End User License Agreement (EULA)
Version 1.2 – 2023-12-11
IMPORTANT – READ CAREFULLY: These TERMS AND CONDITIONS are a legally binding contract between you and us for the use of the dqMan Software. BY PAYING THE LICENSE FEE ON DQMAN.COM OR DOWNLOADING THE FREE TRIAL VERSION FOR THE SOFTWARE PRODUCT YOU AGREE TO BE BOUND BY THE SUBSEQUENT TERMS AND CONDITIONS.
1. DEFINITIONS
1.1 “Us”, “our”, “we” means the fme AG, Wolfenbütteler Straße 33, 38102 Braunschweig, Germany.
1.2 “You” means the entrepreneur, company, or organization, and its affiliates, that has licensed the SOFTWARE PRODUCT(s) or SOFTWARE by means of a paid license fee respective of Your order or downloading the free trail of the software product.
1.3 “affiliate” means any entity controlling, controlled by or under common control with licence holder (see 1.2), where “control” is defined as the ownership of at least fifty percent (50%) of the equity or beneficial interests of such entity.
1.4 “dqMan software”, hereinafter also “product”, “dqMan” or “software” means the software offered by us at the domain dqman.com and characterized in the system specifications and user guide/instructions available at: docs.dqman.com
1.5 “software” pursuant to 1.3 includes digital information of any form, in particular including the code itself, included or connected media, the system specification and further supplementary material, irrespective of its expression, especially as source code, machine code or assembler code.
1.6 “device” means any physical or virtual computer, terminal or other machine dedicated or usable for processing software in any form, especially running, storing, copying, transmitting or decompiling it.
1.7 “internal network” means any set of computers or other terminals sharing digital information located on or provided by a participating computer, terminal or other machine of the network as long as the network’s nature is private, i.e. the network is solely accessible by the entrepreneur, company, or organization subject to these terms and conditions and its employees (e.g. intranet). Such a network may still be deemed as private, if individual contracting parties (e.g. freelancer, temporary employees, service provider) can access the network, provided that the access is limited to the duration of the contract.
1.8 “other networks” means any network within the meaning of 1.6 without a private nature, i.e. the network potentially is accessible via the internet (e.g. the world wide web) or other communities or groups of people not enumerated within the meaning of 1.6 (e.g. memberships/subscription based, open/public communities)
1.9 “territory” means worldwide but excludes any U.S. embargoed countries and countries where you are prohibited from using the product under mandatory law.
2. Conclusion of contract
2.1 Offering the download of the software by us is to be understood as a binding offer, solely addressed at natural or legal persons or partnerships with legal personality who or which, when downloading the software, act in exercise of their trade, business, or profession and who or which is seated within the territory.
2.2 By filling out the order mask and downloading the software you accept our offer and you confirm that you will use the software exclusively for the purposes of your trade, business or profession, unless you inform us otherwise within a period of three days from the download of the software at least in text form.
2.3 You are obliged to provide the information requested in the order mask in full and truthfully.
2.4 In case of a diverging notification pursuant to 2.2 the contract is null and void and you are obliged to delete the downloaded software without undue delay.
3. Software
3.1 The software is provided by us at the domain dqman.com and can be downloaded by you. The download consists of the software’s object code contained in an .exe file. You are not entitled to claim other versions of the software, especially not the software’s source code.
3.2 You are responsible for providing the system environment of your devices in accordance with the software requirements set forth in the system specifications.
3.3 The download takes place at your risk and cost.
4. Trial period
4.1 For a period of fourteen days after your first download of the software, irrespective of its version or update, you may use the software for free. During this period there is no entitlement to support by you pursuant to 8. After the end of this period the further use of the software is averted by technical protection measures.
4.2 For the period pursuant to 4.1, we shall only be liable for intent and gross negligence. For defects of the software, which shall be provided on a “as is” basis during the trial period, our liability is limited to cases in which we have fraudulently concealed a legal defect or a defect in the software.
