End User License Agreement
Last Updated: December 18, 2017
Important – Read Carefully: This End User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity – “You” or “the Licensee”) and RiseML GmbH (“RiseML”) for the use of RiseML Software.
ASSUMING YOU HAVE PURCHASED OR SUBSCRIBED TO THE HARDWARE PRODUCT, WHICH CONTAINS THE SOFTWARE, OR THE STANDALONE SOFTWARE LICENSE OR A SUBSCRIPTION TO THE SOFTWARE (“SOFTWARE”), FROM RISEML (“RISEML”) OR A RISEML AUTHORIZED PARTNER, DOWNLOADING, INSTALLING, ACCESSING OR USING RISEML SOFTWARE CONSTITUTES THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT AND ACCEPT IT, AND THAT YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IN ANY EVENT, RISEML DOES NOT REQUIRE THE DECLARATION OF ACCEPTANCE TO BE RECEIVED AT ITS PREMISES. RISEML IS WILLING TO LICENSE, AND NOT SELL THIS SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU PURCHASED THE SOFTWARE FROM A RISEML AUTHORIZED PARTNER OR FROM RISEML AND THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT ACCOMPANYING THE PRODUCT AND/OR AVAILABLE AT THE TIME OF YOUR ORDER (COLLECTIVELY, THE “AGREEMENT”). IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, THEN RISEML IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU SHOULD TERMINATE THE DOWNLOAD AND/OR INSTALLATION PROCESS, IMMEDIATELY CEASE AND REFRAIN FROM ACCESSING OR USING THE SOFTWARE, AND DELETE ANY COPIES YOU MAY HAVE. YOU MAY RETURN THE ENTIRE HARDWARE PRODUCT AND SOFTWARE AND WRITTEN MATERIALS (INCLUDING ANY USB, HARD DRIVE PACKAGE, AND ANY WRITTEN MATERIALS).
If this Agreement is translated into a language other than English and there is a conflict of terms between the English and the other language, the English version will prevail. The Licensee should keep a copy of this EULA for his records. The latest version of this EULA appears in its entirety at https://riseml.com/eula. RiseML reserves the right, in its sole discretion, to make reasonable amendments to this Agreement from time to time provided that disputes arising hereunder will be resolved in accordance with the Terms of the Agreement in effect at the time the dispute arose. RiseML will inform the Licensee after each amendment in due way and the Licensee should review the published Agreement from time to time to become aware of changes. Material changes to these terms will be effective upon the Licensee’s first use of the Software with actual knowledge of such change. The Licensee’s use of the Software after the amended Agreement becomes effective constitutes the Licensee’s acceptance of the amended Agreement. If the Licensee does not accept amendments made to this Agreement, then this license will be immediately terminated pursuant to the section Termination.
“Automatic Renewal” means a feature that provides for the renewal of a license at the end of a license Term without the need for further notification.
“Licensee” means the Licensee, or the company, organization, or entity the Licensee represent as his authorized legal representative.
“Data” means electronic data recorded or manipulated by the Hard- and Software and stored as part of the RiseML Product or RiseML Service.
“To Decompile” means to reverse engineer, decompile, or disassemble the Software for the purpose of achieving interoperability with other computer programs according to section 69 e UrhG.
“Device” or “Node” means a single machine whether physical or virtual.
“Documentation” means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) pertaining to the Software and made available by RiseML with the Software in any manner (including on USB, hard drive, or via online access).
“Entrepreneur” means any natural person, legal entity or partnership, having the legal capacity that is not engaged in personal or familial usage in ordering or receiving Software of RiseML while performing its commercial or independent professional or other work.
“External User” means any individual (not an organization) using the RiseML Software who is not: (i) one of the Licensee’s full-time, part-time or temporary employees; or (ii) any temporary personnel or an independent contractor on assignment at the Licensee’s place of business or work-site.
“Fee” means the subscription price or the license fee paid for Software to RiseML.
“RiseML Product” means one of RiseML’ proprietary products including the related marketing materials, Documentation, EULAs, and other supplemental materials.
“RiseML Service” means services to be performed by RiseML staff.
