Software License Agreement (End User License Agreement)
of Sematell GmbH, Saarbrücken
for applications purchased through the Genesys app Foundry or the Genesys homepage.
Definitions of the terms used (e.g. "personal data" or "processing") can be found in Art. 4 GDPR.
Status: January 13, 2022
Before using the Application under this License, please read this End User License Agreement ("Agreement") carefully. This Agreement is a legal agreement between Sematell GmbH ("Licensor") and the entity or person who has downloaded or otherwise accesses and uses the Application and thereby agrees to be bound by this License Agreement ("Licensee").
The Licensee plans to use the Licensor's software products for a limited period of time. The Licensor therefore grants the Licensee the use of its software for a limited period of time on the basis of this Agreement and, for this purpose, provides the Licensee with this software in the version current at the time of conclusion of the Agreement.
The application is protected by copyright as the intellectual property of the licensor. Unauthorized copying, distribution or use of the software or any part thereof may result in civil and criminal penalties and will be prosecuted to the fullest extent of the law. The software is licensed and not sold.
By clicking the "Accept"and providing the information requested to download/access the Application, you acknowledge that you have read and understood this Agreement.
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data, on the free movement of such data and repealing Directive 95/46/EC (the General Data Protection Regulation).
Software means the computer program purchased in the Geneys App Foundry or on the Genesys homepage, as described in the corresponding App or homepage.
2. SUBJECT MATTER OF THE CONTRACT
2.1 The subject matter of this Agreement is the provision of the Software for the term of the Agreement together with the granting of the rights required for its use in accordance with the Agreement pursuant to Section 4.
2.2 Installation and configuration services are not subject matter of this contract.
3. CONCLUSION OF THE CONTRACT
3.1 By clicking the "Accept" button and providing the information requested to download/access the Application, Licensee represents that: (i) she is at least 18 years of age; (ii) in the event she is not acting on her own behalf, she is authorized to agree to these terms and conditions on behalf of Licensee; (iii) Licensee agrees to be legally bound by the terms and conditions of this Agreement, a contract is formed with the contents set forth herein.
3.2 If Licensee or the person clicking the button referred to in Section 3.1 does not agree to the terms of this Agreement, neither You nor Licensee may download and/or access and use the Application.
3.3 Licensee further agrees that checking the box and providing the information requested on the Site constitutes an electronic signature and that Licensee forms, executes, enters into and otherwise acknowledges that it agrees to the terms of this Agreement.
4. GRANTING OF RIGHTS
4.1 Subject to the terms and conditions of this Agreement and in consideration of payment of the License Fee, Licensor hereby grants to Licensee a non-exclusive, non-transferable, limited license, without the right to sublicense, to install (if applicable), access and use the Application or Software for the license or subscription term specified in the Ordering Documents solely for Licensee's internal business purposes for use by Licensee's employees and contractors performing services solely on Licensee's behalf ("Users") and for no other purpose. In the event that Licensor develops and releases a newer version of the Application, Licensee shall not be entitled to such newer version under this Agreement.
4.2 If the Licensee violates any of the above provisions, all rights of use granted under this Agreement shall immediately become invalid and shall automatically revert to the Licensor. In this case, the Licensee shall immediately and completely cease using the Software, delete all copies of the Software installed on its systems and delete any backup copies that may have been made.
5. OWNERSHIP OF THE APPLICATION
All ownership and intellectual property rights in the Application (including, but not limited to, images, photographs, animation, video, audio, music, text, and apps included in the Application), the Documentation, and any copies of the Application or Documentation are owned by Licensor. Licensee agrees that no ownership interest in the Application or Documentation is transferred to it and that Licensor reserves all rights not expressly granted to Licensee under this Agreement.
6. RUNNING TIME
This Agreement shall remain in full force and effect as of the date hereof until terminated in accordance with Section 10.
7. LICENSE FEE
Licensee shall pay Licensor or its authorized reseller (if required by Licensor) the license fees set forth in Licensee's Order Documents ("License Fee"). Unless otherwise specified in Licensee's Ordering Documents, Licensee shall pay the License Fees prior to installing or accessing the Application.
8. USE AUDIT
Licensor shall have the right, with 15 business days' notice, to conduct an audit of Licensee's use of the Application and Documentation, at Licensee's expense, during Licensee's normal business hours, to verify compliance with this Agreement. Licensee shall provide Licensor or an authorized representative with access to record, hardware and personnel to conduct the audit.
9. CESSION SUBLICENSING
Neither this Agreement nor any rights or obligations hereunder, in whole or in part, may be sublicensed, assigned or otherwise transferred by Licensee.
10.1 Licensee may terminate this License at any time by uninstalling or no longer accessing the Application and returning or destroying all Documentation and related materials, together with all copies, modifications and merged portions in any form.
10.2 Licensor may suspend access to the Application or terminate this Agreement and Licensee's license to the Application if Licensee breaches any provision of this Agreement and such breach is not cured for a period of 10 days after written notice of the breach is given to Licensee. Licensee shall not be entitled to a refund of License Fees if this Agreement is terminated or access to the Application is disabled. Upon such termination, Licensee agrees to uninstall or cease access to the Application and destroy any Documentation together with all copies, modifications and merged portions in any form and provide written confirmation of destruction and non-use to Licensor upon Licensor's request.
10.3 Clauses 5, 8 and 11 to 15 shall remain in full force and effect even after termination of the contract.
11.1 The Licensor shall be liable without limitation for intent or gross negligence, for injury to life, limb and health, in accordance with the provisions of the Product Liability Act.
11.2 In the event of a slightly negligent breach of an obligation that is essential for achieving the purpose of the contract (cardinal obligation), the liability of the Licensor shall be limited in amount to the damage that is foreseeable and typical according to the nature of the transaction in question.
11.3 The Licensor shall have no further liability. In particular, the Licensor shall not be liable for initial defects unless the prerequisites of the present points regulated in this clause are met.
12. RELEASE FROM LIABILITY
Licensee agrees to indemnify and hold harmless Licensor, together with its officers, directors, employees, licensors and agents (including Genesys pursuant to Section 14), from and against any and all liability (including reasonable attorneys' fees) arising out of any claim made against Licensor relating to: (i) Licensee's business methods or processes or its data used with or input to the Application; or (ii) Licensee's or any User's use of the Application or Documentation in violation of this Agreement, including, without limitation, claims for which Licensee's or User's unauthorized use infringes any intellectual property rights (including, without limitation, patent, trademark and copyright rights) of any third party. Licensee shall bear the cost of any such defense and pay all damages and attorneys' fees attributable to any such claim.
13. EXCLUSION OF WARRANTIES
Except for the warranties expressly set forth in this Agreement, to the extent permitted by applicable law, the license is provided or transferred "as is" without warranty of any kind on the part of Licensor or any other person involved in creating, producing, distributing or delivering the Application. Licensor makes no representations or warranties as to the reliability, accuracy, completeness, security or suitability of the material contained in the Application or Documentation. Licensor does not warrant that the Application will be uninterrupted, error-free, free of viruses or other harmful components, compatible with any hardware or system software configuration, or that it will meet its requirements.
14. INCLUSION OF GENESYS
If Licensor offers the Application through the AppFoundry Marketplace or otherwise directly or indirectly through Genesys Telecommunications Laboratories, Inc. or its affiliates (collectively, "Genesys"), Licensee acknowledges and agrees that Licensee's sole recourse for a warranty claim shall be through Licensor and that Genesys shall have no liability to Licensor with respect to the Application, Documentation or use thereof. Licensee agrees that Genesys, as a distributor or reseller of the Application, is an intended third party beneficiary of this indemnification.
15.1 Licensee may transfer rights and obligations under or in connection with this Agreement to third parties only with the written consent of Licensor.
15.2 Offsetting shall only be permitted against undisputed or legally established claims of the Licensor.
15.3 Amendments or supplements to this contract must be made in writing. This shall also apply to the amendments or cancellation of this clause.
15.4 The Licensee's general terms and conditions shall not apply.
15.5 This contract shall be governed exclusively by German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UN Sales Convention).
15.6 The parties are aware that the Software may be subject to export and import restrictions. In particular, licensing requirements may exist and/or the use of the Software and its related technologies may be subject to restrictions abroad. Licensee shall comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations. The fulfillment of the contract by the Licensor is subject to the proviso that no obstacles based on national and international regulations of export and import law as well as no other legal regulations prevent the fulfillment.
15.7 The exclusive place of jurisdiction shall be Saarbrücken, provided that each party is a merchant or a legal entity under public law.
15.8 Should individual provisions of this contract be invalid, this shall not affect the validity of the remaining provisions. The contracting parties shall endeavor to replace the invalid provision with a provision that comes closest to the legal and economic objective of the contract.