End-User License Agreement

2020-02-03

IMPORTANT. PLEASE READ THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE CONTINUING WITH THIS PROGRAM INSTALLATION. BY COPYING, INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.

Articy End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and Articy for the Articy software product(s) which may include associated software components, media, printed materials, “online” or electronic documentation and, if licensed, the human readable source code format (“SOFTWARE PRODUCT”). By installing, copying, or otherwise using the SOFTWARE PRODUCT, you agree to be bound by the terms of this agreement. In case you bought or leased the SOFTWARE PRODUCT from a third party, this license agreement represents the entire agreement concerning the program between you and Articy, (referred to as “licenser”), and it supersedes any prior proposal, representation, or understanding between the parties. If you do not agree to the terms of this agreement, do not install or use the SOFTWARE PRODUCT.

The SOFTWARE PRODUCT is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE PRODUCT is licensed, not sold.

THE SOFTWARE PRODUCT MAY INCLUDE PRODUCT VALIDATION, PRODUCT ACTIVATION AND OTHER TECHNOLOGY DESIGNED TO PREVENT UNAUTHORIZED USE AND COPYING. THIS TECHNOLOGY MAY CAUSE YOUR COMPUTER TO AUTOMATICALLY CONNECT TO THE INTERNET AS DESCRIBED IN SECTION 8. ADDITIONALLY, ONCE CONNECTED, THE SOFTWARE MAY TRANSMIT YOUR SERIAL NUMBER TO ARTICY AND IN DOING SO MAY PREVENT USES OF THE SOFTWARE THAT ARE NOT PERMITTED.

“Articy” means articy Software GmbH & Co. KG, Massenbergstr. 15, 44787 Bochum, Germany.

1. GRANT OF LICENSE.

The SOFTWARE PRODUCT is licensed as follows:

(a) Software purchase

(aa) Perpetual Provisions and Use.

Articy hereby grants you on the terms and conditions of this agreement the non-exclusive, non-transferable and non-sublicensable right to use the SOFTWARE PRODUCT without limitation of time, manner or place.

You have the right to install and use copies of the SOFTWARE PRODUCT on your computers running a validly licensed copy of the operating system for which the SOFTWARE PRODUCT was designed. If you have purchased multiple-user licenses for the SOFTWARE PRODUCT, at any time you may have as many copies of the software in use up to the number of multiple-user licenses you have purchased.

(bb) Backup Copies.

You may also make copies of the SOFTWARE PRODUCT as may be necessary for backup and archival purposes.

(cc) Tryout Software.

The SOFTWARE PRODUCT may be configured or delivered to allow trial or tryout for a limited period of time. You are not permitted to use the Software in a manner inconsistent with its design or Documentation. ACCESS TO ANY OUTPUT FILES CREATED WITH THE SOFTWARE PRODUCT USED ON A TRYOUT OR TRIAL BASIS IS ENTIRELY AT YOUR OWN RISK.

Subject to the terms of this Agreement and solely during the Evaluation Period, Articy hereby grants on the terms and conditions of this Agreement, a limited, personal, non-exclusive, non-transferable, non-sublicensable license to use the SOFTWARE PRODUCT, subject to any other limitations imposed by Articy in writing, solely for non-commercial testing and evaluation of the SOFTWARE PRODUCT’s applicability, usability, performance and design.

(dd) Middleware.

If the SOFTWARE PRODUCT is a middleware product, then Articy hereby furthermore grants a worldwide, non-exclusive and transferable license of the Middleware Product and in object code and as a part of the developed Application only, to (a) use and reproduce the Middleware Product for the purpose of and to the extent required to test, demonstrate and support the Application title; and (b) make, have made (by third party contractors), reproduce, promote, advertise, provide previews and reviews on all media, publish, distribute, license and offer to license the Application title to End Users or Application Publishers either as a stand-alone Application or bundled with other software or hardware.

(b) Software leasing

(aa) Subscription Provisions.

Articy hereby grants on the terms and conditions of this Agreement, a time-limited, personal, worldwide, non-exclusive, non-transferable, non-sublicensable, subscription-based license to use the SOFTWARE PRODUCT. The SOFTWARE PRODUCT is licensed to you on a subscription basis for an initial one (1) month “monthly subscription” or twelve (12) month period “annual subscription” (“Initial Term”) and will automatically renew for an additional one (1) month or twelve (12) months period (“Renewal Term”) until you terminate your subscription by notifying us in writing or via e-Mail (sales@articy.com) of your intent to discontinue your use of the SOFTWARE PRODUCT. Bundles have a minimum term of six months and can be cancelled on a monthly basis after the first six months.

