Information about Paessler AG
Registration Court: Amtsgericht Nuremberg,
Registernummer HRB 23757
VAT-ID: DE 217564187
Paessler AG operates a website under the domain of https://www.paessler.com for commercial purposes. Downloaded software is offered via the Internet.
E-Mail: [email protected]
T: +49 911 93775-0
F: +49 911 93775-409
General Terms and Conditions
GENERAL TERMS AND CONDITIONS OF PAESSLER AG
Sec. 1. Scope
(1) The applicability of these General Terms and Conditions presupposes that a contract between Paessler AG (registered on the Commercial Register of the Nuremberg Local Court at HRB 23757, hereinafter "we") and the “customer” is concluded.
(2) Third parties that distribute our services to their contractual partners may use the contract with their respective contract partner to establish their own terms of contract, which may deviate from our General Terms and Conditions. The obligation on the part of the third party to effectively include our Special Terms and Conditions for the licensing of software in its contract with its respective partner shall remain unaffected.
Sec. 2. Contractual basis
(1) Contracting parties are we and the customer. Third parties shall neither be entitled nor obliged by this contract. The contractual provisions also apply to the legal successors of the respective contracting parties.
(2) Our General Terms and Conditions are intended to be incorporated into contracts that are used to distribute our services to our customers. They do not apply to contracts for the procurement of services by us.
(3) Our offers and services are exclusively for entrepreneurs as well as legal entities under public law and separate funds under public law. An entrepreneur is a natural or legal person or a partnership with legal capacity, that execute their commercial or independent professional activity when a legal transaction is concluded, partnership with legal capacity is a partnership with the ability to acquire rights and to pay debts.
(4) Terms and conditions of the customer that deviate from our General Terms and Conditions or Special Terms and Conditions shall not be deemed incorporated into, or to constitute the substance of, this agreement, whether by silence or by references to letters of the customer with such contract terms, or by unreserved acceptance of an offer from the customer or by our unreserved performance of services. Individual agreements deviating herefrom shall have priority.
(5) The parties are in agreement that our General Terms and Conditions shall also apply to further contracts for the acquisition of licenses for our software and to contracts for the maintenance of our software.
(6) Our Special Terms and Conditions (e.g. in respect of software licensing and software maintenance) shall, in the case of any conflicts or discrepancies, take precedence over our General Terms and Conditions. Individual agreements made shall take precedence over the General Terms and Conditions.
(7) If we should provide a translation of the contract texts to the customer in a language other than German, such translation is provided only for informational purposes, and shall not constitute an integral element of the contract; in cases of discrepancies between the German and the foreign-language version, the German version shall apply exclusively.
Sec. 3. Formation of contract
(1) Our offers to conclude a contract are subject to change and non-binding, except where our offer expressly otherwise provides.
(2) Where we make an offer to our customer to enter into contracts with us by electronic transaction via our website, then in addition to (1), the following shall apply:
1. Offers on our website merely constitute a non-binding request to the customer to submit offers to conclude a contract.
2. Where the customer clicks on the button labelled "Buy now" or on a button with a comparable text (e.g. "Place a binding order"), the customer is deemed to submit a binding offer to conclude the contract. The customer shall be bound by its order until the expiration of a period of seven calendar days from the date of placing its order.
3. We shall provide reasonable, effective, and accessible technical means to the customer by which the customer may ascertain and correct data entry errors prior to final placement of its order. Prior to placing its order, the customer will be able to review and amend the order details.
4. After placing the order, the customer shall receive an email from us containing an automated confirmation of receipt reflecting the substance of the customer's order. This confirmation of receipt does not constitute our binding acceptance of the customer's order, but rather merely furnishes documentation of the fact that the customer's order was received by us, except where the email expressly declares our acceptance of the customer's order in addition to providing confirmation of receipt.
5. Contracts shall only be deemed formed at such time as the customer receives our confirmation of acceptance. We shall confirm acceptance by a communication forwarded by email, by forwarding a license key or by forwarding an invoice to the customer. We shall be entitled to accept the customer's order up to the end of seven calendar days from the date the customer placed the order. Silence on our part in response to the customer's order shall not constitute acceptance.
Sec. 4. Special right of rescission in respect of software licensing
(1) Where we enter into a contract for licensing of software with the customer, we are deemed to grant the customer a right to rescind the contract, subject to the following provisos:
1. The right of rescission is vested exclusively in our end customer. In particular, sales partners such as distributors or re-sellers are not entitled to exercise it.
2. The right of rescission shall cease upon the expiration of a period of 30 calendar days from the date the contract for the licensing of the software was formed.
3. Rescission is effected by a declaration made to us. In order to be valid, such declaration must be in written form. The declaration is not required to contain any grounds of justification.
4. Upon exercise of rescission, we shall refund the compensation paid by the customer to it within 30 calendar days (depending on the tax position, this may in certain cases be after deduction of any taxes previously remitted by us), and shall do so concurrently at the same time as the customer's de-installation and deletion of the software and return of the license to us.
5. Neither of the parties shall be obliged to disgorge or provide compensation in respect of use that takes place prior to rescission.
(2) The provisions set forth above neither exclude nor limit the customer’s statutory rescission rights.
Sec. 5. Our services
(1) We bear an obligation to perform the services agreed. The scope of our services shall be determined by the specification of services in effect as of the time of our offer (in particular: the user documentation https://www.paessler.com/support/manuals) and, by way of supplementation, shall also be determined by the Special Terms and Conditions applicable in each case, e.g. terms and conditions on licensing or maintenance of our software.
(2) Descriptions of services do not constitute any warranties or representations regarding the qualities of our services.
(3) We will enable customers to inform themselves regarding the qualities of our software prior to contracting. The customer shall bear responsibility for ascertaining whether our software meets its requirements and expectations.
(4) We are entitled to partially perform services except where this is unreasonable to the customer.
(5) In addition, we shall be entitled to make use of third parties to perform our services.
(6) Deadlines for performance shall be deemed extended by periods during which we are prevented by circumstances for which we bear no fault from performing the service, as well as by a reasonable start-up period after the obstacle to our performance has ceased. The same shall apply in respect of the period in which the customer fails to perform acts of cooperation.
Sec. 6. Software licensing
(1) We shall provide our software to the customer for its use within the agreed scope of use, in exchange for the agreed compensation, and this shall not be subject to any limitation in time or geographical scope and shall be governed by the law of sales, except where the parties have otherwise agreed.
(2) As a part of our software, we shall provide the user documentation for our software to the customer; such documentation is provided exclusively in electronic form in English, in a format of our choosing.
(3) Delivery of the software shall be effected by providing the software for internet download and forwarding to the customer the link with which to download it ("Download Link") as well as the license key.
(4) We shall provide our software to the customer exclusively in executable form (object code). We do not bear any obligation to supply source code to the customer.
(5) Our software is subject to legal protections. In line with the contract with the customer and with the Special Terms and Conditions on Software Licensing, we grant the customer a non-exclusive right to use the software, within the scope agreed in our contract; this right is unlimited as to its term or geographical scope.
Sec. 7. Compensation and terms of payment
(1) The customer is obliged to pay the agreed compensation. The compensation is due immediately, subject to deviating provisions.
(2) All prices are quoted net of the applicable statutory VAT in each case, if any. The customer shall be responsible for any customs duties and similar charges when services are supplied abroad.
(3) We do not assume the costs of any funds transaction by which the customer performs its obligation to pay the compensation.
(4) Deduction of a cash discount is only permitted on the basis of a separate agreement, which is only valid if made in written form. Any individual agreements departing herefrom shall take precedence.
