pentoo-overlay/licenses/Paterva-EULA

Retrieved from https://dolores.paterva.com/media/eula/201807_Paterva_EULA.PDF (2019-08-23)

                             General Terms and Conditions
                      for Software License Agreements of Paterva
                               (Effective 23 July 2018)

These General Terms and Conditions apply to all licenses (hereinafter referred to as “Software
Licenses“) which are issued by Paterva (Pty) Ltd. (incorporated in South Africa under
registration number 2008/005705/07), (hereinafter referred to as “Licensor“) to its customers
(hereinafter referred to as “Licensee”) (Licensor and Licensee also referred to as “Party” and
collectively the “Parties”), and which refer to the client components “Maltego XL”, “Maltego
Classic”, “Maltego CE”, “Casefile” (“Client Components”) or the server components “private
CTAS”, “iTDS”, “Comms Server”, “MDS” (“Server Components”) (Client Components and
Server Components as well as other computer programs provided by the Licensor hereinafter
also referred to as “Software“). Software subject to these General Terms and Conditions is
the intellectual property of the Licensor and/or Maltego Technologies GmbH, registered in the
district court Munich, Germany under no. HRB 236523 (“Maltego”). To the extent that Software
is owned by Maltego, the Licensor has sufficient rights to license same to the Licensee.

1. Contractual Object
1.1. These General Terms and Conditions govern the Software Licenses issued to the
     Licensee by the Licensor by way of a Software License Agreement. Sec. 3 specifies
     the scope of each Software License subscribed regarding the specific Software being
     licensed as well as the content, location, time and extent of the user rights.
1.2. The number of subscribed Software Licenses and the software components to which
     these Licenses refer are specified in the Electronic Delivery Document (sec. 2.2.)
     issued by the Licensor to the Licensee.
1.3. The Licensee is obliged to pay the fee according to sec. 6. The fee constitutes
     consideration for the rights to use the Software.

2. Conclusion of Contract
2.1. