End User License Agreement ("EULA")
1. Scope and Purpose of this EULA
1.1 This EULA applies to all software components that have been developed by MAGMA Giessereitechnologie GmbH, Aachen, Germany (“MAGMA”), and that form an integral part of the software system that you have purchased from, or subscribed to with, a distribution partner of MAGMA. If the MAGMA software components contain software components that are developed and licensed by other manufacturers, you will be provided with either originals of the license terms in printed or digital form or links to the license terms of the respective manufacturers available on the Internet or within the MAGMA software components.
1.2 The sole purpose of this EULA is to define the rights of use that you have concerning the MAGMA components. For the avoidance of doubt, your only contractual partner concerning the provision of the MAGMA software components is MAGMA’s distribution partner, and MAGMA does not assume any warranties or liabilities with respect to the MAGMA software components themselves and/or their integration with the software system of the MAGMA distribution partner. Any warranty rights or liability claims must be brought against the MAGMA distribution partner directly.
2. Your Rights of Use
2.1 Depending on your agreement with the MAGMA distribution partner concerning the software system, also your rights concerning the MAGMA software components will be either permanent or temporary for the term of your agreement with the MAGMA distribution partner. In addition, your agreement with the MAGMA distribution partner may provide that a temporary license is converted into a permanent license (lease-purchase option). For all licenses, access may be secured by license keys which are associated with further protection. Such license keys are renewed regularly, both for temporary and permanent licenses.
2.2 Your rights of use are limited to the MAGMA software components in object code form in addition to the associated documentation, i.e. an operating manual consisting of electronic and written user information, specifications and descriptions published by MAGMA, and any and all databases, data, training material, or other information contained within the MAGMA software components or otherwise provided by MAGMA (if so agreed with the MAGMA distribution partner) This EULA shall also apply to all versions of the MAGMA software components created later and made available to you (a) under an agreement on the temporary provision of the software system, (b) under warranty obligations, or (c) under an agreement on maintenance services for the software system provided under a perpetual license. In addition, these license conditions apply accordingly to all other copyrighted works of MAGMA provided to you by the MAGMA distribution partner as part of its deliveries and services, in particular but not limited to graphical user interfaces, project or product descriptions, visualizations, or logos.
2.3 If you are to be granted a perpetual license to the software system under the agreement made with the MAGMA distribution partner, you shall be granted only a temporary right of use to the MAGMA software components until full payment of all claims existing at the time of delivery, and a perpetual right shall only be granted upon settlement of such payment claims.
2.4 In case of seizure or other possible impairment of the rights of MAGMA to the MAGMA software components, you must immediately point out the conflicting rights of MAGMA. In addition, you are obligated to inform your MAGMA distribution partner immediately by e-mail, telephone or fax as well as to subsequently inform your MAGMA distribution partner in writing about the processes that have led or could lead to an impairment of MAGMA’s rights.
2.5 According to your agreement with MAGMA’s distribution partner, your rights concerning the MAGMA software components are as follows:
2.5.1 MAGMASOFT® node locked is a single-user license and entitles you to copy and use the MAGMA software components on a single computer for license server and application permanently and temporarily. This license is limited to the agreed territory and the agreed location. The transfer of the MAGMA software components by way of leasing or other sublicensing to any third parties, i.e. other natural or legal persons, is contractually prohibited, regardless of whether these are to be regarded as your affiliated companies within the meaning of § 15 AktG (German Stock Corporation Act) or otherwise connected with you. Your agents who exercise your right of use exclusively on your behalf shall not be deemed third parties.
2.5.2 MAGMAfloat territory is a network license and entitles you to the permanent and temporary duplication and intended use of the MAGMA software components on one license server as well as on a number of client computers. This license is spatially limited to the agreed territory and the agreed location. The MAGMA software components may only be used simultaneously by the contractually agreed number of simultaneous users. Use means the temporary storage of the MAGMA software component in the main computer memory required for the use of the functions of the MAGMA software component. The transfer of the MAGMA software component by means of leasing or other sub-licensing to any third parties, i.e. other natural or legal persons, is contractually prohibited, regardless of whether these are to be regarded as your affiliated companies of within the meaning of § 15 AktG (German Stock Corporation Act) or are otherwise connected with you. Your agents who exercise your right of use exclusively on your behalf shall not be deemed third parties.