“On-Premise Installation” means use of the Software in object code by installing one instance of the Software on one Device.
“Production Use” means the use of the Software in object code form via On-Premise Installation, solely for internal production purposes in support of one Site.
“Software” means RiseML software and associated documentation that accompanies this EULA, which includes the associated media and RiseML internet-based services.
“Site” means the discrete geographic location where the Licensee first installs or uses the Software.
“Term” means the term of the license obtained by the Licensee for Production Use.
“Time Clocks” means any time clocks, copy-protection mechanisms, or other security devices embedded in the Software which may deactivate the Software after the expiration of any applicable subscription or license Term. Time Clocks may require an Internet connection and transfer transmission of Data captured to RiseML.
“Upgrades” of the Software means any modifications, enhancements, revisions thereto. Classification of such modification as an Upgrade is at RiseML’ sole discretion.
“User” or “End User” means any individual or entity logging in on a Node and using the Software that is not an External User.
“Volume” means the volume of Users allowed by the license obtained by the Licensee for Production Use.
“Volume Checking” means any code, copy-protection mechanisms, or other security mechanisms embedded in the Software which may deactivate the Software after the Volume is used up. Volume Checking may require an Internet connection and transfer transmission of Data captured to RiseML.
Licensing Terms and Conditions
Nothing in this EULA shall limit the Licensee’s right according to sections 69 c no. 3, 69 d para. 2 and 3 and 69 e of the German Copyright Act (UrhG). If the Licensee wants to Decompile the Software, the Licensee shall contact RiseML before doing so and request the provision of the respective information necessary for the achievement of such Decompilation. If RiseML supplies such information without undue delay, the Licensee shall be allowed to Decompile the Software.
2. Grant of License
As and for so long as the Licensee complies with all of the terms of this EULA, RiseML grants the Licensee the non-exclusive license to (a) install and use one copy of the Software for Production Use in the country where the Software is first obtained limited to the Term and Volume as agreed on and (b) use the Documentation that accompanies the Software for internal, non-commercial reference purposes only. The license is subject to the Licensee fulfilling the technical requirements as specified in the Documentation.
This granted license does not include any exploitation rights, in particular, but not limited any right of reproduction (section 16 UrhG), right of distribution (section 17 UrhG), right of exhibition (section 18 UrhG), right of recitation, performance, and presentation (section 19 UrhG), right of making works available to the public (section 19a UrhG), right of broadcasting (section 20 UrhG) or any right of adaptations and transformations (section 23 UrhG). It is strictly prohibited to implement RiseML Software in any other hard- or software product without prior written consent by RiseML.
3. Reserved Rights
The Licensee acknowledges and agrees that the Software is a proprietary product of RiseML protected by copyright and other applicable intellectual property laws and treaty provisions. The Licensee further acknowledges and agrees that the entire right, title, and interest in and to the Software including associated intellectual property rights, shall remain with RiseML. RiseML retains all rights not expressly granted to the Licensee in this EULA.
The software is licensed. The authorship is not transferred.
4. Licensing Conditions
RiseML Software is ordered online and provided on a subscription basis in different plans with the following conditions:
|Monthly Fee||Free||US$ 249 per node||Custom Pricing|
|Termination||Monthly||Monthly||Monthly or Annually|
4.1 Term: Term of the License shall be 1 (one) month with Automatic Renewal unless terminated within 14 days to the end of the Term.
4.2 Fee: Depending on the agreed subscription plan Licensee has to pay to RiseML a monthly subscription Fee as specified in this Sec. 4 at the beginning of each month.
4.3 Volume: Depending on the agreed subscription plan License is limited to Volume as specified in this Sec. 4.
The Licensee acknowledges that registration or activation may be required in order for the Licensee to utilize the full benefits of the Software. If the Licensee is not registered as the End User, the Licensee has no license to use the software and the limited warranty in this End User License Agreement does not apply.
6. No Rental or Commercial Hosting
The Software is licensed for Production Use only. The Licensee may only rent, lease, lend, or provide commercial hosting services with the Software upon RiseML’s prior written consent.
