1.1 UPPERCUT visual technology Uvt GmbH, FN 312392a, Lakeside B06, 9020 Klagenfurt am Wörthersee, Austria (hereinafter referred to as “Licensor”), is the owner of and holds all rights to certain proprietary software including any accompanying media as well as any related documentation and instructions made available by the Licensor (hereinafter collectively referred to as “Software”).
1.2 Any use of the Software is governed by this License Agreement (hereinafter referred to as „Agreement“) and acceptance of this Agreement is a precondition in order to obtain any right to use the Software. By accepting this Agreement you (hereinafter referred to as “you” or “Licensee”) obtain a limited right to use the Software, subject to the provisions of this Agreement.
1.3 If you do not accept this Agreement without any modifications, you are not allowed to download, copy, install or otherwise use the Software, whether as a whole or parts thereof.
1.4 Unless expressly stated otherwise in this Agreement, this Agreement represents the entire agreement between you and the Licensor.
|Term||Definition / Definition in|
|Computer||Means a personal computer/workstation and does not include servers or multiple virtualized client instances.|
|Concurrent Multi User License||See 3.6.1|
|Licensee / you||See 1.2|
|Multi User License||See 3.5.1|
|Network||A collection of connected Computers controlled by the Licensee.|
|Render Farm||A computer cluster, built to render computer-generated imagery.|
|Single User License||See 3.4.1|
|Update||Minor changes to the Software, mainly in the form of bug fixes and usually provided in order to remedy problems affecting a particular release version.|
|Update Period||See 4.2.3|
|Upgrade||New release of the Software with new functionality and specifications.|
|Use / use||To download or otherwise procure the Software, to install the Software, to run/execute and load it into RAM or derive a benefit in any other way from the Software.|
3.1 The Software is licensed, not sold.
3.2 Subject to your acceptance of and strict compliance with this entire Agreement, the Licensor herewith grants to the Licensee the non-exclusive, non-transferrable, not sub-licensable right (“einfache Werknutzungsbewilligung”, hereinafter referred to as “License”) to use the Software for an indefinite period of time for the purpose outlined within and in accordance with the specification, documentation and instructions. The right to use the Software is restricted to a number of computers and/or users as per the subsequent sections of this Agreement. Any other or further use shall not be permitted.
3.3 The Licensor may distribute demo or trial licenses, which may have limited functionality and shall only be used for a limited amount of time specified when made available for the purpose of evaluating the functionality of the Software. Unless a different evaluation period is communicated, demo or trial licenses shall be valid for 30 (thirty) days only. Demo or trial licenses shall not be used for professional purposes.
3.4 The right to use the Software shall only be vested in professional users. By this Agreement consumers shall not be granted any rights.
3.5 Single User License
3.5.1. If you have purchased a Single User License or a license without any reference as to how many computers or users are licensed, you are entitled to install the Software on up to 2 (two) computers owned, controlled and used by you, however, the Software may only be used on 1 (one) Computer at any given time. Concurrent use on more than 1 (one) computer is prohibited.
3.5.2. In order to install and use the Software on more than 1 computer you need to purchase the corresponding number of Single User Licenses or an adequate multi user license.
3.6 Multi User License
3.6.1. A Multi User License gives you the right to install and use the Software on the number of Computers stated on your License document.
3.7 Concurrent Multi User License
3.7.1. A Concurrent Multi User License gives you the right to install the Software on any number of Computers within a Network while the number of users stated on your License document may use the Software concurrently.
3.7.2. The use of Concurrent Multi User Licenses requires the deployment of a specific licensing server within the Licensee’s network.
3.8 Render Farms
3.8.1. Use of the Software in Render Farms is prohibited. Licenses for use of the Software in Render Farms are available upon request.
3.9 Any and all rights not explicitly granted to the Licensee in this Agreement are retained by the Licensor. The Software is the intellectual property of the Licensor and is protected under national copyright laws and international copyright treaties, as well as other intellectual property laws and other laws and treaties. This Agreement does not grant any rights with regard to trademarks or any other identifiers being used by the Licensor.
3.10 The Software contains technical functions for digital rights management in order to protect the Licensor against unauthorized use. The Licensor monitors the use of license keys provided to Licensees in order to ensure compliance with this Agreement.