By using the SOFTWARE PRODUCT you agree that Articy is authorized to charge your credit card or any other alternative payment methods supported by Articy for the subscription fee for the SOFTWARE PRODUCT on a monthly or annual basis without any further action on your part. In the event that your credit card or any other alternative payment methods supported by Articy is declined for any reason, the subscription fee is still due and you will promptly provide Articy with another credit card or any other alternative payment method supported by Articy for automatic payment purposes. Your continued use of the SOFTWARE PRODUCT is subject to and conditioned upon payment of the subscription fee. You must provide notice of intent to terminate your subscription five (5) business days prior to the end of the Initial Term or five (5) business days prior to the end of each Renewal Term, otherwise your subscription will automatically renew for another term. During the initial term and each renewal term, once payment is received, the subscription fee is non-refundable and non-cancellable.

Use of the SOFTWARE PRODUCT before and beyond the applicable subscription term, or any attempt to defeat any disabling function in the SOFTWARE PRODUCT is an unauthorized use and constitutes a material breach of this EULA and applicable law. To provide Articy with notice of your intent to terminate your subscription, contact our customer support team at sales@articy.com.

(bb) Backup Copies.

You may also make copies of the SOFTWARE PRODUCT as may be necessary for backup and archival purposes.

(cc) Tryout Software.

The SOFTWARE PRODUCT may be configured or delivered to allow trial or tryout for a limited period of time. You are not permitted to use the Software in a manner inconsistent with its design or documentation. ACCESS TO ANY OUTPUT FILES CREATED WITH THE SOFTWARE PRODUCT USED ON A TRYOUT OR TRIAL BASIS IS ENTIRELY AT YOUR OWN RISK.

Subject to the terms and conditions of this Agreement and solely during the Evaluation Period, Articy hereby grants, a limited, personal, non-exclusive, non-transferable, non-sublicensable license to use the SOFTWARE PRODUCT, subject to any other limitations imposed by Articy in writing, solely for non-commercial testing and evaluation of the SOFTWARE PRODUCT’s applicability, usability, performance and design.

(dd) Middleware.

If the SOFTWARE PRODUCT is a Middleware Product, then Articy hereby furthermore grants a time-limited, worldwide, non-exclusive, transferable and subscription-based license of the Middleware Product and in object code and as a part of the developed Application only, to (a) use and reproduce the Middleware Product for the purpose of and to the extent required to test, demonstrate and support the Application title; and (b) make, have made (by third party contractors), reproduce, promote, advertise, provide previews and reviews on all media, publish, distribute, license and offer to license the Application title to End Users or Application Publishers either as a stand-alone Application or bundled with other software or hardware.

The SOFTWARE PRODUCT is licensed to you on a subscription basis for an initial one (1) month “monthly subscription” or twelve (12) months period “annual subscription” (“Initial Term”) and will automatically renew for an additional one (1) month or twelve (12) months period (“Renewal Term”) until you terminate your subscription by notifying Articy in writing or via e-Mail (sales@articy.com) of your intent to discontinue your use of the SOFTWARE PRODUCT. Bundles have a minimum term of six months and can be cancelled on a monthly basis after the first six months.

By using the SOFTWARE PRODUCT you agree that Articy is authorized to charge your credit card or any other alternative payment methods supported by Articy for the subscription fee for the SOFTWARE PRODUCT on a monthly or annual basis without any further action on your part. In the event that your credit card or any other alternative payment methods supported by Articy is declined for any reason, the subscription fee is still due and you will promptly provide Articy with another credit card or any other alternative payment method supported by Articy for automatic payment purposes. Your continued use of the SOFTWARE PRODUCT is subject to and conditioned upon payment of the subscription fee. You must provide notice of intent to terminate your subscription five (5) business days prior to the end of the Initial Term or five (5) business days prior to the end of each Renewal Term, otherwise your subscription will automatically renew for another term. During the initial term and each renewal term, once payment is received, the subscription fee is non-refundable and non-cancellable.