7. Data Capture And Use
The Licensee agrees that RiseML may collect and utilize technical information gathered as part of the Software support services and licensing model that may be provided to the Licensee. Data captured in this form will only be used for Volume Checking, Time Clocks, and to improve RiseML Products and/or provide customized services to the Licensee and will not be disclosed or disseminated to third parties except in an anonymized form.
8. Archival Or Backup Copy, Backup Of Data
8.1 The Licensee may make a reasonable number of backup copies of the Software, provided the Licensee’s backup copies are not installed or used for other than archival purposes.
8.2 The setup of a functional hardware and software environment for the Software shall be solely in the Licensee’s responsibility. The same shall apply to regular data backup.
9. No Volume Circumvention
Usage of RiseML is subject to Volume limits, including, for example, the quantities specified in a Contract. Unless otherwise specified, (a) a quantity in an invoice refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual and (c) automation software may not be used to queue multiple User requests from different Users as one User. If the Licensee exceeds a contractual usage limit, RiseML may work with the Licensee to seek to reduce usage so that it conforms to that limit. If, notwithstanding RiseML’s efforts, the Licensee is unable or unwilling to abide by a contractual usage limit, the Licensee will execute an upgrade for additional Volume limits RiseML and/or pay any invoice for excess usage.
10. Restrictions on Certain Software
Software identified as demo, evaluation, and Beta versions may not be sold, bartered, or otherwise transferred. Such Software may not be used for any purpose other than the Licensee’s testing or evaluation unless specified otherwise pursuant to a separate agreement signed by both the Licensee and RiseML.
11. Time Clocks, Volume Checks
11.1 RiseML’s default licensing is non-perpetual with a specified Term for the Software licensed. If the Licensee has licensed the Software subject to this EULA for a Term shorter than a perpetual license, the Licensee acknowledges that the Software may be delivered to the Licensee with embedded Time Clocks. The Licensee agrees that Time Clocks are not considered a defect of the Software and the Licensee releases RiseML from any and all claims, however characterized, arising from or related to Time Clocks or their operation.
11.2 RiseML’s default licensing is Volume limited. If the Licensee has licensed the Software subject to this EULA for a certain Volume, the Licensee acknowledges that the Software may be delivered to the Licensee with embedded mechanisms for Volume Checking. The Licensee agrees that Volume Checking is not considered a defect of the Software and the Licensee releases RiseML from any and all claims, however characterized, arising from or related to Volume Checking or its operation.
11.3 The Licensee agrees that RiseML retrieves information regarding the Licensee’s Production Use by Volume Checking and Time Clocks, as this is an essential part of the license Fee and limitation of the Licensee’s license.
12.1 Internal: the Licensee may transfer the Software and the EULA to a different Device at the same Site, provided the Licensee completely removes the Software from all prior Devices. In order to accomplish these transfers, the Licensee may need to contact RiseML.
12.2 External: the Licensee may not transfer the Software and license granted under this EULA to a third party without RiseML's prior written consent. If such consent is obtained, the Licensee may permanently transfer the Software and the license granted under this EULA to such third party provided the Licensee does not retain any copies. The recipient of such transfer must agree to all terms and conditions of the EULA. Any purported sublicense, assignment, transfer, or encumbrance is void without RiseML's prior consent.
The Licensee may not use any Software identified as an Upgrade unless the Licensee is properly licensed to use Software which RiseML has identified as being eligible for an Upgrade. After installing an Upgrade, the Licensee may use the original Software product that was eligible for an Upgrade provided that at any one time the Licensee uses only the upgraded Software or the prior Software version subject to the Upgrade.
14. No Extension Of Capabilities
The Licensee may develop his own applications that interoperate or integrate with the Software. RiseML prices its Software, among other factors, based on capabilities that we expose to the Licensee. The Licensee may not extend the Software to enable or unlock capabilities of the Software not specifically identified by RiseML as forming part of the specified End User functionality.
If the Licensee breaches the terms and conditions of this EULA, RiseML may terminate this EULA without prejudicing any of its other rights. In such an event, the Licensee must destroy and remove all copies of the Software from the Licensee’s Device(s). Sections 1, 4, 12, 16, 17, 18, 19, 20, 21, and 22 specifically survive termination.
