End-User Licence Agreement with Festo AG & Co. KG for apps

Effective October 2017

1. Scope; subject matter of the licence

 

1.1 This licence agreement applies solely to software applications (“apps”) offered by Festo AG & Co. KG, Esslingen, Germany (“Festo”) via Festo App World or other channels.

 

1.2 Festo offers apps for the following purposes: (i) product-specific apps linked to a particular Festo product (“designated product”) which are used to control or expand the function range of that product (“Motion Apps”), (ii) apps that expand the functionality of existing software products such as CAD programs (“add-on apps”) and (iii) other apps that the customer can use on the terminal named in the description of a particular product. Motion Apps come pre-installed on the designated product or can be installed by means of a firmware update. In cases where Motion Apps are not already enabled, the customer can acquire a personal licence key in Festo App World with which to enable them, by entering the corresponding Product Key.

 

1.3 Apps and their user documentation are protected by copyright. Unless otherwise stated in the app or the user documentation, all rights to the software and the user documentation are reserved by Festo. In cases where components or modules from other software manufacturers are included in the app (“third-party software”), especially open source software components, the licence agreements relevant in each case shall apply, as stated by Festo in the app and/or the program documentation.

 

1.4 The customer receives apps solely in object code format together with the corresponding user documentation. Except as provided in the second sentence of clause 2.4, the customer has no entitlement to receive a copy of the source code or the development documentation.

 

1.5 By using an app, the customer or user agrees to be bound by this licence agreement with Festo. This licence agreement also applies to improved versions (updates) and expansions (upgrades) of the apps which the customer may acquire at a later point in time, unless differing agreements are made upon acquisition of the update or upgrade in question.

 

2. Extent and limitations of the licence

 

2.1 The licence grants a worldwide non-exclusive right to use the app and the corresponding documentation in the manner described below, which is unlimited in time (subject to clause 3.1) and transferable only to the extent specified in clause 2.6.

 

2.2 The licence authorises the customer to use the app to the extent specified in the applicable product description. No other use is permitted. Use in the sense of this provision includes loading, displaying, running, transmitting and saving the app for the purposes of executing it and processing data.

 

2.3 The customer is authorised to make a backup copy of the app, any licence files and the corresponding user documentation on a separate data storage device. This backup copy must be labelled with the original labelling from Festo (including the copyright mark). Use of the backup copy is only permitted in the case of deterioration or destruction of the app originally acquired by the customer. The customer's use of the backup copy is likewise subject to this licence agreement. Moreover, the customer is not authorised to make or use any further copies of the app and/or user documentation or parts thereof without the approval of Festo.

 

2.4 Without prior written approval from Festo, the customer is not authorised to edit, modify or otherwise alter the app, to decompile it, to remove, bypass or modify any copy protection mechanisms, program elements used for digital rights management (DRM), security codes or the features used to identify the software including the product or licence key (see also clause 1.2), or to remove any information contained in the app or the user documentation concerning authorship, copyright, patent rights or other property rights of Festo. The regulations of section 69 d para. 3 and section 69 e of the German Copyright Act (UrhG) apply notwithstanding.

 

2.5 Festo is authorised to use technical means to ensure compliance with the preceding provisions, in particular the restrictions that apply to the use of each app and, in the case of violations, to make use of technical measures up to and including disabling the program in order to ensure compliance with these provisions. Passing on the app or the individual product or licence key to unauthorised third parties is not permitted except in cases of permissible transfer in accordance with clause 2.6.

 

2.6 The customer is authorised to transfer the app together with the licence permanently to a subsequent user in accordance with this licence agreement. Motion Apps can only be transferred in conjunction with the designated product. This transfer may only take effect provided the customer does not retain any copies of the app and refrains permanently from any further use of that app. The rules in clause 3.3 apply accordingly, with the proviso that the customer is authorised and obliged to transfer the app, the user documentation and a copy of this licence agreement to the subsequent user. The right of subsequent use does not commence until Festo receives a transfer confirmation signed by the customer and the subsequent user stating in full the company name respectively firm of the subsequent user and that user's business address. In the transfer confirmation, the subsequent user must accept this licence agreement, and the customer must give assurance that any copies of the app and the corresponding user documentation in the customer's possession, including the backup copy created by the customer if it has not been transferred to the subsequent user, have been deleted or otherwise made unusable.