Use of the SOFTWARE PRODUCT before and beyond the applicable subscription term, or any attempt to defeat any disabling function in the SOFTWARE PRODUCT is an unauthorized use and constitutes a material breach of this EULA and applicable law. To provide Articy with notice of your intent to terminate your subscription, contact our customer support team at sales@articy.com.

2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.

2.1 Maintenance of Copyright Notices.

You must not remove or alter any copyright notices on any and all copies of the SOFTWARE PRODUCT.

2.2 Distribution.

You may not distribute registered copies of the SOFTWARE PRODUCT to third parties except it is middleware (see 1 (a) (dd) or 1 (b) (dd) Middleware).

2.3 Prohibition on Reverse Engineering, Decompilation, and Disassembly.

You may not reverse engineer, decompile, or disassemble the SOFTWARE PRODUCT, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. The right to decompile the Licensed Product granted to you herein is only granted under the terms of sec. 69e para. (1) nos. 1 to 3 UrhG and within the limits of sec. 69e para. (2) nos. 1 to 3 UrhG.

2.4 Rental.

You may not rent, lease, or lend the SOFTWARE PRODUCT.

2.5 Support Services.

Articy may provide you with support services related to the SOFTWARE PRODUCT (“Support Services”). Any supplemental software code provided to you as part of the Support Services shall be considered part of the SOFTWARE PRODUCT and subject to the terms and conditions of this agreement.

2.6 Compliance with Applicable Laws.

You must comply with all applicable laws regarding use of the SOFTWARE PRODUCT.

2.7 Additional Restrictions.

You may not modify, adapt, translate, convert to another programming language, decompile, reverse engineer, disassemble or otherwise attempt to discover the source code of any portion of the Object Code; remove, alter, modify or bypass any authorization codes required to activate the Software; remove, deface or obscure any copyright or trademark notices or legends or any other proprietary notices in or on the Software; disclose to others or reproduce the SOFTWARE PRODUCT.

3. TERMINATION

Without prejudice to any other rights, Articy may terminate this agreement if you fail to comply with the terms and conditions of this agreement. In such event, you must destroy all copies of the SOFTWARE PRODUCT in your possession.

4. COPYRIGHT

All titles, including but not limited to copyrights, in and to the SOFTWARE PRODUCT and any copies thereof are owned by articy Software GmbH & Co. KG, Massenbergstr. 15, 44787 Bochum, Germany. The worldwide exclusive right of exploitation relating to this Software is owned by Articy. All title and intellectual property rights in and to the content which may be accessed through use of the SOFTWARE PRODUCT is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This agreement grants you no rights to use such content. All rights not expressly granted are reserved by articy Software GmbH & Co. KG.

5. LIMITED WARRANTY

Articy provide a warranty to you after first purchasing a license for the SOFTWARE PRODUCT for use pursuant to the terms of this agreement that the SOFTWARE PRODUCT will perform substantially in accordance with the Documentation for the ninety (90) day period following receipt of the SOFTWARE PRODUCT when used on the recommended operating system and hardware configuration. Non-substantial variation of performance from the Documentation does not establish a warranty right. This limited warranty does not apply to the following, which are made available AS-IS and without warranty from Articy: patches, pre-release (beta), trial and evaluation copies of the Software; websites, Articy Online Services and any software made available by Articy for free via web download from a Articy website. All warranty claims must be made to Articy within such ninety (90) day period. If the SOFTWARE PRODUCT does not perform substantially in accordance with the Documentation, the entire liability of Articy and your exclusive remedy will be limited to either, at Articy’s option, replacement of the SOFTWARE PRODUCT or refund of the license fee you paid for the SOFTWARE PRODUCT. In case you are a merchant within the meaning of the German Commercial Code and German law is applicable by the terms of this condition, a warranty period of one year applies.

YOU MAY HAVE ADDITIONAL LEGAL RIGHTS AS STATED IN THIS SECTION, WHICH VARY FROM JURISDICTION TO JURISDICTION. ARTICY WILL NOT LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. Please see Section 10 for jurisdiction-specific provisions.

