License

/License
License2017-07-03T16:00:55+00:00

 

PowerFolder Software license-agreement

………….

 

– Preamble –

 

By this license agreement the licensor that is dal33t GmbH, Niederloericker Str. 62, 40667 Meerbusch, grants the licensee a license for the program named “PowerFolder”. PowerFolder is a program, that secures data and is especially suited for synchronization between different computers by local or online-networks, exchange and transmission of backups and secure online storage.

Optionally the licensee is granted the right to deposit data for online data storage in the data storage center of dal33t GmbH. In the case that such a contract is concluded the Appendix I applies. If only a license agreement is concluded Appendix I is meaningless and not part of the license agreement. Appendix I only applies if this is agreed between the parties.

§ 1

Subject matter of the contract

The client may download the software PowerFolder from the homepage/online presentation of PowerFolder (from www.powerfolder.com). The rights requisite for the use of that software shall be acquired by this contract.

§ 2

Assignment of rights

The licensor grants the user a not exclusive, simple and not assignable right of use regarding the program “PowerFolder”. The right of use is granted without areal restriction and for the – separate from this contract – tenure agreed in each case.

a)

The program is licensed on a “per user”-basis that means that “one example” of the software entitles one user for the use on unlimited numbers of electronic devices (computers, Smartphones, Tablets) simultaneously. If you wish to use the software by more than one user the right of use must be extended accordingly. For this case a further license has to be acquired.

b) In deviance to the regulation 2 a) above the license can be acquired for use by multiple users if the price list displayed on the internet site www.powerfolder.com allows the purchase of the license for

more than one user. In this case the above mentioned regulation 2 a) applies with the proviso that the use is restricted to maximum the number of users for which the license was acquired.

c)

Solely the client is entitled to use the software. The client will make the program available to third persons only after written and previous consent of dal33t GmbH. Employees of the client do not count as third persons as well as any other person that stay at the client for the contractual use.

The client is entitled to create a security backup and to make every day data savings. The creation of more copies than requisite for a contractually agreed use including security backup and data savings is not allowed. For each copy that exceeds that security backup a new license is requisite even if the copy is used on the same computer.

By the use, the download or the installation of the program or parts of the program you display your acceptance of the license agreement and all of its provisions and conditions regarding the coping, the distribution and the changing of the program or hereupon based works. Nothing but this license agreement grants you the permission to modify or distribute the program or derivative rights. These actions are prohibited by law. If you do not accept conditions and provisions you should not use, modify or distribute this program.

The licensee is not entitled in connection with the enforcement of this contract to use free of charge the title of the program as well as names, marks, logos and illustrations of the holder of rights.

 

 

§ 3

Modifications of the program

The client is not entitled to decompile, to change, to revise or modify the program. An exception hereof applies only insofar as the copyright law permits this inalienable for the creation of an interface to other software products or for elimination of computer bugs as requisite.

The client is not allowed to copy the program or reproduce parts hereof in another software application by which means whatsoever. § 2 No. 3 of this contract, by which the clients have the right to create a security backup is not affected hereof. You are not allowed to modify the program in that fashion that in any way the rights, patent, trademarks or copyrights of other parties or entities are infringed.

The client is entitled to decompile the software only in the constraints of sec. 69 e copyright law and only if dal33t GmbH has not provided after written request with appropriate period of time the data or/and information requisite to create the interoperability with other hard- and software.

The client is only insofar entitled to change, extend or else wise to modify the software in the sense of sec. 69 c No. 2 copyright law as this law permits this inalienable. Before the client himself or by third person eliminates the software bug he grants dal33t GmbH the right to try to eliminate the software bug. The client is not entitled to rights of use and distribution regarding the modification that exceeds the rights of use granted by this contract. The licensee may – against appropriate remuneration – request the granting of a not exclusive, territorial and in time not restricted right of use including the right to sublicense.

You have to refrain from modifying the program insofar as this is not permitted in the frame of the provisions of sec. 69 d copyright law. It is prohibited to distribute the modified program. If you have modified the program and distribute a program you have to pay a software registration and license fee for each copy of the program that was distributed.

You are not allowed to develop application programs, reusable components or other software items that connect with the original or modified vision of the program.

If the licensor leaves the client within the scope of rectification or support supplements (e. g. patches) or new versions (updates) or within the frame this agreement a reissue of the subject matter of the contract (upgrade) that substitutes formerly yielded subject matters of contract (“old software”), or by a special agreement further software-modules, the provisions of this agreement apply.

 

§ 4

No distribution of the program

You are not allowed to copy the program and to distribute literal copies of the program, except with a written permission from dal33t GmbH.

