1. The terms of these licensing conditions apply to our ICR / OCR software for digital interpretation of handwritten or typed characters (hereinafter "KADMOS") in all its versions in accordance with the currently valid version of our handbook, which is available on our website. The provisions of this licensing conditions apply accordingly to any subsequent updates of KADMOS as well as to any additional modules or functions. The same applies to additional information, documentations, software components, and software codes which are provided or made accessible by us within the scope of support.
2. KADMOS can be downloaded from the server. By downloading KADMOS, these licensing conditions become binding. Any provisions deriving from these licensing conditions must be in writing in order to be effective. Any deviating terms and conditions proposed by you shall be regarded as refused unless we have expressly consent to them in written. Provisions of a separately concluded license agreement take precedence over the provisions of these licensing conditions.
3. The terms "us" and "we" in the provisions of these license conditions represent re Recognition GmbH and its legal successors, its affiliated companies and subsidiaries. The term "you" stands for both the company concerned, as well as its legal successors, affiliated companies, and subsidiaries. You are obliged to ensure that your employees, agents, and other parties involved who will use KADMOS are aware of the provisions of these licensing conditions.
4. No provision of these licensing conditions intends to establish an employment, agency, or joint venture relationship, or a company law or fiduciary association. Neither you nor the members of the governing bodies, employees, and agents have the right to act on our behalf or for our account. In particular, the provisions of these licensing condition do not establish the right to enter into commitments at the expense of us or to make promises, guarantees and other declarations on our behalf.
5. By downloading KADMOS, we grant you a non-exclusive license to use KADMOS for the duration laid out in section 13
6. "Use" refers to copying, transferring, or loading the content of the software for the purpose of permanent storage, e.g. on hard disk, CD-ROM, or other storage devices, with which the process and status information is to be implemented on your computer system. Further, copying KADMOS in machine-readable form with intent to understand the machine-readable content as well as the use for the purposes explained in the following sections, too, fall within the concept of the term "use".
7. Integrating KADMOS into your own software application as well as reproducing and distributing this software application to customers is permitted. The term "distribution" refers to sale, renting, leasing, and lending of KADMOS. The term "customer" describes any holder or purchaser of your software application, regardless of the scope or form in which they purchase it. KADMOS may only be distributed by you if you have integrated KADMOS into your software application. For each copy of KADMOS distributed by you with your software application, a license fee must be paid. The number of license fees is determined by the number of workstations or processors on which the software application is used. If, for instance, a copy of your software application is used on 10 (ten) workstations, 10 (ten) license fees are thus to be paid.
8. The right to reproduce KADMOS is limited to the number required for the distribution of the software applications. Furthermore, permanent or temporary reproductions or copies of KADMOS, in whole or in part, by any means and in any form, in particular (but not limited to) loading, displaying, running, putting into operation, transferring or storing KADMOS, are only permitted within the scope of the use required for implementing KADMOS in the software application. This also includes the exchange for the purpose of service. You are entitled to take appropriate measures for fixing bugs and to make a copy of KADMOS for this purpose. Furthermore, a backup copy may be created.
9. You are also not entitled to copy, modify, reverse engineer, disassemble (decompose), decompile or alter the software in any way, unless this is indispensable for achieving interoperability of KADMOS with your programs.
10. We provide KADMOS as a developer kit. The developer kit as well as all updates for KADMOS can be found online. Runtime licenses are also provided per software tool.
11. KADMOS can be delivered as LIBRARY version or as DYNAMIC LINK LIBRARY version (DLL). If you want to switch from the LIBRARY to the DLL version at a later time, you must ensure that the DLL interface clearly differs from the interface required by the original KADMOS DLL file. Moreover, you must keep your own DLL interface confidential.
12. One-off charges for the use of KADMOS are based on our current price list. Charges are payable within 30 (thirty) days after invoicing.
13. You are liable to pay us a license fee for each copy or license sold to a customer, whereby the provisions in section 7 regarding the number of license fees must also be considered. License fees are based on our current price list. Charges, too, are payable within 30 (thirty) days after invoicing. If trial versions and copies of KADMOS are made available to interested customers, the press, or other media by you for marketing and documentation purposes, no fee is to be paid provided they are issued by you free of charge and the functionality of KADMOS is limited to a maximum of 3 (three) months.
14. Charges also arise for the maintenance of KADMOS, and the maintenance of sold copies or licences of KADMOS. Maintenance comprises the respective updates available for KADMOS. Maintenance charges are 18% of the charges according to section 12 and the license fees pursuant to section 13 above. The corresponding maintenance contract can be terminated at the end of a year with 3 (three) months' notice.