6. DISCLAIMER.

OTHER THAN THE FOREGOING LIMITED WARRANTY AND STATUTORY WARRANTIES AND REMEDIES, WHICH STATES THE SOLE AND EXCLUSIVE REMEDIES FOR ARTICY’S BREACH OF THAT OFFERED WARRANTY, ARTICY DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY AND FITNESS FOR ANY PARTICULAR PURPOSE. OTHER THAN SUCH OFFERED AND STATUTORY WARRANTIES AND REMEDIES, ARTICY PROVIDES THE SOFTWARE PRODUCT AND ACCESS TO ANY WEBSITES AND ARTICY ONLINE SERVICES AS-IS AND WITH ALL FAULTS. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME STATES. YOU MAY HAVE ADDITIONAL WARRANTY RIGHTS UNDER LAW, WHICH MAY NOT BE WAIVED OR DISCLAIMED. ARTICY WILL NOT LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. The provisions of Section 6 and Section 7 will survive the termination of this agreement, howsoever caused, but this will not imply or create any continued right to use the SOFTWARE PRODUCT after termination of this agreement.

7. LIABILITY, DAMAGES

7.1 Articy shall be liable under the terms of this Agreement only in accordance with the provisions set out under (a) to (e):

(a) Articy shall be unrestrictedly liable for losses caused intentionally or with gross negligence by Articy, its legal representatives or senior executives and for losses caused intentionally by other assistants in performance; in respect of gross negligence of other assistants in performance, Articy’s liability shall be as set forth in the provisions for simple negligence in (e) below.

(b) Articy shall be unrestrictedly liable for death, personal injury or damage to health caused by the intent or negligence of Articy, its legal representatives or assistants in performance.

(c) Articy shall be liable for losses arising from the lack of any warranted characteristics up to the amount which is covered by the purpose of the warranty and which was foreseeable for Articy at the time the warranty was given.

(d) Articy shall be liable in accordance with the German Product Liability Act in the event of product liability.

(e) Articy shall be liable for losses caused by the breach of its primary obligations by Articy, its legal representatives or assistants in performance. Primary obligations are such basic duties which form the essence of the Agreement, which were decisive for the conclusion of the Agreement and on the performance of which you may rely. If Articy breaches its primary obligations through simple negligence, then its ensuing liability shall be limited to the amount which was foreseeable by Articy at the time the respective service was performed.

7.2 Articy shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken.

7.3 Any more extensive liability of Articy is excluded on the merits.

8. INTERNET CONNECTIVITY AND PRIVACY.

8.1 Automatic Connections to the Internet. The SOFTWARE PRODUCT may cause your Computer to automatically connect to the Internet and to communicate with an Articy website for purposes that may include providing you with additional information, features, functionality and licensing.

8.1.1 When the SOFTWARE PRODUCT automatically connects to the Internet, an Internet protocol address (“IP Address”) that is associated with your current Internet connection, serial key information and a digest (hash) of your system information for licensing purposes are sent to an Articy website;

8.1.2 When the SOFTWARE PRODUCT automatically connects to the Internet, no personally identifiable information is sent except to the extent that IP Addresses may be considered personally identifiable in some jurisdictions;

8.2 Updating. The SOFTWARE PRODUCT may cause your Computer to automatically connect to the Internet to check for Updates that are available for automatic download to your Computer and to let Articy know the SOFTWARE PRODUCT is successfully installed. Please consult the Documentation for information about changing default update settings.

8.3 Use of Articy Online Services. The SOFTWARE PRODUCT may use your Computer to automatically connect to the Internet to facilitate your access to content and services that are provided to you by Articy. In addition, the SOFTWARE PRODUCT may automatically update downloadable materials from these services so as to provide immediate availability of these services even when you are offline. Please consult the Documentation for information about changing default update settings.

9. PEER TO PEER COMMUNICATIONS.

The articy:server may use your connection to a local area network to automatically connect to other Articy software and, in doing so, may indicate on the local area network that it is available for communication with other Articy software. These connections may transmit the IP Address of your connection to the local network, but no personally identifiable information will be transmitted or received through such network connections (except to the extent that IP Addresses may be considered personally identifiable in some jurisdictions).

The articy:server utilizes SSL for encrypted communication. Connections to the company source-control system must be available when using collaborative working. We strongly recommend using a VPN (virtual private network). Credentials for Source control access are exchanged by means of the source control provider. Articy cannot be made responsible for security issues regarding that.

10. SPECIFIC PROVISIONS AND EXCEPTIONS.

This section sets forth specific provisions related to certain products and components of the SOFTWARE PRODUCT as well as limited exceptions to the above terms and conditions. To the extent that any provision in this section is in conflict with any other term or condition in this agreement, this section will supersede such other term or condition.

