall be limited as follows: (i) in respect of damages caused by a slightly negligent breach of a material contractual obligation cloudplan shall be liable only up to the amount of damages as typically foreseeable and (ii) cloudplan shall not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation. This limitation of liability shall not apply to any mandatory statutory liability, in particular, to personal injury, liability under the German Product Liability Act, liability for assuming a specific guarantee or liability for damages caused by intentional or gross negligent conduct of cloudplan. You are required to take all reasonable measures to avoid and reduce damages, in particular to make backup copies of the Software and your computer data. The liability of cloudplan for damages caused by loss of data and/or programs lost by slight negligence is limited to the typical cost of restoration, which would have been incurred in case of regular and appropriate data backup and data protection by you. This section also  applies to any breaches of duty by cloudplan´s vicarious agents.


Confidentiality. "Confidential Information" shall mean the Software and all other information disclosed to you that cloudplan characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this EULA, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of cloudplan. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify cloudplan in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and will cooperate with cloudplan in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify cloudplan prior to such disclosure to allow cloudplan an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with cloudplan in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.


For U.S. Government End Users. The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Software is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.


Export Compliance. The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Software and related technology, as may be required. You will indemnify and hold cloudplan harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.


Governing Law; Venue. The courts in some countries will not apply German law to some types of disputes. If you reside in one of those countries, then where German law is excluded from applying, your country’s laws will apply to such disputes related to these terms. Otherwise, you agree that this EULA, and any claim, dispute, action, cause of action, issue, or request for relief relating to this EULA, will be governed by the laws of Germany, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this EULA must be brought in a federal or state court located in Hamburg, Germany and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that cloudplan may seek injunctive relief in any court having jurisdiction to protect its intellectual property or Confidential Information.


Assignment. Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect.


Notices. Any notice to you may be provided by email to the address that you registered with cloudplan.


Severability. If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.


Waiver. All waivers by cloudplan will be effective only if in writing. Any waiver or failure by cloudplan to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.


General. The Software is deemed irrevocably accepted upon your use of the Software. cloudplan will have no responsibility to provide maintenance or support services with respect to the Software. The parties are independent contractors. You acknowledge that the Software contains valuable trade secrets and proprietary information of cloudplan, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to cloudplan for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA. Except as otherwise provided in this section, no amendment to this EULA will be valid unless it is in writing hand-signed by the parties.


Questions or Additional Information. If you have questions regarding this EULA, please contact cloudplan (support@cloudplan.net).