15. You are entitled to grant a sublicense for the use of KADMOS to those customers using your software application. This right includes bug fixes and the generation of a backup copy. Furthermore, it is prohibited to copy, distribute, manipulate, modify, customize, or make KADMOS available in any other, not intended way, or to grant sublicenses to third parties in this regard.
16. You agree to assure that no unauthorized reproduction, distribution, adaptation, modification or other unauthorized use of KADMOS by third parties will take place. In this context, you are particularly obliged to equip your software application with an effective copy protection. If this is not possible for technical reasons, you are obliged to conclude a sublicense agreement with your customers containing the same provisions as laid out in these license conditions.
17. You are acting on the market in your own name and for your own account and are not entitled to represent us vis-à-vis third parties.
18. News on updates and new developments and versions are published on our website. We are entitled to migrate KADMOS to a new compiler version at our own discretion and after a certain period of time.
19. We will provide you with all information essential for the use of KADMOS immediately and inform you of new findings which could have adverse consequences for the use of KADMOS immediately.
20. We offer free support solution for the latest version of KADMOS via the internet. Product support is limited to program improvements and bug fixes and is provided through regular updates. Support for parameter settings to troubleshoot problem images is provided free of charge. Any further support is only provided against payment. The price is based on time and material required.
21.We assume no liability for the legal validity of intellectual property rights, in particular the possible forfeiture of intellectual property rights due to non-use, and we are not aware of any older rights of third parties that could oppose the use of KADMOS. However, a guarantee for the non-existence of such rights is expressly excluded. Yet, we assure you that we will maintain the intellectual property rights at our won expense for the time of validity of these licensing conditions and that we will pay any fees for this purpose.
22. We confirm that we are not aware of any defects in KADMOS. We therefore guarantee you that KADMOS fulfills the essential functions as stipulated in the latest version of our handbook. A function is essential, if its faulty operation leads to a not inconsiderable impairment of use of the software as laid out in the provisions of this licensing conditions. However, by downloading KADMOS, you accept that character recognition is based on statistical data and that it, therefore, cannot be assumed that KADMOS will operate faultlessly, i.e. deliver the correct result, bar none. You hence agree that, according to the state of the art, it is not possible to create a computer software in such a way that it will always work absolutely faultlessly in all conceivable combinations and applications.
23. Subject to warranty is the latest version of KADMOS which was provided by us. Technical data, specifications, and performance descriptions in the documentation do not constitute any warranty. If you make any changes to KADMOS or if KADMOS is used contrary to the instructions or the specifications in our operating and maintenance manuals, any warranty is void. Likewise, a guarantee is expressly excluded if KADMOS does not meet your special requirements, which have not been specified in writing beforehand or if the success intended by you is not achieved. The same applies if you do not make updates for the purpose of preventing or fixing bugs.
24. Insofar a warranty obligation exists, it is granted for a period of 2 (two) years after downloading KADMOS. You are obliged to test KADMOS immediately after downloading. Obvious defects must be reported in writing within 5 (five) working days of discovery of the defect, otherwise the defect in question shall be deemed accepted. The warranty right is initially limited to rectification of defects or replacement delivery, a withdrawal is excluded. Prerequisite for claims to remedy of defects is the reproducibility or detectability of the defects. If an investigation in connection with the claims for defects asserted by you reveals that there is no defect, we shall be entitled to invoice the costs of the investigation on the basis of the time and materials used in an appropriate, at least cost-covering amount.
25. Liability for further violations of duty as well as direct and indirect damages, including, but not limited to, damages caused by defects and consequential harms shall be excluded to the extent permitted by law. In particular, the liability for damages caused to the customer by the use of KADMOS in combination with your software application is completely excluded. In this relation, you shall keep us indemnified against claims and lawsuits by your customers.
26. You expressly acknowledge that KADMOS is our property and protect the copyright as well as that we are proprietor of rights to KADMOS. You agree to use KADMOS only as laid out in this licensing conditions and to not infringe on the licensing conditions in any way. No intellectual property rights are acquired by you. KADMOS remains our property and we stay the sole holder of all rights to KADMOS. We therefore retain all intellectual property rights to which we are entitled in full, especially all patents, design, copyright, name, and company rights, as well as all rights to our know-how.