10.1 No Prejudice, European Union Provisions.

10.1.1 This agreement will not prejudice the statutory rights of any party, including those dealing as consumers. For example, for consumers in New Zealand who obtain the SOFTWARE PRODUCT for personal, domestic or household use (not business purposes), this agreement is subject to the Consumer Guarantees Act.

10.1.2 If you obtained the SOFTWARE PRODUCT in the European Union (EU), you usually reside in the EU and you are a consumer (that is you use the SOFTWARE PRODUCT for personal, non-business related purposes), then Section 5 does not apply to your purchase and use of the SOFTWARE PRODUCT. Instead, Articy warrants for a period of 2 years from purchase that the SOFTWARE PRODUCT provides the functionalities set forth in the Documentation (the “agreed upon functionalities”) when used on the recommended hardware configuration. Non-substantial variation from the agreed upon functionalities will not establish any warranty rights. THIS WARRANTY DOES NOT APPLY TO SOFTWARE PRODUCTS THAT YOU REQUEST TO USE ON A PRE-RELEASE, TRYOUT, STARTER, PRODUCT SAMPLER BASIS, OR TO THE EXTENT THE SOFTWARE FAILS TO PERFORM BECAUSE IT HAS BEEN ALTERED BY YOU. To make a warranty claim, you must notify Articy during this 2 year period, providing details of proof of purchase of the SOFTWARE PRODUCT. Articy will verify with you whether there is a defect in the SOFTWARE PRODUCT or advise you that the error arises because you have not installed the SOFTWARE PRODUCT correctly (in which case, Articy shall assist you). If there is a defect in the SOFTWARE PRODUCT, you may request from Articy either a refund or a repaired/replacement copy of the SOFTWARE PRODUCT. In the event your warranty details are substantiated, Articy will meet your request for repaired/replacement Software, unless it is not reasonable for Articy to do so, in which case Articy will provide you with a refund.

Please note that the provisions of Section 7 (Limitation of Liability) will continue to apply to any damages claims you make in respect of your use of the SOFTWARE PRODUCT. Nonetheless, Articy shall be liable for direct losses that are reasonably foreseeable in the event of a breach by Articy of this agreement. You are advised to take all reasonable measures to avoid and reduce damages, in particular by making back-up copies of the SOFTWARE PRODUCT and your computer data.

This agreement, and in particular, this Section 10.1.2, is intended to describe your rights (including your statutory rights) in the event there should be problems with your use of the SOFTWARE PRODUCT. If your statutory rights should be greater than this description, your statutory rights shall apply.

10.2 Pre-release SOFTWARE PRODUCT Additional Terms. If the SOFTWARE PRODUCT is pre-commercial release or beta software (“Pre-release Software”), then this section applies. The Pre-release Software is a pre-release version, does not represent final product from Articy, and may contain bugs, errors and other problems that could cause system or other failures and data loss. Articy may never commercially release the Pre-release Software. You will return or destroy all copies of Pre-release Software upon request by Articy or upon Articy’s commercial release of such Software. YOUR USE OF PRE-RELEASE SOFTWARE IS AT YOUR OWN RISK. SEE SECTIONS 6 AND 7 FOR WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS WHICH GOVERN PRE-RELEASE SOFTWARE.

10.3 Educational SOFTWARE PRODUCT. If the Software is Educational SOFTWARE PRODUCT (Software manufactured and distributed for use by only Educational End Users), you are not entitled to use the SOFTWARE PRODUCT unless you qualify in your jurisdiction as an Educational End user.

11. FINAL PROVISIONS

11.1 This Agreement shall be governed by the laws of the Federal Republic of Germany except for the UN Sales Convention (United Nations Convention on Contracts for the International Sale of Goods dated 1980-04-11).

11.2 The courts for Bochum, Germany, shall have exclusive jurisdiction over all disputes under and in connection with this Agreement, provided that Licensee is a merchant within the meaning of the German Commercial Code or if upon the commencement of legal proceedings, Licensee has no place of business or ordinary residence in the Federal Republic of Germany.

11.3 Should any provision of this Agreement be or become invalid, this shall not affect the validity of the remaining terms. The parties shall in such an event be obliged to cooperate in the creation of terms which achieve such legally valid result as comes closest commercially to that of the invalid provision. The above shall apply accordingly to the closing of any gaps in the Agreement.