4.3 In case you do not longer want to use the software within the period pursuant to 4.1 or after its ending you are obliged to delete the software without undue delay.
4.4 The provisions of section 4. take precedence over the other provisions of these terms and conditions for the trial period. As far as section 4. does not contain special provisions, the other provisions of these terms and conditions apply for the trial period as well.
5. License fees and pre-payment
5.1 In case you want to continue using the software beyond the end of the trial period you are obliged to pay a license fee to receive a product key by us enabling you to such further use. The amount of the license fee can be found in the current version of the list of fees which form part of these terms and conditions: dqman.com/#pricing.
5.2 The fee pursuant to 5.1 is a pre-payment. For payment you may use the purchase methods offered on our website dqman.com. These are offered by the merchant service provider stripe.com. For the use of these services the merchant service provider’s card terms, privacy policies and the respective laws apply.
5.3 Payment shall be deemed to have been effected when we have received the payment.
6. Product key
6.1 We will provide you with the product key within 24 hours after receipt of order. The provision takes place by sending the product key to the e-mail that was provided by you.
6.2 Except as otherwise provided, one product key (license) enables you, as long as you are the sole user of the software, to install and use the software on up to three (3) compatible devices.
6.3 The provision takes place at your risk and cost.
7. Updates and modifications
7.1 As far as required we update the software at our discretion to keep up the original functionality of the software. You will be informed by us within a reasonable period of time before there is an update available.
7.2 It is your obligation to keep the software up to date. If you refuse an update, you shall bear the responsibility for any restricted or missing usability of the software.
7.3 At our own discretion we will modify the software from time to time to a newer version. These modifications may contain new features or an increased usability or stability. You will be informed by us within a reasonable period of time before there is a new version available.
7.4 You may not unreasonably refuse the change to a newer version. If the newer version is not compatible with your devices that shall be deemed as a reasonable refusal. In case you refuse to download a newer version unreasonably, you shall bear the responsibility for any restricted or missing usability of the software.
8. Support
8.1 For the duration of the contract according to section 14. we offer a software support.
8.2 The support only covers the software in its newest and up to date version. The support consists of an online ticket system (https://dqman.com/support/) and a contact mail (support@dqman.com). Support requests will be accepted and/or processed on workdays (Monday-Friday) from 8AM – 5PM GMT+2 (2AM – 11AM EST/GMT-4), irrespective of the channel through which they are received by email. Each support request will be identified by a ticket, which will be communicated to the requester by e-mail. Further enquiries regarding a support request should be made only with reference to a valid ticket. The language used for support requests is English. The current status for a given ticket can be viewed online at any time and after a request has been closed / solved, the inquirer will be notified by e-mail about the closed / solved status of the request.
8.3 Requests will be dealt with in the order in which they are received. You have no claim for a prioritised treatment.
9. License conditions
9.1 We hereby confirm that the software is free of third-party rights with exception to those parts which are licensed under open-source licenses. The open-source license agreements which form part of these terms and conditions do not contain any copyleft effect and are available at: https://docs.dqman.com/third-party-open-source-libraries.
9.2 Us being entitled to provide the license for those parts of the software not covered by the open-source licenses, we hereby grant you the non-exclusive, non-transferable right to use the software limited in time, manner and place and to the purpose of the software laid down in these terms and conditions.
9.3 The license is limited in place to the territory and in time to the contract duration according to section 14. The purpose of the software is determined and limited by the system specification and user guide/instructions. The license is limited in its manner to the installation and use of the software by one user on up to three (3) compatible devices for each purchased product key, specified in detail in the subsequent subsections.
9.4 You may permanently or temporary reproduce, in whole or in part, the software on one device by any means and in text form, insofar as loading, displaying, running, transmitting or storing the software necessitates such reproduction.
9.5 If you purchased a number of product keys and the nature of your internal network prohibits a download of the software on the respective devices of your internal network you may reproduce the software on the number of devices according to section 6.2 and 9.3. That does not entitle you to any permanently or temporary reproduction, in whole or in part, by any means or in any form, that enables the use of the software ON MORE THAN THREE (3) DEVICES PER USER. In no event are you entitled to permanently or temporary reproduce, in whole or in part, the software by any means and in any form into other Networks.
9.6 You have no right for any other reproduction of the software in whole or in part, translation, adaptation, arrangement, or other modifications of the software, as well as the reproduction of the results thereof, the distribution of any copies of the software, including renting or the communication to the public of the software, including making the software available to the public. This shall not affect those acts of exploitation which are permitted by mandatory law.
9.7 You have no right to make a back-up copy, for you will always be allowed to download the software from our website for future use.
9.8 You have no right to decompile the software nor to observe, study or test the functioning of the software. This shall not affect those acts of exploitation which are permitted by mandatory law.
9.9 The software is protected by technical measures against unauthorised use or exploitation. In no event you are entitled to enable or facilitate the elimination or circumvention of the technical software protection measures by any means. In case you are hindered to perform a right to exploitation granted by mandatory law due to an exception or limitation because of technical protection measures you may request us to enable you to enforce your right.
9.10 We are entitled to request the proof of a software use in accordance with the license granted in this section by you, if there is a legitimate interest therein. You are obliged to give full cooperation to us for such an audit.
10. Liability
10.1 We shall be liable only in accordance with the provisions set out in the subsequent subsections.
10.2 We shall be unrestricted liable for damages arising from an intentional or grossly negligent breach of our duties or from an intentional or grossly negligent breach of duty by our legal representatives or persons we use to perform an obligation of us.
10.3 We shall be unrestricted liable for damages from injury to life, body or health due to negligent breach of duty by us or intentional or negligent breach of duty by a legal representative or persons we use to perform an obligation of us.
10.4 We shall be liable for damages arising from the breach of our primary obligations by us, our legal representatives or persons we use to perform an obligation of us. Primary obligations are such basic duties which form the essence of the contract, which were decisive for the conclusion of the contract and on the fulfilment of which the customer may rely. In case we breach primary obligations by simple negligence, then its ensuing liability shall be limited to the amount which was foreseeable by us at the time the respective service was performed.
10.4 For damages arising from loss of data the amount of damages shall be limited up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken by you.
10.5 Damages arising from a defect existing when the contract is entered into are limited to cases the prerequisites of the aforementioned conditions are met unless the defect was fraudulently concealed by us.
10.6 Any more extensive liability of us is excluded on the merits. Sections 327t and 327u of the German Civil Code remain unaffected by this section.
11. Warranty rights
The warranty is limited to the rights by statutory law, unless excluded or limited in particular by sections 10., 12., 13. and 15. We do not offer any further guarantee or warranty.
12. Material defects
12.1 The software provided by us shall be substantially in accordance with the system specification and user guide/instructions. Warranty rights shall be excluded in the case of minor or immaterial deviations from the agreed or assumed characteristics or in the case of just slight impairment of use. Software descriptions shall not be deemed guaranteed unless separately agreed at least in text form.
12.2 Defects of the software must be notified by you in at least text form without undue delay. The notification must include a comprehensible description of the error symptoms, as far as possible evidenced by written recordings, hard copies or other documents demonstrating the defect. The notification of the defect should enable the reproduction of the error. This subsection shall not affect the statutory obligation of you to inspect and notify defects.
12.3 Notification must be addressed to the Support Contact (Subsections 8).
12.4 As far as defects arise due to a faulty download, an incompatible system environment on your devices, a faulty download of an update, a missing update or are not notified without undue delay any warranty rights are excluded. The same shall apply in case you or third parties connected to you amend or edit the software.
12.5 As far as defects arise due to a faulty update or modification warranty rights are limited to the new features of the update or modification in comparison to the previous software versions.
12.6 As far as defects arise due to defective software parts of our suppliers and we do not use the supplier to perform an obligation of us, rather we merely pass on a third-party software part to you, warranty rights shall be limited to the assignment of our equivalent rights against our supplier. This shall not apply, if the defect is caused by at least negligent incorporation of the software part in the software or, if asserting the assigned rights would mean an unacceptable hardship for you.
12.7 Reduction of fees in case of a defect does not occur by operation of law but rather is subject to a declaration of reduction by you in at least text form. Such a declaration is not permissible before the cure procedure in accordance with 12.2, 12.3 failed. The amount of reduction is limited to the period of time between the declaration of reduction and the cure of the defect and to the amount you would be entitled to claim for restitution pursuant to section 812 subsection 1 German Civil Code. we are not in default with a refund resulting from a reduction of fees before the amount is either uncontested or has been finally and non-appealably established.
13. Legal defects
13.1 A legal defect shall be deemed as any third party right not revealed by us in these terms and conditions that prevents you from using the software in accordance with the license conditions.
13.2 If third parties are entitled to rights pursuant to subsection 13.1 and they pursue these, then we shall do everything in our power, in order to defend the software at our own expense against the third-party rights claimed. You shall notify us at least in text form without undue delay of the claiming of such rights by third parties and shall give us all powers of attorney and authorisations which are necessary in order to defend the software against the third-party rights claimed.
13.3 In case you do not notify us without undue delay or do not give us the necessary power of attorney or other authorisation necessary for the cure of the legal defect any warranty rights in regard to this legal defect are excluded.
13.4 In case of duly notification of a legal defect and the necessary empowerments we shall, at our own discretion, either take legal measures to remove the legal defect, which impair the contractual use of the software, or defend the use of the software in accordance with the license conditions against third-party claims, or change or replace the software in such a manner, that it no longer consists a legal defect, provided and to the extent that this does not substantially impair the warranted functionality of the software.
13.5 In case we do not act in accordance with subsection 13.4 within a reasonable period of time, though the prerequisites are met, you shall be entitled to claim reimbursement for your necessary refundable costs incurred by reasonable legal measures against legal defects, provided we are liable pursuant to section 10.
13.6 Subsections 12.3 to 12.7 apply accordingly. The declaration of reduction pursuant to subsection 12.7 is not permissible before the expiry of a reasonable period of time according to 13.4 provided its prerequisites are met.
14. Duration and termination
14.1 The contract’s duration is limited to the period specified in the license order confirmation (e.g. 12, 24 or 36 months), calculated from the date the product key was provided. The contract terminates automatically and license key(s) expire upon the specified expiry date in the license order confirmation.
14.2 The ordinary termination of the contract is excluded. The right to terminate the contract for good cause remains unaffected. An important reason shall be deemed in particular, if a software modifications is reasonably refused.
14.3 Termination declaration must be made in text form at least.
14.4 In case of an effective termination the purchased fee is partially refunded for the outstanding remaining duration of the contract pursuant to subsection 14.1. In calculating the refund, the total fee agreed upon is to be used as a basis and the refund be calculated on a daily basis.
14.5 In any case of termination of the contract you must delete the software without undue delay and confirm deletion upon our request.
15. Statute of limitation
15.1 Your rights are limited to 1 year. The period shall be calculated in cases of defects from the date the product key was provided. In respect of updates or modifications the period shall be calculated from the date the update or modification was first available, provided we notified you in accordance with subsections 7.1 and 7.3., otherwise from the date of the download of the update or modification. In other cases, the statutory commencement of the limitation period shall apply.
15.2 The statutory limitation periods for claims for wilful breach of duty shall remain unaffected by subsection 15.1.
15.3 If a statutory limitation period of less than one year applies (e.g. section 548 subsection (2) German Civil Code) the statutory limitation period shall apply.