(5) The customer is permitted to exercise a right of set-off against our claim for payment of the compensation, without any contractual limitations, and in accordance with the provisions of applicable law, in respect of claims for payment arising out of the contract based on our failure to perform our supply obligation or due to defects of the goods or services. The customer may only exercise a right of set-off in respect of claims other than those listed in the first sentence hereof where such claims are undisputed or have been legally adjudicated or are ripe for decision in connection with litigation.
(6) The customer shall only be entitled to exercise a right of retention to the extent that its counter-claim is based on the same contractual relationship.
Sec. 8. Customer's duties of cooperation
(1) Our performance of services in line with the contract, and, in particular, in a timely manner, shall be subject to the condition precedent that the customer has previously gratuitously performed its duties of cooperation in line with the parties' contract and, in particular, has done so in a timely manner. Where the customer fails to perform its duties of cooperation, or fails to perform them in line with the parties' contract, our duty to perform services shall cease to the extent that, and for the period that, performance of such services is premised on the customer's prior performance of its duties of cooperation. Our claim for compensation shall remain unaffected thereby. The customer shall bear the disadvantages and additional costs arising out of a breach of duties and obligations and, where such costs are the result of its failure to perform its duties of cooperation.
(2) It shall be the customer's responsibility, at its own cost and expense, to procure the necessary system prerequisites for operating our software, and in particular, to keep the hardware, third-party software and Internet connections required for this purpose available.
(3) It shall be the customer's responsibility to assert written claims to us in respect of deficiencies and defects of our services, in a verifiable and detailed form, indicating the information that is expedient to enable us to ascertain defects, and in particular, indicating the steps in the working process that led to the occurrence of the defect, its impacts and the way in which the defect manifested itself.
(4) It shall be the customer's responsibility to download new program versions of software after we have been informed of and have eliminated any deficiency, and to install the same, except where this is neither possible for the customer nor reasonable to do so.
(5) Where we do not undertake to assume responsibility for storing data for the customer (e.g. to store archive data for the customer), it shall be the customer's responsibility to itself secure its data in line with the state-of-the-art, and to do so prior to installing our software for the first time and prior to installing new program versions of our software, wherever there are indications that a fault may be present, which could, upon an informed assessment, be due to a cause lying within our software, and at intervals that are appropriate to the application such that the customer is able to restore the data with reasonable efforts.
(6) It shall be the customer's responsibility to secure the installation files required for new installation and the associated license keys.
Sec. 9. Customer's rights in the case of software defect
(1) The customer is entitled to assert rights for defects of the software in line with what is provided by law, except where the Parties have otherwise agreed.
(2) In the event of any substantive defect or fault of the software, we shall be obliged and entitled, at our option (which we shall exercise within a reasonable time) initially to remediate (e.g. eliminate the fault), or to supply a replacement (e.g. furnish a new program version which is free of defects). Elimination of the defect may also consist of our demonstration to the customer of the reasonable options in line with the contract for avoiding the impacts of the fault.
(3) In the event of any defect in title of the software, we shall be entitled and obliged at our option (which We shall exercise within a reasonable time) to initially effect subsequent performance by procuring a legally valid option for using the software or by using replacement software or modified software of equal value. The customer shall accept the new program version if the scope of functionalities as required by the parties' contract is preserved and where it is reasonable to require the customer to accept this.
(4) Where subsequent performance has failed or where the reasonable time set by the customer for subsequent performance has elapsed to no avail, or where such time may be dispensed with pursuant to applicable law, the customer may, in line with the rules of applicable law, resile from the contract or abate the compensation to a reasonable extent. However, where the defect is non-material, the customer shall have no right of rescission.
(5) Our liability to pay compensation for damages and losses and frustrated expenditure shall be limited in line with secs. 11 and 12.
(6) Where, following notification of a substantive defect by the customer, we perform work or services to search for or eliminate the fault without being obliged to do so, the customer shall be liable to compensate us for any damages or expenditures arising from our works and services to search for or eliminate the defect, except where the customer has not breached any obligations in reporting the defect or is not responsible for its breach.
Sec. 10. Third-party Intellectual Property rights
The customer shall notify us promptly in writing where third parties assert Intellectual Property rights (e.g. copyright or patent rights) in the software. The customer shall support us to a reasonable extent in defending against any such claims.
Sec. 11. Liability
(1) Our liability shall be governed by the provisions of applicable law, without any contractual limitations as follows
a) for intentional acts;
b) for losses based on the fact that we fraudulently conceal a defect of the software or have assumed a warranty for the qualities or features of the software;
c) for losses arising out of injury to life, limb or health, based on an intentional or negligent breach by us or otherwise on an intentional or negligent act of one of our legal representatives or vicarious agents;
d) for losses based on intentional or grossly negligent breach by us or otherwise on intentional or grossly negligent acts of one of our legal representatives or vicarious agents;
e) under the Product Liability Act.
(2) In all cases other than those defined in sub-para. 1, our liability shall be limited to compensation for losses which are typical to the contract and foreseeable, where the loss was based on a negligent breach of material duties by us or by one of our legal representatives or vicarious agents. Material duties are duties, the performance of which are sine qua non to proper performance of the contract and as to which the customer regularly relies and is entitled to rely on their being complied with.
(3) In cases other than those defined in sub-paras. 1 and 2, We hereby disclaim our liability for negligence.
(4) The defence of contributory negligence shall remain unaffected hereby.
(5) The provisions set forth above in respect of our liability for damages shall apply to all contractual and extra-contractual claims for damages against us, irrespective of the legal bases thereof, and mutatis mutandis to our liability for compensation of frustrated expenditures.
Sec. 12. Prescription of customer's claims for defects of software
(1) The following shall be deemed prescribed in line with the provisions of applicable law, without any contractual limitation:
a) claims of the customer against us in the case of a liability for intentional acts or omissions;
b) claims of the customer against us for defects of the software where we have fraudulently concealed the defect or where we have assumed a warranty for the features or qualities of the software;
c) claims of the customer against us for defects of the software where the defect consists of an in rem right of a third party, on the basis of which disgorgement of the software may be demanded;
d) claims of the customer for compensation of losses
aa) arising out of injury to life, limb or health, based on an intentional or negligent breach by us or otherwise on an intentional or negligent action by one of our legal representatives or vicarious agents;
bb) based on an intentional or grossly negligent breach by us or otherwise on an intentional or grossly negligent act of one of our legal representatives or vicarious agents;
cc) under the Product Liability Act.
(2) In cases other than those listed in sub-para. 1, the prescription period for claims of the customer for substantive defects of the software shall be one year from the date the software was delivered.
Sec. 13. Data protection and data security
(2) Where we collect, process or use personal data for the customer on the basis of a contractual obligation, or, to the extent that we undertake testing or maintenance of automated processes or data processing systems at the direction of the customer and it is not possible in this context to rule out access to personal data, we shall not be obliged to perform our services until such time as the customer has furnished the requisite legal prerequisites to us, e.g. has concluded an agreement on contract data processing with us which satisfies local law.
Sec. 14. Export controls
(1) All of our products are subject to export control regulations. The customer hereby undertakes that it shall comply with the export control regulations applicable to its country. These laws include limitations regarding the destination of goods and services, the end-users thereof, and the end use thereof.
(2) The customer furthermore acknowledges that in all cases it is prohibited from exporting, re-exporting, selling/or passing on or disclosing the software in all of the countries listed under the internet address given below, and that even activation of the software is, in all cases, prohibited in such countries: https://www.paessler.com/company/terms/export-control.