2.5.3 MAGMAsite licenses are network licenses and entitle you, as an extension to your rights of use, to the permanent or, respectively, temporary duplication and intended use of the MAGMA software component on the contractually agreed number of license servers and a variety of client computers. For MAGMAsite standard, the license is limited to the agreed territory or the agreed territories and the agreed locations; for MAGMAsite general, it is - notwithstanding Clause 4 - territorially unlimited. The MAGMA software components may only be used simultaneously by the contractually agreed number of simultaneous users. Use means the temporary storage of the MAGMA software component in the main computer memory required for the use of the functions of the MAGMA software component. The transfer of the MAGMA software component by means of leasing or other sub-licensing to any third parties, i.e. other natural or legal persons, is contractually prohibited, regardless of whether these are to be regarded as your affiliated companies of within the meaning of § 15 AktG (German Stock Corporation Act) or are otherwise connected with you. Your agents who exercise your right of use exclusively on your behalf shall not be deemed third parties.
2.5.4 Redundant License Server
Irrespective of the agreed license (Clauses 2.5.1, 2.5.2, 2.5.3), you may acquire additional server licenses with the purpose of increasing the reliability of the MAGMA software componens (Redundant License Server). These additional server licenses entitle you to the permanent and temporary duplication and intended use of the MAGMA software components on the agreed number of license servers, whereby productive use is only permitted in cases where the primary license server fails. The licenses are spatially limited to the agreed territory and the agreed location.
2.6 Your right to make a backup copy of the MAGMA software component and to store it on a computer or an external data carrier remain unaffected.
2.7 You are not entitled to modify, edit, translate, port, reverse engineer, disassemble, decompile or otherwise interfere with the source code of the MAGMA software components. You are not entitled to correct occurring program errors yourself as long as authorized third parties offer the error correction at market conditions. If, in addition to the information contained in the documentation, you need further information for the interoperability of the MAGMA software components with independently created other computer programs, you will first send a request to your MAGMA distribution partner. MAGMA reserves the right to provide the necessary information. Otherwise, the provisions of the German Copyright Act (§§ 69d, 69e UrhG) remain unaffected.
2.8 The use of the MAGMA software components within the framework of virtualization services, in which the programs can be accessed remotely and used to achieve certain calculations, without MAGMA software components having to be loaded into the main memory of a computer, is contractually prohibited.
2.9 You are not entitled to change, remove, or circumvent any proprietary notices attached to the MAGMA software components including the documentation, in particular copyright notices or trademarks as well as serial numbers, license codes or security mechanisms. You shall take appropriate precautions to protect the MAGMA software components from unauthorized access by third parties. You shall keep any original data carriers and data carriers with (backup) copies made in accordance with the contract as well as the documentation at a secure location. You shall point out to your employees that it is not permitted to make copies beyond the contractual scope and that the other requirements of this Clause 2 must be complied with.
2.10 All other rights to the MAGMA software components shall remain with MAGMA or its licensor(s). MAGMA remains entitled to the joint use and other arbitrary use of the concepts underlying the programs.
2.11 You ae only entitled to reproduce, distribute and publicly reproduce the database or content of the database to the extent that this is essential for the contractual use of the MAGMA software components including the necessary evaluation of the database or parts of the database.
3. Copyright and Property Right Infringements
3.1 MAGMA reserves the right to take action against violators of copyrights or intellectual property rights to the MAGMA software components. You shall immediately inform MAGMA of such copyright or intellectual property infringements, and support MAGMA appropriately in the action against infringers.
3.2 You shall indemnify, hold harmless, and defend MAGMA from and against any and all losses resulting from any third party claim as a result of, arising out of, or relating to your: (a) negligence or willful misconduct, (b) use of the MAGMA software components and/or documentation in a manner not authorized, not contemplated by the contract, nor customarily used in connection with said MAGMA software components; (c) infringement or misappropriation from operation or use of the MAGMA software components and/or documentation in combination with data, software, hardware, equipment, technology or other materials not provided by MAGMA, your MAGMA distribution partner or authorized by MAGMA in writing; or (d) modifications to the MAGMA software components, documentation and/or other materials not made by MAGMA if such infringement or misappropriation would not have arisen but for such modification.
4. Export Control
Notwithstanding the territorially limited right to use within the territory, you must observe the applicable export control regulations at all times.
5. Miscellaneous
5.1 Failure to exercise any right or remedy under this EULA does not signify acceptance. The failure to enforce at any time any provision of this EULA, or to exercise any option which is therein provided, shall in no way affect the validity of this EULA, or any part hereof, or the right thereafter to enforce its rights hereunder, nor shall it be taken to constitute a condonation or waiver of the default or condonation of any other or subsequent default or breach. No consent, waiver, or access, express or implied, shall constitute a subsequent consent, waiver, or access.
5.2 The laws of the Federal Republic of Germany shall apply with the exception of those provisions which refer to the applicability of another legal system.
5.3 If you are a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law, or a special fund under public law, or if you do not have a general place of jurisdiction in Germany, the place of jurisdiction for all disputes arising out of or in relation to this EULA shall be the registered office of MAGMA.
