1.1 These software license terms (hereinafter referred to as [the] License) apply to the COSMO CONSULT ISV software (cc|environmental services and cc|print and packaging), including user documentation, and for all related updates and further developments (hereinafter referred to as [the] Software) supplied to a customer (hereinafter referred to as [a/the] Licensee) by COSMO CONSULT SI GmbH (hereinafter referred to as COSMO CONSULT).
1.2 The conclusion of the License relating to the provision or the download of the Software or the installation, previous installation or the use of the Software by the Licensee shall constitute acceptance of these software license terms by the Licensee.
1.3. The agreements herein apply for both subscription based licensing and perpetual licensing.
2.1 On the grounds of this agreement, the Licensee shall acquire from COSMO CONSULT the non-exclusive and non-assignable right to use the Software in connection with the commercial operations of its company and/or those of any company or companies in which the Licensee holds more than a 50% interest (hereinafter referred to as [the] Affiliated Companies).
2.2 The Licensee shall be permitted to use only that number of copies of the Software simultaneously, and/or to provide the Software only to that number of individuals, equivalent to the number of Licenses to the Software acquired.
2.3 The source code shall not be covered by this agreement.
2.4 The Licensee shall have the right to duplicate the Software in order to install it within the company’s network and on an unlimited number of workstations and to load and enable the Software to be run.
3.1 Other than the usufruct rights assigned under Point 2 above, the Licensee shall be prohibited from providing the Software to any third parties in the absence of more comprehensive rights assigned and specifically authorized in writing by COSMO CONSULT.
3.2 Any modifications or changes to the Software performed by the Licensee are only permitted in mandatory, legally prescribed cases for the purposes of addressing errors (bug fixing) or in order to establish interoperability with other computer programs. The Licensee shall be required to inform COSMO CONSULT in writing and without delay of any need to make modifications or changes in this connection. Moreover, the Licensee commits to appoint COSMO CONSULT to undertake the changes or modifications and shall in return pay the same a commensurate amount. In the event that COSMO CONSULT fails to accept the assignment within two weeks and on reasonable terms, the Licensee shall be authorized to either itself undertake the changes or modifications or to appoint a third party to do so.
3.3 The Licensee shall not be authorized to decompile the object code in order to obtain the source code nor to engage in reverse engineering or decompilation other than in cases in which this is necessary in order to establish interoperability or to ensure that bugs are fixed in as far as COSMO CONSULT fails to undertake the changes in return for a commensurate fee despite the same being informed in writing of the existing need therefor. Otherwise, the provisions set out under Article 40e of the Austrian Copyright Act (Urhebergesetz) shall apply.
3.5 The Licensee shall not be authorized to prepare copies or parts thereof of the user documentation or to provide such to third parties.
3.6 In as far as the Licensee is authorized to exchange hardware, the same commits to completely and irrevocably remove the Software from the exchanged devices.
3.7 The Licensee shall ensure that copies of the Software are stored safely and securely and take all necessary precautions in order to prevent the said Software falling into the hands of third parties. In this context, the Licensee commits to maintain a full and current list of all copies of the Software in its possession and their precise storage locations. This list is to be provided to COSMO CONSULT on request for inspection purposes.
3.8 The Licensee shall be obligated to refrain under any circumstances from removing or manipulating the copyright notices and the certification marks of COSMO CONSULT on the copies of the software and/or the user documentation.
4.1 The Licensee shall be obligated to inspect the Software and the user documentation with regard to its completeness and functionality, as defined by Article 377 of the Austrian Commercial Code (UGB), immediately after receipt and within a period of five working days.
4.2 In as far as deficiencies or defects are identified in the course of the inspection as set out under Point 4.1, the Licensee shall be obligated to issue a written complaint to COSMO CONSULT without delay and clearly specifying the defect or deficiency identified.
5.1. For perpetual licensing: The rights of the Licensee to use the Software shall be for an indefinite period of time but may be terminated by COSMO CONSULT with immediate effect should the Licensee or an Affiliated Companies fail to comply with the terms of this agreement.
5.2. For subscription based licensing: This agreement will remain in effect until the expiration or termination of Licensee’s subscription, whichever is earliest. Customer may terminate this agreement at any time by contacting COSMO CONSULT or the reselling partner. The expiration or termination of this agreement will only terminate the right to use the software product.
6.1 The Licensee acknowledges that it is currently not technically possible to develop computer programs which operate error-free under all application conditions. COSMO CONSULT can therefore only guarantee that the Software essentially complies with the specification requirements and performs the functions described therein in the specified system environment. COSMO CONSULT provides no additional assurances, in particular with regard to the Software meeting other requirements of the Licensee, or offers interoperability with other programs in the configuration selected.