(3) If the customer knows or has suspicions that impermissible exporting of the services by a third party might be taking place as set forth in the provisions shown above, the customer is prohibited from disclosing or passing on the products to any such third party. In addition, subject to our prior consent in individual cases, the customer is prohibited from disclosing or passing on anything to persons or institutions as to whom the customer knows or has reason to suspect that such parties may be involved in designing, developing or producing nuclear technology or nuclear, biological or chemical weapons.
Sec. 15. General provisions
(1) This contract shall be governed by the law of the Federal Republic of Germany, but excluding application of the United Nations CISG.
(2) Jurisdiction and venue for all disputes arising out of or in connection with this agreement between us and any customer who is a legal merchant, legal entity under public law or separate funds under public law shall be vested in the courts at our place of registration. Mandatory legal rules regarding exclusive jurisdiction and venue, including sec. 689 (2) of the Civil Procedure Code ([German acronym:] ZPO) shall remain unaffected hereby.
(3) No amendments or addenda to our agreement with the customer shall be valid unless made in written form. The foregoing also applies to any rescission of the 1st sentence hereof. Individual agreements departing herefrom shall take precedence.
(4) To the extent we have agreed with the customer to written form for declarations (including under sub-para. 3), or so agree in future, the written form requirement will also be deemed met where the communication is provided by fax, email or, at the time of contracting, an exchange of declarations satisfying the written form requirements. Sec. 127 (2) and (3) German Civil Code [German acronym: BGB] shall, however, have no application in any further and other respects.
(5) Where, prior to or at the time of contracting, the customer furnishes an email address for forwarding our contract declarations, further declarations by us of legal relevance made to that email address shall likewise be deemed to have been received by a person who is authorized to accept service on behalf of the customer.
(6) Where terms of the agreement have not become incorporated into the parties' contract, whether in whole or in part, or where they have become invalid, this shall not affect the validity of the remaining provisions of this agreement. To the extent that the terms have not become incorporated into the parties' contract or are not invalid, the substance of the parties' contract shall be governed in line with the statutory rules.
Mandatory information for customers in respect of contracts entered into electronically (pursuant to sec. 312i (1) (2) BGB, in conjunction with Art. 246c of the Introductory Law to the German Civil Code [German acronym:] EGBGB)
1. The individual technical steps giving rise to formation of contract are described in Sec. 2.
2. The customer's order data, including the contract terms and conditions, shall be stored by us for purposes of performing the contract with the customer. The customer may archive the order data by storing the web page which is shown to the customer at the time that its order is complete, and by storing our email confirming receipt of its order.
3. The means by which the customer may ascertain and correct data entry errors prior to providing its registration declaration is described in Sec. 2 (2) (3).
4. The order process for contracting is carried out in German or in English or in Spanish or in French. The contract terms and conditions themselves are provided in German, and an English translation thereof is likewise provided.
5. We have not undertaken to comply with any codes of conduct.
SPECIAL TERMS AND CONDITIONS ON LICENSING THE STANDARD SOFTWARE PRTG NETWORK MONITOR
Sec. 1. Scope
(1) The following terms and conditions provide specific rules on the scope of the customer's right to use the standard software PRTG Network Monitor (hereinafter referred to as “software”).
Sec. 2. Definitions
The following terms shall have the following meanings in these Terms of License:
1. User: User working with the software.
2. System: Physical computers, virtual systems et al. devices such as security cameras, routers, etc.
3. Core Server: The central monitoring entity for a PRTG installation, providing storage and processing of monitoring data, dispatch of notifications, User administration, webserver etc.
4. Failover Node: A Core Server that is able to assume monitoring functions in a cluster where the Master Node cannot be reached.
5. Master or Master Node: A Core Server that permanently takes on the Master role in a Cluster.
6. Cluster: Combination of one Master Node and one or more Failover Nodes, which is created to increase the responsiveness of the System.
7. Remote Probes: Distant probes that collect monitoring data and supply it to the Core Server.
Sec. 3. Rights to the software; licenses
(1) The software, including the user documentation, is subject to legal protections, and, specifically, copyright protection.
(2) The customer may only use the software to the extent permitted by the contract and, unless otherwise agreed by contract, to the extent permitted by applicable law.
(3) Customers are only granted non-exclusive rights of use. Such rights of use are unlimited in their temporal and geographical scope.
(4) The customer is authorized
1. to install the software on the computer/computers for which it is destined,
2. to load the software into the RAM of the computer, and to display and run it,
3. to create the requisite number of backup copies of the software and to create backups of the data storage medium/media on which the software is installed (image).
It shall be the customer's responsibility to secure the installation files required for new installation and the associated license keys.
(5) A backup copy on a moveable data storage medium must be labelled as such and must bear an appropriate copyright notice.
(6) The customer may only make changes to the software within the meaning of sec. 69c (2) of the German Copyright Act ([German acronym:] UrhG) if this is permitted by law. We would point out that even minor changes may give rise to substantial, unforeseeable disruptions in the running of the software and in other computer programs and may result in incorrect results from data processing. The customer is prohibited from modifying or removing copyright or license notices in the software or on any data storage media which we may provide to the customer. The customer is in no case granted any right of use to process, translate or modify the software going beyond the customer's statutory rights.
(7) The customer is only authorized to decompile the software within the meaning of sec. 69e of the Copyright Act (UrhG) to the extent permitted by law. Prior to any decompilation of the software, the customer must make a written demand with the licensor upon reasonable notice to provide the information and documentation required in order to create interoperability. Only after this period has expired to no avail will the customer be entitled to decompile the software within the statutory limits. Prior to engaging third parties, the customer shall furnish the licensor with written confirmation by the third party in which it obliges to the licensor to comply with the terms and conditions.
(8) The customer shall only be entitled to disseminate (which shall include rental) or to publicly display the software whether on a wired or wireless basis, including providing public access in such manner as makes it accessible to members of the public from any location and at any time they may select, to the extent this has been expressly agreed or is permitted by law.
Sec. 4. License types
(1) The following license types are differentiated:
1. “Commercial Edition” (sec. 5)
2. “Freeware”, “Trial Edition” and “Special Edition” (sec. 6)
(2) Contracts on the basis of which the customer was allowed to use software of another license type in the past shall remain unaffected. The foregoing applies, in particular, to contracts for the "Site License", "Corporate Country License" and “Corporate ‘n’ Core Global License“ license types. To such extent, the Terms of License governing licensing of those license types shall apply. The customer shall receive these Terms from the licensor upon request by email or fax.
Sec. 5. Commercial Edition
(1) Regarding licenses of the "Commercial Edition" license type, a distinction is made between individual Core Server licenses and multiple Core Server licenses ("XL ‚n‘/Unlimited License“).
(2) Individual workstation licenses permit installation only on a single System. For Cluster functionality, sec. 7 (1) shall apply supplementally.
(3) In cases of provision of the software as an " XL ‚n‘/Unlimited License", the licensor will make an agreement with the customer as to how many computers (n) it is allowed to install the software on globally, so that the software may be used by one or more Users at one or more locations. For Cluster functionality, sec. 7 (2) shall apply supplementally.
(4) Remote Probes may be installed on as many computers as the User wishes globally, both in the case of individual Core Server licenses and in the case of multiple Core Server licenses.
(5) Where the customer exceeds the agreed scope of use, it must notify the licensor promptly thereof; any further legal rights are deemed neither to be limited nor precluded thereby.
(6) The customer is only authorized to provide the software to third parties subject to the legal prerequisites. Prior to providing the software to any third party, the customer must notify the licensor of its provision of the software to a third party, and the date and the recipient thereof, and must completely delete the installations in its possession.