3.11 Particularly, the Licensee shall refrain from
3.11.1. removing or otherwise impairing the functionality of any technical measures for digital rights management;
3.11.2. handing over, or otherwise making the Software accessible, to a third party without prior written permission from Licensor; provided that it is expressly forbidden to rent or lease the Software;
3.11.3. any processing, in particular any translating or modifying, of the Software or creating any derivative products;
3.11.4. decompiling or disassembling the Software without prior written permission from Licensor;
3.11.5. duplicating the Software;
3.11.6. transferring the License to a third party or granting a sublicense, and/or
3.11.7. use the Software for any purpose that is unlawful or prohibited
unless and insofar mandatory provisions of the applicable law provide otherwise.
3.12 The Software contains so-called open source software, for which the conditions of use of such open source shall apply. Such open source software and the pertaining conditions of use are set out in Appendix A (“Open Source Software (components, notices and licenses)”) below. The Licensee shall refrain from removing an existing copyright notice or license information. The Licensee shall indemnify and hold Licensor harmless from and against any claims, cost, expenses which Licensor might incur arising from Licensee’s use of the open source software.
4 Support and Maintenance
4.1.1. The Licensor will provide limited support on a best efforts basis through an online support forum accessible via the Licensor’s website.
4.1.2. Additional and/or individual support is available upon request and subject to a separate support agreement.
4.2.1. Licensor, at its sole discretion, shall be entitled, but not obliged, to create Updates for the Software and to make them available to the Licensee.
4.2.2. The Licensee may only receive Updates for the Software if he holds a valid License for the release version the Update applies to.
4.2.3. Unless stipulated otherwise in the individual purchase agreement, Licensee shall be entitled to receive Updates free of charge that are made available by Licensor within the timeframe between the initial purchase and the end of the same month one (1) calendar year after the initial purchase (“hereinafter referred to as “Update Period”) (e.g. initial purchase: 15.07.2018 – end of free update period: 31.07.2019).
4.2.4. The terms and conditions contained in this Agreement shall also apply automatically to any Updates provided by the Licensor, which shall form part of the Software subject to the License, unless the Licensor provides, and/or requests acceptance of, different or additional terms (e.g. by display thereof after download of the update) in which case the different / additional terms shall also apply to the original version (unless otherwise stated in the terms for the Update).
4.3 Unless the Licensee has purchased additional software maintenance, the Licensee shall not be entitled to receive Upgrades free of charge.
5.1 The Agreement shall at the latest come into force upon the first Use of the Software and shall be valid for an indefinite term.
5.2 The right of the Licensee to use the Software shall expire automatically without notice if he violates any terms of this Agreement. If there is an insignificant breach of duty, automatic expiry shall only apply upon (i) repeated violations of the same or a comparable duty (i.e. at least twice) or (ii) the Licensee being unsuccessfully requested by Licensor to rectify the situation caused by the breach of duty within 3 weeks upon request (unless another period is set in the request).
5.3 When the right of use is terminated, the Licensee is obliged to return all the copies of the Software, including any modified copies to Licensor or to erase any copies of the Software. On Licensor’s request, Licensee shall confirm in writing the performance and fulfilment of the obligations set out herein.
6 Limited Warranty and Liability
6.1 The Licensor points out that it is not possible with today’s technology to produce software that operates without any errors in all applications and combinations. The subject of the License hereunder therefore is only software which can be used in accordance with the documentation and instructions in all material aspects.
6.2 Furthermore, the Software is meant to be used in the field of computer graphics and serves the purpose of creating visual images, which in many instances qualifies as art. While particularly in artistic environments erroneous behavior of the Software or results therefrom may be seen as acceptable, such behavior and results are very likely only temporary and subject to short-term change and remediation. The Licensor tries to accommodate popular feature requests, however, providing a technically sound and robust Software takes precedence over erroneous behavior, no matter how artistic the result may be.
6.3 If the Software is made available by the Licensor free of charge, i.e. without an obligation to pay a license fee, and/or the Software is distributed as “Alpha”, “Beta” or “Trial/Demo” version, it is provided on an “as is” basis, may be subject to changes due to ongoing development and, to the extent legally permissible, any warranty, whether express or implied is expressly excluded. Particularly, the Licensor makes no warranty as to merchantability, fitness for a particular purpose. The Use of the Software under these circumstances is to be considered experimental and the Licensor strongly advises against using the Software for professional work.