Also under the provision that the recipient of the modified copy of this programs agrees to the provisions of this license agreement you are not allowed to distribute copies or modified copies of this program. This applies for the right worldwide and for every medium to think of.

You are not allowed to pack this program with other software products or to include it or to distribute it without the special written approval of dal33t GmbH.

§ 5

Hosting services

For the purpose of this license “hosting-services” are regarded as a form of distribution of this program. Hosting services is understood as distribution of this program towards end-user in a life-working context in which the program is installed on a server of a provider of the hosting services and by the end-user by internet or by other means of data communications the program is used in bypassing the necessity for the end-user to download and to install the program on his own server.

If you use this program by a hosting service you are bound to the provisions and conditions of this license agreement in exactly the same manner as if you would have had downloaded the program and had it installed on your own server/system.

dal33t GmbH will in no way be maid responsible for the ability and suitability of the program regarding tasks as a “hosted-“software application.

§ 6

Ownership of intellectual property

No rights regarding this program will be granted unless this is agreed explicitly. You are not allowed to copy, change, sublicense or distribute the program unless this is allowed explicitly due to the license agreement. Any attempt else wise to copy, change, sublicense or distribute the program is prohibited and will automatically cancel your rights due to this license.

You are not allowed to represent yourself in any way to be associated, connected or supported by dal33t GmbH unless you have a special written approval from dal33t GmbH.

You are not allowed to create derivative works of the program.

If a natural person or legal entity or any other entities submits dal33t GmbH a contribution in any section for the inclusion in the program including but not restricted to software-modification, proposal, appendices, patches or any other modifications the right holder grants for this contribution dal33t GmbH a non-exclusive, assignable, worldwide royalty free copyright license to use the contribution for any purpose whatsoever including the rights to distribute, to sell, to workout derivative works of the contribution, to display publicly, to execute publicly, to distribute or to sublicense.

The ownership of the entire intellectual property regarding the whole program remains at dal33t GmbH under which circumstances whatsoever. Modifications of the program or contributions to the modifications, proposals, appendices, patches or other modifications regarding any part whatsoever of the program do not assign any ownership rights or other intellectual property rights to any other party with exception of dal33t GmbH.

Any contributor is subjected to the conditions of this contract and grants hereby dal33t GmbH a not exclusive, worldwide, royalty free copyright license to reproduce, produce derivative works here from, to display publicly, to execute publicly, to distribute or to license the contribution of contributor and that in source code-format.

§ 7

Royalty fee and payment

Every organization, legal or natural person that uses this program must pay a software registration and royalty fee which amount is subjected to the price list that can be seen on the internet homepage: www.powerfolder.com. The amount of the royalty is subjected to the version of the price-list that can be downloaded at that point in time of the conclusion of this contract on the above mentioned homepage.

a)

The assessment of the price due to the price list depends for which time-period the license is acquired (limited in time or unlimited) and whether the client is a private person or an enterprise. The duration of the license is assessed by the conclusion of the contract on the homepage www.powerfolder.com.

b)

The license regarding this program entitles to use the program for a special amount of data to be administered (e.g. 50, 100, a. 250 GB). The prices are to be determined according to the price list, depending on which maximum amount of data to be administered is acquired. The maximum amount of data to be administered is determined at the conclusion of the contract on the homepage www.powerfolder.com.

c)

If the customer acquires a packet that entitles to store data on the server of dal33t GmbH the online-data security-agreement (Appendix I) applies additionally.

dal33t GmbH keeps the right after his own discretion to change the software, registration and royalty fee without notice or justification at any point in time.

A payment of the software registration-fee and royalty to dal33t GmbH due to the provisions of this contract is requisite regardless whether the program is modified or in original form.

Payments of the software-registration-fee and royalty to dal33t GmbH are settled in EURO insofar as the price list which can be seen on the internet homepage: www.powerfolder.com does not allow the payment in US Dollar.

After payment of the requisite software registration fee and royalty for the use of the program you will be submitted a license-key-file and a receipt by electronic post if you make the corresponding contact details (your e-mail-address) available.

You are not allowed to use a program if you have not paid the requisite software registration fee and royalty that is specified in the contract. The use of the program if you have not paid the requisite software registration fee and royalty means an infringement of the copyrights of dal33t GmbH regarding this software.

The fees and royalty is due and payable without reduction with the making available of the subject matter of contract.

All prices are excluding VAT that is applied by law. If the client does not pay or only part pays the agreed fees he comes in default at the latest 30 days after due date. If the client is in default dal33t GmbH is entitled to request interests in the amount of 8 % above the bases-interest-rate regarding the open money debt of the client.

 

§ 8

Protection of software and technical preconditions

If there are not explicitly granted rights to the client by this contract all rights regarding the subject matter of the contract especially copyrights as well as technical protection rights belong exclusively to dal33t GmbH. This applies too for modifications of the subject matter of the contract by clients.