Sec. 6. Freeware, Trial Edition & Special Edition
(1) Regarding licenses of the "Freeware", “Trial Edition”, and “Special Edition” license types, the software will always be handed over to the customer by Paessler AG, free of charge and on the basis of the General Terms and Conditions of Paessler AG.
(2) Unless otherwise agreed, the law of gratuitous donation shall apply to any contract for any of the license types referred to in paragraph 1 hereof. Secs. 3 (2), 4, 6 (1), 7, and 11 (1) to (3) of the General Terms and Conditions of Paessler AG shall not apply.
(3) In cases of provision of the software to the customer pursuant to the Freeware license type, the customer's authorization to use the software is limited to use of the software for a maximum of 100 sensors except where the parties have expressly agreed otherwise.
(4) In cases of the provision of software to the customer pursuant to the Trial Edition license type, the authorization to use the software shall be limited to a 30-calendar day period from the date the contract is made, after which period the software may be used on a maximum of 100 sensors, except where the parties have expressly otherwise agreed.
(5) In cases of provision of the software to the customer pursuant to the Special Edition license type, the scope of the authorization to use the software will be specified in each individual case.
(6) In cases of provision of the software to the customer pursuant to one of the license types referred to in paragraph 1 hereof, the following shall apply supplementally:
1. The customer may install and use the software on as many of its computers as desired.
2. The customer may only provide the software to third parties (e.g. including on a website or an FTP server for remote access including downloading)
a) if the customer provides the software without having modified it,
b) if the customer provides the software to the third party in question on a gratuitous basis, and
c) if the customer takes care to ensure that the third party in question obliges to the licensor that it shall comply with the Terms of License.
The customer may only provide the software to third parties in exchange for compensation with the prior express consent of Paessler AG in written form, which is required in order to be deemed effective.
(7) In cases in which the software is provided to the customer pursuant to one of the license types referred to in paragraph 1, Paessler AG shall not offer any contract for maintenance of the software to the customer. If, in individual cases, maintenance services are nevertheless performed, the foregoing is done without any acknowledgment of a legal duty to do so. The customer's statutory claims in the event of defects of the software remain unaffected thereby.
Sec. 7. Cluster functionality
(1) Software of the “Commercial Edition” license type on the basis of an individual Core Server license that has been provided to the customer may be installed by the customer on one further System, in addition to the primary installation, as corresponding Failover Node. In order to install a three-fold or four-fold Cluster, the customer must purchase a further license key, and for installation of a five-fold Cluster, the customer must purchase a third license key. The software may not be deployed beyond a five-fold Cluster.
(2) Software of the "Commercial Edition" license type on the basis of a multiple Core Server license ("XL ‚n‘/Unlimited License") that has been provided to the customer may be installed by the customer both as multiple individual Core Server installations and one or more Cluster installations, pursuant to the contract with the licensor. In addition, the customer may install the software as a "Failover Node" which is linked with one of those ‘n’ installations on not more than one System beyond the contractual scope of the license. The customer must in each case acquire one additional individual Core Server license for each two additional Cluster Nodes outside the contractual scope of the license in question.
Sec. 8. PRTG Cloud
(1) As an additional service for PRTG installations by Paessler AG, the customer can use the “PRTG Cloud” service, for which the following terms and conditions shall apply.
(2) Paessler AG provides the “PRTG Cloud” service on a gratuitous basis.
(3) In the “PRTG Cloud”, hosted services are offered. These services offer notifications (e.g. via push technology) as well as monitoring. As soon as these functions are used either in the app or in the PRTG interface, the PRTG Core Server will connect to the PRTG Cloud without any further query. In the case of the notification service, Paessler AG stores this data and passes it on to other service providers to transmit it to end devices (e.g. to Google, Apple or Microsoft for forwarding of push notifications). In the case of monitoring (e.g. Ping, HTTP), Paessler AG stores the host and internet addresses monitored (URLs).
(4) Upon use of the “PRTG Cloud”, the customer is responsible for concluding a contract with a third-party service provider where necessary in order to be permitted to use its services and to procure the prerequisites to utilization of the “PRTG Cloud” in conformity with data protection law requirements, and for maintaining the same in force until the contract comes to an end.
(5) Upon use of the “PRTG Cloud”, the customer is obliged to comply with Amazon’s Acceptable Use Policy (AUP), which may be viewed at https://aws.amazon.com/aup/. Without limitation in respect of the AUP terms and conditions, the cloud infrastructure may be used, in particular, only for notifications to the customer's own devices and for monitoring the customer's own websites and infrastructure.
(6) In particular, the customer is prohibited from the following
1. use of the cloud infrastructure to send spam,
2. to send notifications to third parties without their prior express consent and
3. to monitor third-party or illegal websites.
(7) Paessler AG is authorized to temporarily or permanently discontinue the “PRTG Cloud” service. Discontinuation will be previously announced, either on the internet website or via dialogs in the software, for example.
(8) The liability of Paessler AG in the provision of the “PRTG Cloud” service shall be limited to intentional acts and gross negligence.
(9) Uninterrupted availability of the “PRTG Cloud” is not guaranteed.
(10) If the customer terminates the contract for licensing the software with Paessler AG as licensor, secs. 4, 6, 7, 9, 11 (1) to (3), and 12 of the General Terms and Conditions of Paessler AG shall not apply to the “PRTG Cloud” service.
Sec. 9. License key; activation of software
(1) Unless otherwise agreed, the use of the software shall require activation of the software by means of a license key.
(2) Where use of the software requires activation thereof by a license key, part of the licensor’s obligation to supply the software is deemed to encompass the provision of a license key and the provision of information to the customer as to how to go about activating it.
(3) Upon activation, an individual ID for the computer on which the software was installed is transmitted to Paessler AG in order to assign the license key to a specific machine.
(4) Use of the software on a new machine shall be subject to the prerequisite that the customer has deleted the software it has installed on the old machine and has re-activated the software after installation on the new machine.
Sec. 10. Automated testing for availability of new program versions
(1) The customer may configure the software such that it carries out an automated check for availability of new program versions at regular intervals.
(2) Such checks for availability of such new program versions shall be done by means of an internet link to the server of Paessler AG. It is the customer's responsibility to ensure, at its own cost and expense, that an internet connection of this kind is present.
(4) No automated installation of the new program version is provided. It is the customer's responsibility to install the new program version.
(5) The Terms of License above do not give rise to any right to the provision of any new program version. The prerequisite to any such claim is the customer's conclusion of a maintenance contract.
SPECIAL TERMS AND CONDITIONS OF PAESSLER AG FOR MAINTENANCE OF STANDARD SOFTWARE
Sec. 1. Scope
(1) The Special Terms and Conditions terms and conditions set forth below (hereinafter referred to as “maintenance conditions”) shall apply to our contracts with customers for maintenance of standard software (hereinafter referred to as “maintenance contract”) whether the customer terminates the contract
1. with a third party authorized by Paessler AG
2. or directly with Paessler AG,
provided that they have been referred to in the respective maintenance contract or their validity has otherwise been agreed upon.
(2) Should the customer terminate the maintenance contract with a third party authorized by Paessler AG, then
1. the provisions in the maintenance contract of the third party authorized by Paessler AG primarily apply and
2. the present maintenance conditions merely supplementally apply,
provided that no other agreement has been made.
(3) If the customer terminates the maintenance contract with Paessler AG, then these maintenance conditions apply to this maintenance contract and, unless otherwise agreed in the maintenance conditions, the General Terms and Conditions of Paessler AG supplementally apply. Paessler AG shall supply these to the customer by email or fax or make the most recent version thereof available for downloading on its website.