16. Confidentiality
16.1 You shall undertake to treat our business secrets and know-how as well as all other information, in particular those of a technical and commercial nature, intentions, experience, findings, designs and documents, forming part of our software, which become known to you during our contractual relation, as confidential vis-à-vis third parties – even beyond the termination of the contract for an reasonable period of time. You shall not make the software accessible to third parties, but rather shall protect it from access by third parties. You shall not make such information to subject of your own commercial exploitation.
16.2 You shall only be entitled to disclose the information pursuant to any subcontractor companies with our prior consent in text form and only if the subcontractors maintain confidentiality vis-à-vis third parties in an equivalent manner as you do.
16.3 The aforementioned obligations shall not apply to such information which was already known to you before it became known in the course of contractual relationship with us, was independently developed by you or otherwise lawfully obtained, or which is general or becomes general knowledge without a breach of these terms and conditions.
16.4 You shall ensure in an appropriate manner that your employees, freelancers, subcontractors and other vicarious agents called upon by you also maintain the aforementioned confidentiality.
16.5 After termination of the contract, all information pursuant to subsection 16.1 shall be returned to us or deleted in full and without undue delay. deletion shall be confirmed upon our request.
17. Contractual Penalty
In case you breach your obligations according to these terms and conditions, you shall pay us a contractual penalty in money. The amount of the contractual penalty shall be determined by us at our reasonable discretion, taking into account all circumstances of the individual case in accordance and may be reviewed by the arbitration court having jurisdiction in accordance with section 20. in the event of a dispute.
18. Data protection
As far as the software itself or the contractual relationship between you and us requires the processing of personal data in any kind or form our data protection declaration in its most recent form which forms part of these terms and conditions apply. The data protection declaration is available at: dqman.com/data-protection-policy/
19. Assignment, Set-off, Right of Retention, Place of performance
19.1 You may not assign any claims arising from transactions with us without our approval at least in text form. Consent may not be unreasonably withheld. The provision of section 354 of the German Commercial Code remains unaffected.
19.2 You have no right to set off, unless the claim for the set off is uncontested or has been finally and non-appealably established.
19.3 A right of retention may only be asserted for rights that are based on this contractual relationship.
19.4 Where no place of performance has been specified by these terms and conditions the place of performance for all obligations arising from this contract shall be deemed Brunswick, Germany.
20. Arbitration agreement
20.1 All disputes arising out of or in connection with this contract or its validity shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law.
20.2 The arbitration tribunal shall be comprised of three arbitrators.
20.3 The seat of the arbitration tribunal shall be in Brunswick, Germany.
20.4 The language of the arbitration proceeding shall be English.
20.5 The law applicable to the merits shall be the Law of the Federal Republic of Germany. International Private Law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG), shall not apply.
21. Scope of application
21.1 These Terms and conditions shall exclusively form part of the contractual agreement between you and us. These Terms and conditions shall apply in accordance with the most recent version and to all subsequent contractual agreements between you and us regarding the software without any need of express reference thereto or agreement thereon at the conclusion of further contractual relations.
21.2 There are no additional amendments or additions at the time of the conclusion of the contract. This contract together with the annexes shall be presumed to be complete and correct the way it is available on our website. The burden of proof to the contrary shall be on you, if you claim any Amendments or additions.
21.3 Declarations by representatives of you require your conformation at least in text form, insofar as there is no power of representation by law.
21.4 We hereby object to any counter confirmation, counter-offer or other reference by you, in particular to your general terms and conditions. Any other terms and conditions, insofar as they are not stipulated in these terms and conditions, shall not apply.
22. Severability clause
Should individual provisions of these terms and conditions be wholly or partially invalid or incomplete, this shall not affect the validity of the remaining provisions of these terms and conditions. In such a case, the parties shall undertake to replace the invalid or missing provision with a valid provision that comes as close as possible to the economic interest and the fair intention of the invalid or missing provision.