6.2 In the event of claims covered by the warranty, COSMO CONSULT shall be obligated to re-deliver or modify the Software as it sees fit. In as far as these options are not appropriate for the purposes of rectifying the deficiency or defect and in cases where two attempts to rectify the issue have failed or are not carried out within a reasonable period of time, the Licensee shall have the right to reduce the license fee. The Licensee shall not be authorized to assert any additional claims.
6.3 The Licensee shall forfeit all warranty rights in the event of their independently changing or modifying the Software.
6.4 COSMO CONSULT guarantees that the Software is free of any third-party copyrights which constrain or prohibit the contractually agreed usage of the Software. The parties hereto shall inform each other without delay and in writing in the event of any claims pertaining to the infringement of third-party copyrights being asserted against them. These warranty terms shall not apply in the event of any infringement of third-party copyrights as a result of any acts on the part of the Licensee other than the contractually conform use of the Software or as a result of any modifications to or further development of the Software (also in combination with the work of third parties) undertaken independently by the Licensee.
6.5 The deadline for any claims asserted by the Licensee in connection with any infringement of warranty-related assurances shall be 12 months from the day upon which the software is shipped irrespective of the obligation to inspect the Software as defined under Point 4.1 above. The Licensee shall always bear the burden of proof with regard to establishing that a software error is attributable to a deficiency or defect.
6.6 Regardless of the legal grounds, COSMO CONSULT shall accept no liability for the integrity of the Software or for any losses incurred as a result of the Software beyond the obligations defined under the abovementioned warranty obligations and beyond the scope of the Austrian Product Liability Act (Produkthaftungsgesetz). Any such claims on the part of the Licensee, such as any claims relating to loss of earnings, losses incurred on the grounds of third-party claims, indirect and consequential losses as well as damage to or the loss of stored data, are hereby excluded in as far as the Licensee does not establish that COSMO CONSULT is accountable for such losses on the grounds of malicious intent or gross negligence. In cases of gross negligence, the liability of COSMO CONSULT (with the exception of personal injury and atypical losses) shall in all cases be limited to the net purchase price paid by the Licensee for the Software. All claims on the part of the Licensee shall expire unless legally asserted within one year of their becoming aware of the loss and the cause.
6.7 COSMO CONSULT shall accept no liability for changes or other modifications to the Software undertaken by the Licensee itself or by third parties. Furthermore, COSMO CONSULT shall not be liable for any losses as a result of external factors, including other programs or as a result of the integration of the Software in the hardware and software environment of the Licensee or due to the interaction between the Software and this environment.
7.1 The Licensee commits to respect and maintain the confidentiality of the Software and the user documentation, as well as the expertise made available by COSMO CONSULT, and other commercial secrets (hereinafter referred to as [the] Confidential Information), refraining in particular from making this available to third parties, and to only use the same in the context of this agreement.
7.2 For this purpose, the Licensee commits to optimally store all documentation and data media which contain the Confidential Information of COSMO CONSULT, to require all personnel with access to the said Confidential Information to respect the confidentiality thereof, and to provide evidence thereof. The Licensee commits, in particular, not to make the Software or parts thereof available to third parties, neither as the object code or the source code, nor any associated documentation.
7.3 Confidentiality shall not apply to any information which was committed to writing prior to the conclusion of this agreement which was already in the public domain on the grounds of publications by third parties without the involvement of the Licensee. The burden of proof with regard to the applicability of this exception shall be borne by the Licensee.
8.1 Applicable law
This agreement shall be governed exclusively by Austrian Law under exclusion of the conflict rules as well as the UN Convention on Contracts for the International Sale of Goods.
Any and all legal disputes arising out of this agreement, including questions pertaining to its formation, validity, termination or nullification, shall be settled solely before a competent court of law in the district where COSMO CONSULT has its registered offices.
8.3 Legal costs
Any legal fees associated herewith shall be borne exclusively by the Licensee.
8.4 Written form requirement
This agreement is conclusive. No verbal side agreements, regardless of their form, exist at the point in time of the conclusion of this agreement. Amendments to this agreement and any waiver to the written form requirement are to be committed to writing.
8.5 Severability clause
In the event that one or several of the terms or clauses of this agreement should later be determined to be partially or entirely invalid, or should a loophole later be ascertained, this shall have no bearing on the remaining terms of this agreement. The parties to this agreement are obligated to agree on a term or clause to replace the invalid term or clause, or to redress the loophole, in a manner which as closely as possible represents the original intention of this agreement.