27. Furthermore, you undertake to not derive any rights against us from the use of the intellectual property rights, neither to attack the intellectual property rights yourself nor to initiate or support attacks by third parties. In addition, you undertake to tolerate re-registering of the intellectual property rights by us or modifications thereof.
28. You further agree not to register or use any new intellectual property rights identical or similar to our intellectual property rights for identical or similar products.
29. Any use of the intellectual property rights by you shall be deemed to be our use. You therefore transfer to us in advance and free of charge any intellectual property rights that may arise as a result of the use of the intellectual property rights.
30. We grant you the non-exclusive right to use our software's trademark as well as other symbols and product designations (hereinafter "contractual designations") which is limited to the duration of the use of KADMOS. This right is to be exercised by you only within the scope of use in accordance with the provisions of these licensing conditions. You undertake to design your sales efforts in such a way that the reputation of our trademarks covered by the contract is not impaired.
31. Without our prior written consent, you are prohibited from (i) imitating, altering, or in any other way modifying the trademarks covered by the contract, as well as from (ii) removing, altering, or in any other way modifying the trademarks covered by the contract, numbers, or other identification marks attached to KADMOS.
32. You are obliged to inform us immediately and comprehensively about any claims of third parties or of authorities, as far as these are in connection with KADMOS. You are prohibited from acknowledging any claims asserted by third parties in connection with KADMOS without our prior written consent.
33. You also undertake to inform us about any (possible) infringements of the intellectual property rights with undue delay and to assist us in defending such rights. We reserve the right to take legal or extrajudicial action against third parties in connection with the infringement of intellectual property rights. If we are not prepared or interested to take action against this third party, you are entitled, but not obliged, to assert the infringement in your own name subject to our consent. We reserve the exclusive right to defend against attacks by third parties on the legal validity of intellectual property rights, e.g. actions for cancellation.
34. KADMOS contains business secrets from us, particularly in the form of information, ideas, concepts, and know-how. You agree to keep confidential all such information, documents, and know-how made available by us in connection with the use of KADMOS. You must oblige your corporate bodies, employees, agents, representatives, and the like to keep our business secrets confidential. Any disclosure of secrets about KADMOS or of our know-how to third parties, in particular (but not exclusively) through the provision of program copies or reproduction in the software documentation, is strictly prohibited.
35. Any information on KADMOS made available to you, your corporate bodies, employees, agents, representatives, and the likes for the purpose of the use of KADMOS is subject to this confidentiality clause, regardless of the form. This includes in particular (but not conclusively) oral communication as well as information on sales volumes.
36. Excluded from the obligation to confidentiality are publicly available information, know-how about KADMOS or information that you can prove was already known before the provisions of these licensing conditions came into effect or that is generally known without any action, omission or responsibility on your part.
37. If a provision of the licensing conditions is violated, a contractual penalty amounting to EUR 20,000.00 must be paid for each violation. Payment of the contractual penalty does not discharge you from compliance with the provisions of these licensing conditions. We reserve the right to assert the actual damage, however, the contractual penalty shall be set off against the actual damage.
38. We are entitled to have compliance with the provisions of these licensing conditions and in particular the correct use of KADMOS checked within the scope of an audit. The commissioned expert auditor sworn to secrecy may bring in third parties if necessary. The auditor's decision and audit report are final and binding for both parties. If a violation of these licensing conditions is determined, you must also reimburse us for all expenses incurred in the review.
39. The provisions of these licensing conditions are in effect from the time of downloading KADMOS and continue to be in effect as long as KADMOS is used in accordance with the terms laid out in section 2.
40. The provisions of these licensing conditions must be interpreted in such a way that they are legally effective and binding. If any provision is invalid or otherwise unenforceable, the remaining provisions of the license conditions shall remain in effect. The invalid provision shall be replaced by a valid and enforceable provision that most closely approximates the economic intent and purpose of the replaced provision.
41. A waiver by either party of any right under the terms of these license agreements in any individual case shall not be deemed a general waiver of any other such right.
42. Rights and obligations arising from the provisions of these license conditions may only be transferred or assigned to third parties with our written consent. The assignment of monetary claims remains reserved.
43. The provisions of these licensing conditions are subject to substantive Swiss law. The United Nations Convention on Contracts for the International Sale of Goods (CISG/UN Sales Law/Vienna Sales Law) shall not apply.
44. Any disputes arising out of or in connection with the provisions of these licensing conditions, including disputes regarding the effective conclusion of the agreement, their legal validity, modification or dissolution, shall be subject to the exclusive jurisdiction of the courts at our registered office.