16. Limited Warranty
16.1 Unless expressly agreed otherwise, the Software provided by RiseML shall be in line with the current state of the art technology and shall conform to all relevant product information and specifications provided by RiseML, including those in the Documentation. RiseML does not warrant that the Software under the agreement will be fit for purposes beyond the fulfillment of RiseML’ obligations under the agreement.
16.2 The Licensee is advised that based on the current state of the art technology program errors cannot be excluded with complete certainty in spite of exercising greatest conscientious care and diligence. The Parties acknowledge that RiseML Products are inherently complex and may not be completely free of errors. The following errors are excluded from RiseML’ warranty: (a) insignificant defects, including but not limited to errors that can be easily corrected and will not show up as a performance defect and (b) defects discovered in any RiseML Product that has been modified, altered, or enhanced by anyone other than RiseML itself.
16.3 If the Licensee is an Entrepreneur and RiseML has provided the Licensee with the Software against payment and in perpetuity, defects in the provided Software shall be rectified by RiseML as follows, provided the Licensee has notified RiseML of the respective defect in accordance with section 377 German Commercial Code (HGB):
- Notified defects shall be rectified by RiseML's choice through the elimination of the defect ("repair") or provision of a defect-free Software ("substitute delivery"). Costs for such rectification shall be borne by RiseML.
- If the defects in the Software cannot be rectified within a reasonable period or if repair and substitute delivery can be deemed to have failed for other reasons, then the Licensee may, at his choice, reduce the Fee or - if the defects are not immaterial rescind the agreement.
- Any damage claims by the Licensee or claims for expenses incurred in vain ("Ersatz vergeblicher Aufwendungen") that arise from such defects shall be governed exclusively by section 18.
16.4 If RiseML has provided the Licensee with the Software against payment but for a limited Term, defects in the Software, shall be rectified by RiseML within a reasonable period after notification of the defect. The rectification of defects shall be effected, at RiseML’s choice, by way of repair or substitute delivery free of charge. The Licensee’s right to reduce the Fee for the time the defect persists remains unaffected. The Licensee is only entitled to an extraordinary termination of the agreement due to the failure to grant use in accordance with the agreement if RiseML has been given sufficient opportunity to rectify the defect and such attempt has failed.
16.5 It shall be assumed that the repair or substitute delivery has failed only if RiseML has been given sufficient opportunity to effect a repair or substitute delivery without achieving the desired result or if the repair or substitute delivery was unjustifiably refused by RiseML. If rectification of a defect in the form of repair or subsequent delivery is only possible for RiseML at unreasonable expenses, RiseML may refuse to rectify the defect and refer the Licensee to his right to rescind or terminate the Agreement.
16.6 In no event shall the Licensee be entitled to demand the source code for the Software in regard to any defects.
16.7 The Licensee shall notify RiseML without undue delay if a third party asserts claims against the Licensee based on infringement of intellectual property rights by the Software ("Rechtsmangel"). Should there be any information of such, whether in written documents or correspondence or in other forms, the Licensee shall provide these to RiseML without undue delay. In case of legitimate claims by third parties, RiseML will indemnify the Licensee of the costs that originate from the assertion of such third party's claims (including reasonable attorney fees, limited to the statutory remuneration of attorneys if applicable). Furthermore, RiseML liability for loss of profits due to such defects is limited to five times the annual Fee amount, except where the defects were caused by the intentional or grossly negligent behavior of RiseML.
16.8 If the Licensee is an Entrepreneur and the Software has been provided in perpetuity, his warranty claims for defects of the Software lapse after one year from the statutory commencement of the limitation period, except in cases of intentional behavior of RiseML. The statutory limitation pursuant to section 479 of the German Civil Code (BGB) remains unaffected hereby.