Sec. 2. Software to be maintained
(1) The subject matter of this agreement is maintenance of the software of the "Commercial Edition" license type as stated in the agreement on licensing.
(2) If, during the term of our agreement, we modify our software in order to comply with contractual obligations or on the basis of a statutory or contractual authorization (e.g. by providing new versions), then the software shall be replaced and superseded by the modified software. The customer is not entitled to demand provision of a previous software version.
(3) Our maintenance refers in all cases to the total corpus of the licensed software held by the customer, to the extent we offer maintenance services for it. If the customer enters a maintenance contract, then the customer must always keep all of the installations for which we offer maintenance services thoroughly maintained.
Sec. 3. Maintenance services
Throughout the term of this agreement, the customer receives maintenance of the software of the scope agreed pursuant to secs, 4, 5, and 6 of these maintenance conditions.
Sec. 4. Further development of software
(1) The licensed software will be further developed to provide new versions within the standard release stream of Paessler AG.
(2) For purposes of further software development, the software, including the user interface, dialogs, and user documentation, may be modified, supplemented, and further developed, provided that the material scope of functionality required to use the software in line with the parties' agreement is retained and the modification is reasonable to the customer for the contractual use and intended use of the software. The authorization to modify the software also includes the authorization to remove functionalities that are not or that are no longer material to the use of the software in line with the parties' agreement, provided that this is reasonable to the customer.
(3) Maintenance shall in all cases be carried out as a part of the life cycle of the software and pursuant to the release strategy of Paessler AG. Should maintenance of the licensed software be discontinued, the customer shall receive a written notice at least twelve calendar months in advance, indicating the deadline in question; sec. 9 (5) of these maintenance conditions shall apply mutatis mutandis.
Sec. 5. Provision of new versions of the software
(1) Throughout the term of this agreement, as a part of the standard release stream of Paessler AG, the customer shall be supplied with the most recent version of the licensed software for downloading from a website, of which the customer will be informed in advance.
(2) The provisions of new versions of the software and the granting of usage rights thereto, shall be pursuant to the provisions of the Special Terms and Conditions for licensing the software. With respect to the type and scope of the license, in particular with respect to rights of use to new versions of the software, the respective licensing terms shall apply mutatis mutandis, on the basis of which the customer acquired the software.
(3) The customer is authorized to request a new copy of its license key during the term of this agreement.
Sec. 6. Support by Paessler AG (manufacturer)
(1) During the term of our agreement, the customer shall receive support services with respect to technical questions regarding the licensed software (hereinafter: “support”).
(2) The following conditions apply to support
1. when the customer terminates a maintenance contract with a third party that is authorized by Paessler AG and which utilizes Paessler AG as a subcontractor to provide support, so that the customer is entitled to receive support directly from Paessler AG, or
2. if the customer has terminated the maintenance contract directly with Paessler AG, provided that Paessler AG provides support on the basis of service contract law (§§ 611 ff. Of the German Civil Code (BGB)).
(3) For this purpose, Paessler AG shall operate a support ticket system, which is set up to respond to customer queries. Support is provided exclusively via this support ticket system. Customers may open support tickets either by means of the software or on the Paessler AG website.
(4) The support services of Paessler AG are available to customers during operating hours, i.e. on all business days (i.e. calendar days with the exception of Saturdays and Sundays, with the exception of statutory holidays in the German Federal State of Bavaria, and with the exception of December 24th and December 31st of each year), during the period from 9:00 a.m. to 5:00 p.m. (CET/CEST). Paessler AG is authorized to plan and coordinate the activities required to perform support services at its discretion.
(5) The subject matter of support through Paessler AG is exclusively the PRTG installations that follow the setup described on the Paessler AG website at https://www.paessler.com/prtg/requirements.
(6) In connection with the support, the customer is assisted with specific questions regarding functionalities, operating the software, and potential problems with the software (e.g. malfunctions of the software caused by users), where the customer itself is unable to resolve the issue based on the error messages provided by the software or the user documentation or general IT knowledge and skills.
(7) There is no obligation to provide support
a) if the customer does not submit its query by using the means of communication designated by Paessler AG pursuant to paragraph 3, or
b) if the customer does not communicate all of the information Paessler AG requires to process the query in a reasonably processed and documented manner.
(8) The customer's rights and obligations in the case of defects of the software shall remain unaffected by the support. Processing of reports of errors of the software is not the subject matter of the support insofar as it falls within the scope of a warranty obligation.
(9) The provision of extended support services (with availability outside the above-referenced hours) or service levels (e.g. reaction and error elimination times) shall require a separate agreement of the parties.
Sec. 7. Compensation
(1) The customer is obliged to pay the agreed compensation.
(2) Unless otherwise agreed, services are invoiced yearly according to the maintenance contract.
(3) Unless otherwise agreed, compensation shall be due and payable in advance.
(4) Unless otherwise agreed, the license fee for the "Commercial Edition" of the software covers maintenance services for a period of 12 months. At the time of license purchase, customers may also enter a maintenance contract for a period longer than 12 months.
Sec. 8. Commencement and term of agreement
(1) The contract term shall begin on the calendar day on which the customer received the license key for the software and the link to download it ("Download Link").
(2) The agreement has a term of twelve months, unless the parties have otherwise agreed.
(3) The parties may extend the term of their agreement only by mutual agreement.
Sec. 9. Termination of agreement; consequences of termination
(1) This agreement shall end upon the expiration of the agreed contract term.
(2) This agreement may not be terminated by ordinary termination. The parties' statutory rights of termination remain unaffected hereby.
(3) The parties' right to exercise extraordinary termination is neither precluded nor limited by these terms and conditions.
(4) Any notice of termination shall only be valid if given in written form.
(5) To satisfy the written form requirement, an electronic message is also sufficient, which is displayed to the customer in the software and stored so that it can be reproduced in the original form, and is available to the customer during a period which is appropriate for the contract and the termination of the contract. The notice of termination shall be deemed to have been received by a person authorized to accept declarations on behalf of the customer if it is stored in the software in such a manner that it may be displayed to the customer in the software.
(6) Upon expiration of the agreement, the customer shall no longer have any entitlement to software maintenance services.
Sec. 10. Reactivation of maintenance
(1) In the event of termination of the agreement and activation of maintenance by entering a new agreement, the term of which does not immediately follow the term of the old agreement, the customer must retroactively pay the compensation it would have had to pay if it had concluded the new agreement such that its term followed on directly from the term of the old agreement in order to acquire the most current version of the software.
(2) The claim for retroactive payment shall be due and payable at such time as the new agreement is concluded.
SPECIAL TERMS AND CONDITIONS OF PAESSLER AG FOR THE TEMPORARY ONLINE USE OF STANDARD SOFTWARE
Sec. 1. Scope
(1) The Special Terms and Conditions set out below shall apply to the contracts of Paessler AG (hereinafter referred to as “we”) with customers for the temporary use of standard software.
(2) To the extent the Special Terms and Conditions for the temporary use of standard software set forth herein do not otherwise provide, our General Terms and Conditions shall have supplemental application. We shall send these to customers upon request, by email or fax, or shall provide the most recent version to customers for downloading from our website.
(3) Secs. 4, 6, 8 (4) and (6), and 9 to 12 of our General Terms and Conditions shall not apply.
Sec. 2. Our services
(1) Throughout the term of the contract, we shall provide services in connection with our provision of the licensed software for the customer’s use, as well as supplemental services (e.g. provision of remote probes) in line with sec. 3 to sec. 10.