The client is supposed to carefully keep the subject matter of the contract in order to avoid abuse. The client will make the program available to third persons only after written and previous consent of dal33t GmbH. Employees of the client do not count as third persons as well as any other person that stay at the client for the contractual use.

§ 9

Reissue of the software

If dal33t GmbH makes available a reissue of software regarding the old software all rights of the clients expire without explicit return request of dal33t GmbH as soon as the client uses the new software. dal33t GmbH grants the client a three month transition period in which both versions of the subject matter of the contract may be used side by side. By dal33t GmbH the approval is given when (i) the client assures dal33t GmbH in written that all original copies of the subject matter of a contract are handed out to third persons and copies created by him are eliminated and (ii) the third person declares in written his approval towards dal33t GmbH with the agreed use and handout conditions.

§ 10

Liability

The enforcement of liability claims against dal33t GmbH – especially because of the loss of data – is excluded unless there is the deliberate or gross negligent fault on the side of dal33t GmbH.

In any way dal33t GmbH is only liable if it is about contract typical and reasonably foreseeable damages.

In any case the liability is limited for each case of damage to € 500,00. The client is obligated in his own interest in the stock and the safety of the data to execute safety backups regularly. If he transgresses against this obligation dal33t GmbH is liable regardless of the above mentioned limitations in No. 1 to 3 at the occurrence of data loss only for the damage that would have occurred by properly and regularly safety backups.

§ 11

Test version

This license agreement applies for the application of the test version of PowerFolder and that due to the following provisions:

You may use the test version of PowerFolder without limits in time. The maximal to be administered amount of data is restricted to 5 GB (Gigabyte).

You may not circumvent the restriction of the maximal pack of data to be administered by which means whatsoever.

Software registration and royalty fee for the test version according to § 7 of the license agreement can be seen on the Internet: www.powerfolder.com

You are not allowed to sell, lease, to license or sublicense or distribute in any other way the test version.

If the customer acquires a test version that entitles to store data on the server of dal33t GmbH the online-data security-agreement (Appendix I) applies.

§ 12

Closing provisions

Additionally the general conditions of dal33t GmbH apply.

Exclusive place of jurisdiction regarding all disputes from or in connection with this contract is Düsseldorf. If dal33t GmbH raises claims dal33t GmbH is entitled to choose the place of jurisdiction at the domicile or registered office of the client.

This contract is governed – under inclusion of its conclusion and its construction – by German law under the exclusion of the United Nations Convention on contracts for the international sell of goods (CISG).

 

If any of the provisions of this contract should be invalid or contain an unaffected inadmissible determination of terms or contain a gap the efficacy of the other provisions remain unaffected. Insofar as the invalidity does not derive from a violation of section 305 ff. German Civil Code (application of general conditions) in lieu of the invalid provision a valid provision is agreed that comes closest to the intended economic purpose of the parties. The same applies in the case of a gap. In case of an inadmissible term the admissible term applies.

 

 

Appendix I

 

 

Online-data security-agreement

 

– Preamble/Applicability –

 

By this contract the client shall acquire the right to store via internet connection data on the server of dal33t GmbH. This contract applies additionally to the license agreement insofar as the client has chosen besides from the license agreement an agreement for online-data storage. This agreement applies under the exclusion of the license agreement insofar as the client solely agreed to an online data storage agreement. The provisions of the license agreement apply only insofar as referred to in this contract.

Provisions

dal33t GmbH makes for the client system-resources on a server available. The client may store data on this server. On this server the contents are kept on demand for the client to download. The storage of the data is effected online via the internet presentation of dal33t GmbH www.PowerFolder.com. The data transfer has exclusively to be effected via the program made available online by dal33t GmbH on his storage media. The client has no right to request a different kind of data transfer. This also applies for the demand of the data stored by the client.

dal33t GmbH is entitled to carry out maintenance works for in total 10 hours a month. During the maintenance works the before mentioned services are not available. dal33t GmbH will indicate to the client duly – at least one day – previous to the maintenance works unless the maintenance works require not more than a quarter of an hour.

The backups are effected perpetually and always when new data from the client is uploaded on the online storage. The data is mirrored that means redundantly saved on the online storage server. The savings are always carried out for the whole server content. The client has no claim to request delivery of the storage media.

The supplier is entitled to adjust the hard- and software used for performing the service to the state of the art. Insofar as this results in additional requirements regarding the contents uploaded on the server by the client the supplier will notice this additional requirements to the client. The client will immediately after receiving the notice decide whether the requirements shall be fulfilled.