17. High Risk Activities
The Software is not fault tolerant and is not designed, manufactured, or intended for use or resale as control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Accordingly, RiseML and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
18. Limitation of Liability
Notwithstanding the legal nature of the relevant claim, the following shall apply to the Licensee’s damage claims and claims for expenses incurred in vain ("Ersatz vergeblicher Aufwendungen"):
18.1 RiseML shall be liable for any of the Licensee’s damages resulting from grossly negligent or intentional behavior of RiseML, which are due to culpable injury to life, body, and health, which arise due to the assumption of a guarantee or according to the Product Liability Act. In all other cases, RiseML’s liability for damages is limited to the infringement of material obligations of the agreement. Material obligations are only such obligations which fulfillments allow the proper execution of the agreement in the first place and where the Licensee may rely on the compliance with these obligations. RiseML’s liability for the loss of data is limited to the typical expenditures required for the restoration thereof, which are normal and typical if security copies have been made. Reference is made to the Licensee’s obligation for regular data backups according to section 8 of this EULA.
18.2 RiseML’s liability in case of negligent infringement of material obligations of the agreement by RiseML shall be limited to foreseeable damages which are typical for this type of contract.
18.3 A strict liability of RiseML for defects existing at the time of entering into this EULA pursuant to section 536 a para. 1, alternative 1 German Civil Code (BGB) is hereby expressly excluded.
18.4 All claims against RiseML for damages shall be statute barred 6 months after delivery, in case the Licensee is an Entrepreneur. This shall not apply to any claims in tort.
18.5 The foregoing limitations of liability also apply with regard to all RiseML’ representatives, including but not limited to its directors, legal representatives, employees, and other vicarious agents.
19. Restrictions In Use
19.1 The Licensee will use commercially reasonable efforts to prevent unauthorized access to or use of Services and Data, and notify RiseML promptly of any such unauthorized access or use and use Services and Data only in accordance with this Agreement, Documentation and applicable laws and government regulations.
19.2 The Licensee will not (a) make any Service or Data available to, or use any Service or Data for the benefit of, anyone other than the Licensee or Users, unless expressly stated otherwise, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Data, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to capture and store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (e) attempt to gain unauthorized access to any Service or Data or its related systems or networks, (f) permit direct or indirect access to or use of any Service or Data in a way that circumvents a contractual usage limit, or use any of RiseML Services to access or use any of RiseML’s intellectual property except as permitted under this Agreement, (g) copy a Service or any part, feature, function or user interface thereof, (h) copy Data except as permitted herein, (i) frame or mirror any part of any Service or Data, other than framing on the Licensee’s own intranets or otherwise for the Licensee’s own internal business purposes, (j) access any Service or Data in order to build a competitive product or service or (k) reverse engineer any Service (to the extent such restriction is permitted by law). Any use of the Services in breach of this Agreement, by the Licensee or Users that in RiseML’ judgment threatens the security, integrity or availability of RiseML Services, may result in RiseML’ immediate suspension of the Services, notwithstanding that RiseML will use commercially reasonable efforts to provide the Licensee with notice and an opportunity to remedy such violation or threat prior to such suspension.
20. Statutory Consumer Rights
Nothing in this EULA is meant to contravene statutory rights that consumers may have pursuant to local law.
21. Dispute Resolution And Governing Law
21.1 Let's Try To Sort Things Out First. RiseML wants to address the Licensee’s concerns without needing a formal legal case. Before filing a claim against RiseML, the Licensee agrees to try to resolve the dispute informally by contacting firstname.lastname@example.org. RiseML will try to resolve the dispute informally by contacting the Licensee via email. If a dispute is not resolved within 15 working days of submission, the Licensee or RiseML may bring a formal proceeding.
21.2 Unless expressly prohibited by local law, the Agreement and warranties are controlled by and construed under the laws of Germany, notwithstanding any conflicts of law provisions; and the German courts in Munich shall have exclusive jurisdiction over any claim arising under the Agreement or warranties. The UN Convention on Contracts for the International Sale of Goods shall be explicitly excluded.
The provisions of this EULA shall be deemed to be separable and the invalidity of any provision hereof shall not affect the validity of the remainder of this Agreement.
Should the Licensee have any questions regarding this EULA, please contact the RiseML authorized partner serving the Licensee, or write to: RiseML GmbH, Legal, Buchholzer Strasse 2, 10437 Berlin, Germany.
24. Re-Distribution Of RiseML Products
If the Licensee is interested in re-distributing RiseML Products either internally in his organization or externally, please contact us at: email@example.com.