(2) During the trial phase (sec. 17 (2)), our services are provided free of charge; following conversion to “subscription” (sec. 17 (3)), our services are provided for a fee.
Sec. 3. Scope of our services
(1) We have a duty to perform the agreed services. The scope of our services is governed by the description of services in effect as of the date that we forward our offer to the customer (in particular: as stated in the user documentation, https://www.paessler.com/support/manuals).
(2) Where, during the term of our contract, we make modifications to the licensed software and remote probes in order to perform contractual duties or based on a statutory or contract right (e.g. by providing new versions), the modified software shall be deemed to replace the licensed software, and the modified remote probes shall be deemed to replace the remote probes. The customer is not entitled to demand that we provide them with a previous software version.
(3) Our software, i.e. the licensed software and the remote probes (including user documentation) is subject to legal protection, including, in particular, copyright protection.
(4) The customer may only use our software within the scope of what is permitted under the contract and, unless otherwise agreed in the contract, within the scope of what is permitted by law.
Sec. 4. User documentation
The user documentation constitutes part of the licensed software and the remote probes. We provide it to the customer solely in electronic form (in English) and in a format of our choice.
Sec. 5. Provision of use
(1) The customer is authorized to use the licensed software, subject to the agreed availability thereof, on a geographically unlimited basis until this contract ends. On the basis of this contract, the customer is neither granted a copyright nor an exclusive right of use to the licensed software. The customer’s right to use the licensed software is non-transferable and may not be sublicensed. However, the customer is authorized to use the licensed software to perform services for third parties.
(2) We shall provide the licensed software on a server of one of our subcontractors for the customer’s use until this contract comes to an end, subject to the agreed levels of availability. The customer’s right to use the licensed software shall include the right to access the licensed software via a data connection in order to achieve the purpose of the parties’ contract, and to run the software and to operate it in order to enter, process, and extract data in line with this contract, to download the accompanying user documentation from the server for its use in line with these terms and conditions, and to duplicate the same to a reasonable extent (e.g. to print out such user documentation or to store it temporarily or permanently on a data medium, e.g. on the hard drive of the customer’s computer or other end device), where necessary in order to use the licensed software for the purposes envisaged under the contract. The customer is not granted access to the source code of the licensed software. The customer may neither process nor in any other way modify the licensed software. Sec. 5 (2) shall not apply with respect to remote probes.
(3) We shall furnish the customer with “remote probes” for downloading, as additional software products. We grant the customer a non-exclusive right of use to the respective remote probe, which right is unlimited in geographical scope and limited in temporal scope to the term of the contract, as follows
1. to install the remote probes on the computer/computers for which they are destined in line with the intended use thereof,
2. to load the remote probes into the working memory of the computer and to display and launch them,
3. to create backup copies to the necessary extent and to create backups of the respective data media/medium on which the remote probe(s) is (are) installed (image).
Remote probes may be installed on an unlimited number of computers throughout the world.
It is the customer’s responsibility to safeguard/backup the installation files necessary for reinstallation and the corresponding license key.
The customer must label any backup copies on portable data media as such and place an appropriate notice thereon.
The customer may only make changes to the remote probes within the meaning of sec. 69c (2) of the German Copyright Act ([German acronym:] UrhG) to the extent permitted by law. We must point out that even minor alterations may lead to substantial, unforeseeable disruptions in the operation of the software and other computer programs, and may give rise to incorrect output of the data processing. The customer is prohibited from modifying or removing copyright notices on the remote probe or any data media we may provide. Under no circumstances is the customer granted any right of use beyond their statutory rights that would entitle them to edit, translate or modify the remote probes.
The customer is only authorized to decompile the remote probes within the meaning of sec. 69e of the German Copyright Act (UrhG) to the extent permitted by law. Prior to any decompilation, the customer shall request, in writing and setting a reasonable deadline, that we provide such information and documents as are necessary to secure interoperability. The customer shall only be entitled, within the limits of what is provided under sec. 69e UrhG, to proceed to decompile the remote probes where such deadline expires to no avail. Prior to engaging third parties (e.g. in line with sec. 69e (1) (1), sub-sec. (2) (2) UrhG), the customer shall procure for us a written undertaking by the third party in which that third party undertakes to us directly that it shall comply with these terms and conditions.
The customer shall only be entitled to disseminate the remote probes (including by contract-leasing) or to display them publicly (on a wired or wireless basis), including publishing them such that the remote probes are accessible to members of the public at locations and times of their choosing, to the extent expressly agreed with us or permitted by law.
Sec. 6. Availability of licensed software
(1) The servers on which the licensed software is provided for the customer’s use are operated on a 24 hour/day and 7 day/week (24/7) basis.
(2) We have engaged an entity from the Amazon Group of companies as a subcontractor to provide the licensed software for downloading. The minimum availability thereof shall be governed by the “Amazon EC2 Service Level Agreement”, subject to the provisos (i) that Amazon Web Services, Inc. is deemed replaced by ourselves and the user is deemed replaced by the customer, (ii) that any request for credit must be directed to us and not to Amazon Web Services, Inc., and (iii) that in their request, the customer is not required to provide any details regarding the IDs of EC2 instances in question or regarding the IDs of EBS volumes in question and (iv) that the customer is likewise not required to produce any request logs documenting the errors and the outage claimed. The “Amazon EC2 Service Level Agreement” may be downloaded online at https://aws.amazon.com/ec2/sla/. We will also send this document to customers upon request, by email or fax.
(3) We may suspend availability on a temporary basis in order to perform maintenance on the licensed software (e.g. for updates (provision of new program versions)) or restrict availability for such purposes, in each case in line with the provisos set forth below:
1. to the extent that, for technical reasons, we are able to plan maintenance services on a periodically recurring basis or are otherwise able to plan them with respect to preventive maintenance, we shall perform them within a time window which may be adjusted via the licensed software. The customer may select the time window for maintenance by means of the licensed software. The default setting of the time window is such that any such maintenance services will (to the extent possible and reasonable) be performed during periods in which disruptions or restrictions will typically have a lower level (on average) of adverse impacts on the total pool of customers.
2. Where we are unable to plan the maintenance work, we shall also be entitled to perform maintenance work at times other than those specified in sub-para. 1 where necessary in order to maintain the operations of our IT systems or to ensure IT security. We shall endeavor to avoid unplanned maintenance work by undertaking planned maintenance work to a reasonable extent.
3. We shall restore availability within a time that is reasonable with regards to handling the cause of the maintenance.
(4) The provisions set forth in sub-para. 3 shall remain unaffected by the provisions set forth in sub-para. 2.
(5) Where the customer is able to select the time window for maintenance by means of the licensed software, it shall be the responsibility of the customer to facilitate such maintenance work in line with the contract.
(6) It shall be the customer’s responsibility to provide us with timely notice of any action planned by the customer or with their knowledge which may have impacts on the quality of the services we furnish, and in particular where such action may give rise to any system usage peaks.
Sec. 7. Access to administrator’s module and PRTG installation
(1) The licensed software is administered by means of an administrator module and the PRTG user interface. Access to these is provided by means of a web portal. Access via the web portal requires the inputting of credentials.
(2) The customer is responsible for ensuring (by undertaking appropriate technical and organizational measures within their scope of responsibility) that only authorized persons are given access to the credentials and for specifying the authorizations for further users. The customer shall ensure that credentials provided are not disclosed to unauthorized third parties or any improper use is made of them.
Sec. 8. Provision of new versions
During the term of the contract, as a part of our standard release stream, we shall provide the customer with the most recent version of the licensed software and remote probes in each case for their use. The customer is responsible for enabling us to install new program versions of the remote probes.