6.4 With regard to Licenses purchased by the Licensee, i.e. made available against payment of a license fee, the Licensor warrants that the Software conforms to the specifications and may be used in accordance with the documentation and instructions in all material aspects, provided it is used properly in accordance with this Agreement, instructions are being followed, the system requirements are strictly met and the most recent version of the Software is employed. Any other warranty, whether express or implied, is expressly excluded. Particularly, the Licensor makes no warranty as to merchantability, fitness for a particular purpose. Furthermore, any warranty claim may only be brought by lawful holders of a License who have paid their license fee in full and can prove their lawful purchase.
6.5 In case the Software operates in the form of a plug-in to be used in conjunction with another software, the Licensor has no influence on the functionality and further development of any third-party software. Thus, the functionality of the Software as per the specification can only be warranted with regard to the third-party software and versions thereof that are expressly stated within the specifications and system requirements and to the extent the functionality of any such third-party software does not change, which, however, may be the case.
6.6 Warranty claims may only be brought within 12 months upon the initial purchase of a License.
6.7 Third Party Rights
6.7.1. The Licensor warrants that, to the best of its knowledge, the Software does not violate any third-party rights, provided it is being used in full compliance with this Agreement.
6.7.2. If the Software was delivered to you in return for payment of a license fee, under the warranty pursuant to clause 6.8.1 the Licensor will indemnify the Licensee against claims due to a violation of third party rights in accordance with the subsequent provisions.
6.7.3. The conditions for claims based on violations of third party claims are as follows:
126.96.36.199. you must immediately inform the Licensor in writing as you become aware of a possible claim.
188.8.131.52. you must cooperate with the Licensor in disputing the claim, however you recognize in advance that the Licensor will take the lead in disputing the claim.
6.8 The Licensor has the exclusive right to decide whether to dispute or settle the claim. The Licensor shall have the right to acquire corresponding licenses or to modify the Software in such a manner that the violation of third party rights is no longer present.
6.9 Regardless of the legal basis and insofar as legally permissible, the Licensor shall only be liable in case of personal injury, willful or gross negligent behavior and any liability of the Licensor shall not exceed the license fee paid by the Licensee. Particularly, the Licensor shall not be liable for indirect or subsequent damages, loss of profits or losses due to data loss.
7 Choice of Law / Jurisdiction & Arbitration
7.1 This Agreement shall be subject to and construed in accordance with Austrian Law, its conflict of laws rules as well as the UN-Convention on the International Sale of Goods (CISG) excluded.
7.2 If the Licensee‘s seat or relevant place of business is located within the territory covered by the Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters or the European Regulation on Jurisdiction, Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels I) any dispute arising out of or in connection with this Agreement shall be heard before the competent court for Klagenfurt, Austria, which shall have exclusive jurisdiction.
7.3 If the Licensee‘s seat or relevant place of business is not located within the aforementioned territory, all disputes or claims arising out of or in connection with this Agreement, including disputes relating to its validity, breach, termination or nullity shall be finally settled under the Rules of Arbitration of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (Vienna Rules) by three (3) arbitrators appointed in accordance with the said Rules. The place of arbitration is Klagenfurt, Austria. The arbitral proceedings shall take place in Klagenfurt, Austria. The language to be used in the arbitral proceedings shall be English.
8.1 Amendments or modifications of this Agreement need to be set forth in a written document hand signed by a managing director of the Licensor making express reference to the contradiction between this Agreement and the individually agreed upon term and stating that such term is meant to take precedence over the incompatible provision contained in this Agreement. Any provision fulfilling this requirement shall take precedence over the incompatible provision contained in this Agreement to the extent necessary.
8.2 Licensor expressly reserves the right to unilaterally transfer and assign the Agreement including any and all rights and obligations hereunder to a third party. Such transfer and assignment shall not require the consent by the Licensee.
8.3 Claims of the Licensee may only be offset against claims of the Licensor if they have been accepted by the Licensor in writing or have been found to be valid by the competent court or tribunal and such decision has become final and binding upon the parties.
8.4 If any of the provisions of this Agreement are determined to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the remainder of this Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions. The parties agree that if any provision of this Agreement is determined to be invalid or unenforceable, it is their desire and intention that such provision shall be deemed to having been replaced by a valid substitute provision coming closest to what the intention behind the invalid or unenforceable provision was. The same shall apply to any unintended gaps in this Agreement.