The client shall not upload on the online storage contents that are illegal or violating the laws or regulatory stipulation or rights of third persons. The client shall not upload contents that endanger the safety and integrity of other data uploaded on the server of the supplier. The client exempts the supplier from claims of third persons including the costs of the claim.

a)

If the data uploaded by the client contain contents that are illegal or are violating the laws or regulatory stipulation, statutes, ordinances or rights of third persons dal33t GmbH may deactivate or uninstall or remove these data. In such a case dal33t GmbH may deactivate the access and uninstall and remove all of the data of that client if such measure seems to be appropriate at the discretion of dal33t GmbH. The supplier will immediately inform the client about this measure.

b)

If the data uploaded by the client endanger or impair the operation of the server or of the communication network of the supplier or the security and integrity of other data that are uploaded on the server of the supplier dal33t GmbH may deactivate or uninstall or remove these data. The supplier will immediately inform the client about this measure.

For the access to the storage designated to the client the client gets a lock-in name and a suitable password.

The contents uploaded by the client on the therefore designated online storage may be protected by copyright law or by data protection law. The client grants the supplier the right to copy the contents uploaded on the server for the purpose of data backups. For the violation of provisions of the data protection law by the uploading of data on the server of the supplier the client is held liable.

The client is not allowed to leave the services provided by the supplier to third persons for business purposes.

a)

The fees for the services provided by the supplier depend on the price-lists valid at the point in time of the conclusion of the contract. The price-list is displayed on the homepage of dal33t GmbH www.PowerFolder.com. Besides that regarding the fees the provisions of sec. 7 of the license agreement apply.

b)

Every client acquires – according to the above mentioned price-list – a certain storage capacity (e. g. 50 GB, 100 GB, 250 GB etc.) for a certain period of time which determines how much data the client may store on the online storage center for a certain period of time. The royalty also depends on the size of the acquired storage capacity.

c)

If the client uploads more data than is allowed by the required storage capacity the access will be closed as long as either (i) a bigger storage capacity is acquired or (ii) the client has removed data from the server.

Performance of the service by the supplier is bound to the condition that the client duly meets his payment obligations. If the client does not meet his payment obligations the supplier may cancel the contractual relationship for cause without period of notice.

a)

Damage claims of the client against dal33t GmbH exist in all cases of contractual and out of contractual liability in case of deliberation, gross negligence as well as the acceptance of a guarantee in full amount. In all other cases there are damage claims only in case of infringement of an important contractual obligation if furthermore by that the purpose of the contract is endangered however only in the amount of the damage that is reasonably foreseeable.

b)

The liability restrictions apply accordingly for employees and agents of dal33t GmbH. The liability restrictions apply not for personal damage due to liability according to the product liability law.

c)

Except in the case of deliberation or gross negligence the liability is restricted in any case to the amount of € 1.000,00 in each damage case.

This contract may be concluded with different tenures that being accordingly to the offer of the pricelist that is displayed on the homepage www.PowerFolder.com. Insofar as the contract is concluded for one year this contract is renewed automatically for one year if the client does not cancel the contract by e-mail at the latest two months previous to the expiration of the contract. In all other cases the contract goes on without period in time and may be cancelled at any time by e-mail at the end of the month.

The right to cancellation by cause remains unaffected. After the termination of the contractual relationship the supplier makes available to the client the stored contents on the storage space designated for the client. Rights of retention of the supplier remain unaffected regardless for which reasons. A cause for cancellation for dal33t GmbH exists if because of missing technical compatibility by which token whatsoever the data of the client cannot be uploaded on the storage media therefore provided by dal33t GmbH. The same applies if the program “PowerFolder” for reason of missing technical compatibility or false operation does not function flawlessly on the computer of the client.

Additionally the general conditions of dal33t GmbH apply.

Exclusive place of jurisdiction regarding all disputes out of or in connection with this contract is the place of residence of dal33t GmbH in Düsseldorf (Germany). If dal33t GmbH raises claims dal33t GmbH is entitled to choose the place of jurisdiction at the domicile or place of office or residence of the client.

This contract is governed – under inclusion of its conclusion and its construction – by German law.

a)

Insofar as the client has only acquired a demo-/test-version this contract applies accordingly.

b)

If the demo-/test-version enables the client to upload data on the server, dal33t GmbH is entitled to deactivate the access and uninstall and remove all of the data of that client at any time.

If any of the provisions of this contract should be invalid or contains an inadmissible determination of terms or contains a gap the efficacy of the other provisions remain unaffected. Insofar as the invalidity does not derive from a violation of sec. 305 ff. German Civil Code (application of general conditions) in lieu of the invalid provision a valid provision is agreed that comes closest to the intended economic purpose of the parties. The same applies in the case of a gap. In case of an inadmissible term the admissible term applies.