 

2.7 Furthermore, the customer is not authorised to use the app in any other way or for other purposes than what is described in this section 2 of this agreement or to make the app available for use by third parties in whole or in part, temporarily or permanently.

 

3. Duration of the licence

 

3.1 The licence is granted indefinitely, which is to say, without a time limitation. In the case of pre-installed Motion Apps that are enabled as standard features or already enabled upon delivery, the licence commences upon acquisition of the designated product; in the case of Motion Apps that are pre-installed but not enabled as standard features, the licence commences when the app is enabled using the licence key acquired in the app store for that purpose; and in the case of other apps, the licence commences with the acquisition of the app in App World.

 

3.2 In the case of a culpable breach of the provisions of this licence agreement, in particular the provisions in section 2, Festo is entitled, after a prior warning, to immediate termination for good cause of the licence for the app affected by the breach, unless the breach and its consequences were only immaterial. Festo reserves the right to assert claims for damages.

 

3.3 Upon receipt of the termination of the licence in accordance with clause 3.2, the customer's right to use the app affected by the termination is extinguished. The customer is obliged to permanently uninstall that app. If uninstallation is not possible for technical reasons, the customer is obliged to permanently deactivate the app in question. The customer must destroy any backup copies made of the app in question and the corresponding user documentation. The customer must furnish Festo with written confirmation of this complete uninstallation or deactivation and destruction and must provide suitable proof if requested to do so by Festo.

 

3.4 Termination of the licence by Festo or the customer is otherwise not possible.

 

4. Fees

 

4.1 The fees for the licence are covered by the purchase price for the app in question, as stated in the applicable Festo price list.

 

4.2 The fees are not recoverable in the case of a termination of the licence for good cause in accordance with clause 3.2. Insofar as the fees paid exceed the value of the use enjoyed up to the time of termination, they should be credited against any claim for damages asserted by Festo.

 

5. Duty to observe secrecy and to take proper care

 

5.1 The customer must treat with confidentiality any information gained about the app that goes beyond the generally known functions and representations. This applies in particular to confidential information concerning the programming methods and techniques used including the source code and any confidential materials and documents belonging to Festo concerning the app which become accessible to the customer.

 

5.2 The customer is obliged to ensure the confidentiality specified in clause 5.1, and in particular to take suitable technical measures to prevent unauthorised access to the app and the user documentation by third parties, for example by assigning passwords.

 

5.3 The backup copy of the app and user documentation made by the customer in accordance with clause 2.3 must be stored by the customer in a location protected from unauthorised access by third parties, and the customer must explicitly draw its employees' attention to compliance with the duties of secrecy and care agreed in this section 5.

 

5.4 All other agreements may between the customer and Festo regarding confidentiality apply notwithstanding.

 

6. Other

 

6.1 This licence agreement is governed by the law of the Federal Republic of Germany to the exclusion of the principles of conflict of laws.

 

6.2 All disputes arising from or in connection with this licence agreement shall fall within the sole jurisdiction of the courts at the location where Festo has its registered office. Festo is, however, entitled to take legal action against the customer at the latter's general place of jurisdiction or before any other competent court.

 

6.3 The app is subject to the export control laws of various countries, in particular the laws, regulations and directives of the Federal Republic of Germany, the EU and the United States of America. The customer undertakes not to submit the app to a regulatory body for examination of the possible granting of rights of use or any other official approval without prior written agreement from Festo, and not to export it to countries or to natural persons or legal entities that are subject to export bans under the applicable export control laws, regulations or directives. Furthermore, the customer/user is responsible for compliance with all legal regulations relating to use of the app in the country where the customer/user is using the app.