Sec. 9. Ongoing development
(1) We have an obligation to perform further development of the respective software (of the licensed software and the remote probes) to a reasonable extent and to provide new versions as part of our standard release stream.
(2) For purposes of our performance of further development work, we are authorized to modify, supplement and develop the licensed software and remote probes (including user interfaces and dialog screens, and user documentation) in our free discretion throughout the term of the contract, provided that the essential functional scope for the contractual use of the software in question remains substantially unaffected and the modifications are reasonable for the customer for a contractual and typical use of the software. This authorization to modify the software shall also include the authority to remove functionalities that are not important or are no longer important in connection with the customer’s contractually compliant use of the software, to the extent reasonable to the customer. Following any notification of changes to the respective software, the customer is responsible for verifying that the changes are reasonable for the customer for a contractual and typical use of the software. If this should not be the case, the customer must promptly inform us of this.
(3) Maintenance is at all times undertaken within our software’s lifecycle and in line with our release strategy. If we plan to discontinue maintenance for our software, we will provide at least 12 calendar months’ advance notice of the discontinuation date.
Sec. 10. Support
(1) Throughout the term of our contract, we shall provide the customer with support services in response to technical inquiries regarding the respective software, i.e. regarding the current program version of the licensed software and the remote probes, on the basis of the law governing contracts for works and services (secs. 611 ff. of the German Civil Code ([German acronym:] BGB), to the extent agreed herein (hereinafter “Support”).
(2) For this purpose, we operate a Support ticket system which is set up to respond to customer inquiries. Support is provided solely via that Support ticket system. The customer may open Support tickets either via the licensed software or on our website.
(3) Our Support services are available during our normal business hours, i.e. on all weekdays (e.g. calendar days with the exception of Saturdays and Sundays and with the exception of statutory public holidays in the German Federal State of Bavaria and with the exception of December 24th and December 31st of any year) from 9:00 a.m. to 5:00 p.m. (CET or CEST). We are authorized to freely plan and coordinate the activities required to enable us to perform our Support services. Sec. 6 (3) shall apply mutatis mutandis to the availability of our Support ticket system.
(4) Our Support includes providing Support to customers on specific questions regarding functionalities, operation, and potential problems with the licensed software and remote probes (e.g. malfunctions of the software which may be caused by users) where the customer is not able to solve the issue by using the information in the error message, the user documentation or general IT knowledge.
(5) We do not have a duty to provide Support
a) if the customer does not use the means of communication specified by us in sub-para. 2 for communicating their inquiry or
b) if the customer does not furnish us with all information in a reasonably succinct and documented fashion and in the form we require in order to process the inquiry.
(6) The customer’s rights and duties with respect to defects of the respective software shall remain unaffected by our Support. Processing of reports of errors of the respective software is not the subject matter of our Support where such work is covered by one of our warranty obligations.
(7) Provision of extended Support services (with availability outside the hours referred to above) or service levels (e.g. reaction and error elimination times) shall require a separate agreement of the parties.
Sec. 11. Compensation
(1) During the trial phase (sec. 17 (2)), our services are performed free of charge. Following conversion to “subscription” (sec. 17 (3)), the customer shall be required to pay the agreed compensation.
(2) We shall invoice customers for our services for the respective contract period except where we have otherwise agreed. The compensation is payable in advance, except where we have otherwise agreed.
(3) The provisions in sec. 7 of our General Terms and Conditions shall apply in supplementation thereof.
Sec. 12. Customer’s duties of cooperation
(1) The customer shall maintain IT infrastructure (hardware and software) in place that is appropriate for the use of the software agreed under the contract, and shall ensure that there is a suitable data connection to the server on which we provide the software for the customer’s use. This constitutes a necessary prerequisite to the customer’s contractual use of the software, including the remote probes.
(2) We provide the information on the technical minimum requirements online for downloading, and will also provide them in another form upon request. We may modify the technical minimum requirements in our reasonable discretion and following timely prior notice on our website. The customer is responsible for informing themself regarding the respective technical minimum requirements. The customer shall bear the costs necessary for procuring and maintaining the IT infrastructure needed to use the services or to avail themself of telecommunication services or other service providers other than us. We are not responsible either for establishing or for maintaining data connections at any point beyond the delivery point of the server operated by a service provider under contract with us to the customer’s data connection.
Sec. 13. Customer’s rights with respect to software defects
(1) The customer is entitled to assert rights for a defect of the respective software (i.e. the licensed software or the remote probes) in line with the provisions of applicable law, except where the parties have otherwise agreed.
(2) In the event of any substantive defect of the respective software, we shall be obliged and entitled, at our election, which we shall make within a reasonable time, initially to remediate (e.g. eliminate the defect) or to supply a replacement (i.e. provide a new version of the program which is free of defects). Elimination of defects may also consist of indicating to the customer contractual and reasonable options for avoiding the impacts of the defect.
(3) In the event of any legal defect with respect to the software, we shall be entitled and obliged, at our option, which we shall make within a reasonable time, initially to undertake supplemental performance by procuring a legally sound means of using the respective software or by providing replacement software or modified software of equivalent value.
(4) Our liability for damages and our liability to pay compensation for unavailing expenditures is limited under sec. 15 and sec. 16 hereof.
(5) Where we perform services involving identifying or eliminating defects following the report of a substantive defect by the customer without being obliged to do so, the customer shall have a duty to compensate us for the losses or expenditures we incur as a result of our services in identifying or eliminating the defect, except where the obligor has not breached any of its obligations in reporting the defect or is not responsible for the breach of duty.
Sec. 14. Intellectual Property rights of third-parties
The customer shall notify us promptly in writing wherever third parties assert IP rights (e.g. copyright or patent rights) to the respective software. The customer shall support us to a reasonable extent in defending against such claims.
Sec. 15. Our liability during the trial phase
During the trial phase (sec. 17 (2)), we shall only be liable in cases of intentional acts and gross negligence.
Sec. 16. Our liability following conversion to “subscription”
Following conversion to “subscription” (sec. 17 (3)), § 16 of our General Terms and Conditions shall apply, with the proviso that additionally a liability independent of fault according to § 536a para. 1 Var. (1) of the German Civil Code (BGB) is excluded because of defects already existing at the time of conclusion of the contract.
Sec. 17. Commencement and termination of contract
(1) This contract shall enter into force at such time as it is concluded.
(2) The customer may test the software and remote probes free of charge during the trial phase. The contract shall end at such time as the customer switches to “subscription” in line with sub-para. 3 or upon expiration of the trial phase, without the need for any declaration by either party.
(3) During the trial phase, we are deemed to irrevocably offer to the customer that, by making a declaration to us, which the customer must provide via our administration module (e.g. “subscribe now”), the customer may switch the contract to a paid subscription contract (switch to “subscription”).
(4) The rental contract shall begin to run on the calendar date on which the customer provides their declaration (“subscribe now”). When providing such declaration, the customer may select a contract term (e.g. one month or twelve months).
(5) Upon expiration of the agreed contract term, the subscription contract shall be automatically extended, without the need for any declaration by either of the parties, for a contract term equal to the previous contract term in each case except where one of the parties gives timely and formally proper notice of termination to the other party.
(6) The notice period for termination is one calendar day to the end of the respective contract term. To be valid, notice of termination must be given in writing. Compliance with the written form requirement by the customer is satisfied where the customer clicks on “cancel subscription” in the administration module.
