End User License Agreement (EULA)
1. Subject Matter and Definitions
1.1 This End-User License Agreement (“EULA”) governs the use of the DECOIT® SMS Gateway as well as the files and software contained in the physical appliance.
1.2 “Customer” under this EULA is that natural or legal person, public body or authority that has acquired a subscription for DECOIT® SMS Gateway either from DECOIT® GmbH (“DECOIT“) or from a third party and is identified as such in the respective agreement. If, for example, a subsidiary has acquired the subscription, the parent and sister companies of that subsidiary will not be considered Customers within the meaning of this EULA. Similarly, subsidiaries will also not be considered Customers within the meaning of this EULA when a subscription is acquired by their parent company.
2. DECOIT® SMS Gateway License
2.1 Use of the software: DECOIT® GmbH grants the Customer a non-exclusive, perpetual, non-transferable right to use the files in accordance with the purposes specified in section 4 below. This usage is only permitted on the delivered system which is owned by the Customer or whose exclusive use is assigned to the Customer. The creation of further instances on the delivered or another system is not permitted.
2.2 Business Purposes: The Customer may only use the files for its own business purposes. If the Customer also wishes to use the files for the business purposes of third parties, e.g., in conjunction with a monitoring system that the Customer operates for or makes available to a third party, additional licenses need to be purchased.
2.3 Rights of use: No further rights of use (including, in particular, rights to copy and/or distribute the files and/or make them available to the public or any use that exceeds the restrictions of use) are granted unless expressly agreed in text form (e. g., by postal mail, e-mail or fax) or required by law.
3. Open source licenses
3.1 The software contains open source components: The rights of use for those files are governed exclusively by the license applicable to the respective file or the copyright act, respectively.
3.2 On the basis of the applicable open source license or by law, the Customer will be comprehensively entitled to use the files, e. g. to copy, install and load them into the main memory. However, the modification or redistribution of unmodified or modified files may trigger license obligations. The Customer will be solely responsible for reviewing the relevant license terms and ensuring compliance with such terms.
4. Purposes of Use of the DECOIT® SMS Gateway and Duties of the Customer
4.1 The DECOIT® SMS Gateway is designed to send and receive text messages in conjunction to IT monitoring software. Via REST interface the DECOIT® SMS Gateway is connected to the IT monitoring software, thus enabling notification dispatch, status request regarding text message dispatch as well as a listing of sent and received text messages. The DECOIT® SMS Gateway is not designed to monitor systems whose outage could result in bodily injury or loss of life.
4.2 When setting up the DECOIT® SMS Gateway, the Customer must take appropriate measures in accordance with the criticality of the systems to be monitored to ensure the reliability of notification (e. g., high availability /redundancy) and minimize the impact of possible outages.
4.3 The DECOIT® SMS Gateway can be used to carry out automated actions. Automated actions can cause serious problems, including the outage of systems. When setting up and/or scripting such actions, the Customer must therefore exercise extreme care in order to limit possible effects.
5. Protection of the Software
5.1 The DECOIT® SMS Gateway is a product of DECOIT® GmbH. The present EULA does not authorize the Customer to distribute the DECOIT® SMS Gateway or any part thereof. The DECOIT® SMS Gateway may only be distributed on the basis of a separate written agreement. If the Customer distributes open source components of the DECOIT® SMS Gateway under an applicable open source license, the Customer must first remove all product data of the DECOIT® SMS Gateway.
5.2 Unless expressly granted under this Agreement, all rights in the Proprietary Software (and all copies thereof produced by the Customer), including but not limited to copyrights, trade secrets, rights to or in inventions and industrial property rights, are the exclusive property of DECOIT® GmbH. The Customer may not use the Proprietary Software for the purposes of obtaining trade secrets of DECOIT® GmbH.
5.3 The Customer will carefully store all appliances of the DECOIT® SMS Gateway and the login data for the download area in order to prevent abuse. The Customer will make the software (whether unchanged or modified by the Customer) available to third parties only with the previous written consent of DECOIT® GmbH. The login data may be entrusted only to employees who are administrators or users of the software.
5.4 The Customer may not alter or remove copyright notices, marks and/or control numbers or marks of the DECOIT® SMS Gateway. For alteration or modification of open source components, the duties of the Customer will be based exclusively on the applicable open source license.
5.5 In the event that the Customer transfers ownership of storage media, storage devices or other hardware used to store software covered by this Agreement (in its entirety or in part, whether unchanged or modified) (i) to third parties or (ii) relinquishes actual possession of such media, devices or hardware, the Customer will ensure that the stored software is first completely and permanently deleted. In such cases, the Customer may decide at its own discretion whether or not to delete open source components as well.
5.6 The Customer may not sell the DECOIT® SMS Gateway appliance to third parties without purchasing a new user license.
6. Applicable Law and Jurisdiction
6.1 In the event that any provision of this Agreement should be or become invalid in part or in its entirety, this will not otherwise affect the validity of the remaining provisions. The parties agree to substitute for any such invalid provision a valid provision that most closely approximates the economic effect and intent of the invalid provision.
6.2 The Agreement will be governed by German law, with the exception of those provisions that would result in the application of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods (CISG) will not apply.
6.3 The courts of Bremen, Germany, will have exclusive jurisdiction over any disputes arising out of or in connection with this Agreement, including the validity of the Agreement. DECOIT® also reserves the right to bring action against the Customer before the courts of the Customer’s principal place of business.