(7) For purposes of our compliance with the written form requirement, an electronic message which we display to the customer via the licensed software and which comports with the text form requirement shall be deemed sufficient. Our notice shall be deemed to have been received by a person authorized to receive it on behalf of the customer if it is stored within the software in such a way that it may be displayed to the customer within the licensed software.
(8) The parties’ right of extraordinary termination shall remain unaffected hereby. A declaration of extraordinary termination may only be validly given in written form. Sub-para. 7 shall apply mutatis mutandis.
(9) Upon expiration of the contract, the customer is no longer entitled to use the licensed software or the remote probes. Following termination, we are not obliged to store the customer’s configuration files.
Data Protection Agreement PRTG hosted by Paessler
DATA PROTECTION AGREEMENT (JOB PROCESSING) PRTG hosted by Paessler
between the Contracting Authority (Client)
and Paessler AG, Thurn-und-Taxis-Straße 14, 90411 Nuremberg/Germany (Paessler)
1. Object and Duration of Contract, Legal Framework
The Client instructs Paessler with processing individual-related data for delivery of PRTG network monitoring services. The duration of this agreement corresponds to the PRTG operation life. This data protection agreement shall be part of the contractual regimes of PRTG hosted by Paessler.
2. Nature of Data, Parties Concerned
Paessler processes monitoring data of the Client. Such are PRTG-created data of the Client’s applied devices and sensors including data of scope, duration and time of network traffic, data of device identification including IP address and device ID, data of Client accounts using the network as well as data of utilisation of the PRTG account. The Client determines to what extend such monitoring data shall be personalised by selection of applied devices and sensors.
The processing of monitoring data affects users of the devices and network components applied and created by the Client.
3. Rights and Responsibilities of Client
Assessing the legitimacy of data processing in accordance with article 6 section 1 of GDPR (General Data Protection Regulation) as well as safeguarding the rights of any party concerned in accordance with article 12 to 22 of GDPR shall be the responsibility of the Client.
4. Scope, Type, Purpose of Data Processing and Directives
- The following provisions are final directives regarding the monitoring transferred.
- The data shall be processed by Paessler merely for carrying out, executing and supporting PRTG services. This includes technical provision of PRTG components, guarantee of a flawless operation and monitoring of risks by Paessler.
- Paessler is allowed to use personal data in order to detect potential problems within the Client’s network entity and take defensive measures in consequence.
- In pursuance of the purpose, Paessler is authorised to read and evaluate the data. Paessler is allowed to log into running PRTG entities in order to analyse existing problems. A user-referred evaluation shall take place if certain user behaviour has been acknowledged as cause for malfunction. Paessler shall inform merely the Client if a certain user or user behaviour has been detected as cause for any problems.
- Processing of personal data for other purposes, especially the transfer to third parties for other purposes than the agreed purpose, is not allowed. Furthermore, processing shall not include any provision of information to third parties or users of devices and network components applied by the Client. In particular cases, this shall require separate commission.
- Copies or duplicates of data shall not be created without prior knowledge of the Client. This does not include backup copies that are required for ensuring smoothly running operation (backup mechanisms and restoring mechanisms) or guaranteeing proper data processing or compliance with any legal archiving duties.
- Under normal circumstances, the server shall be operated in an EU member state. Should there exist several location options, the Client shall determine the server location’s region upon commission.
5. Technical and Organisational Protective Measures
- Paessler shall guarantee a protection level for the parties concerned by data processing appropriate to the nature and extent of the risk for rights and liberties. This shall include the protective aims of article 32 section 1 of GDPR, such as confidentiality, integrity and availability of systems and services as well as their resilience regarding type, scope, circumstances and purpose of processing, in a way that appropriate technical and organisational corrective measures will reduce the risk in perpetuity.
- This shall include taking technical and organisational measures in accordance with article 32 GDPR in order to guarantee confidentiality, integrity, availability and resilience of systems and services as well as prevention of abusive use and disclosure of data. Such measures must be appropriate and proportionate and also conform to up-to-date technology. The measures to be taken have been described and documented.
- The measures are subject to technical progress and developments. Alternative measures may be implemented if the protective level of the measures defined is not being undercut.
6. Specific Responsibilities of Paessler
- Paessler shall process data in conformance with the Client’s instructions unless Paessler is bound by EU law or law of a member state to process data otherwise (for instance due to investigations by prosecution offices or state security); should this occasion arise, Paessler shall inform the Client of these legal requirements before data procession unless the law in question prohibits such notification for important public reasons (article 28 section 3 sentence 2 letter a of GDPR).
- All Paessler employees responsible for order completion are subject to an obligation of confidentiality or obligation of silence. They were made familiar with the relevant rules concerning confidentiality, especially given the subject matter of this agreement.
- Paessler shall regularly check the rules laid down in this agreement, especially regarding implementation and – if necessary – amendment of protective measures in order to guarantee that data procession within their area of responsibility follows the requirements of the valid data protection legislation and assure protection of the entities concerned. Paessler may prove adoption of sufficient protective measures by presenting certificates.
7. Subcontractual Relations
- The Client shall agree to involvement of subcontractors for processing of data on condition that these subcontractors are bound by this agreement and capable of meeting the agreed requirements to the processing of data. The subcontractors involved are listed in annex 1.
- Paessler shall inform the Client of all changes regarding involved subcontractors. Should the Client not consent to a subcontractor, they may cancel the PRTG service by exceptional right of termination and end any processing of data.
8. Protection Violations and Reporting Duties
- Paessler is obliged to notify security breaches in their range of control and organisation affecting personal data provided by the Client promptly to the Client (article 4 point 12 GDPR). For this purpose, Paessler shall notify the Client immediately of the respective event through the e-mail address listed and stored in the contact data.
- Paessler – in consultation with the Client – shall take appropriate measures to safeguard data and also take provisional measures to mitigate possible negative effects.
- The Client is responsible for reporting that is possibly resulting from article 33 section 1 and article 34 GDPR.
9. Deletion of Data
- The monitoring data shall be stored for 12 months and overwritten afterwards.
- After determination of PRTG services, monitoring data shall be deleted six months after the contractual end at the latest. A dispute between the parties regarding contractual services or unresolved claims may result in data being withhold for evidentiary purposes.
10. Rights of Parties Concerned
- In so far as their means allow, Paessler shall support the Client with their obligations to implement the rights of data subjects.
- At the request of the Client, Paessler shall delete personal data involved in data processing. Furthermore, Paessler may correct or delete data or restrict data processing (block) merely upon documented instruction by the Client.
- If a data subject contacts Paessler directly regarding their rights (for instance information, correction or deletion of their data), Paessler shall transmit this request to the Client without delay.
11. Obligation to Secrecy
The parties commit to treating all information regarding protective measures of the other party and received within the contractual relationship confidentially as trade and business secrets. This obligation to secrecy shall continue even after the end of the contractual relationship.
12. Formal Requirements, Severability Clause
(1) Amendments or supplements to this agreement shall be binding only if made in writing.
(2) If a determination of this agreement should be ineffective or become ineffective, this shall not affect the overall effectiveness of this agreement.
The contractual parties shall endeavour to replace the invalid or unenforceable provision by a valid and enforceable provision.
Annex 1: Subcontractors
Status as of 6 February 2018.
Paessler shall integrate the following subcontractors into the processing of data:
Amazon Web Services Inc.
410 Terry Avenue North
Seattle WA 98109, USA
Hosting of Client entities as well as the Client portal my-prtg.com
132 Hawthorne St
San Francisco, CA 94107, USA
Managing error messages
1801 California Street, Suite 500
Denver, Colorado 80202, USA
E-mail transmission for operating my-prtg.com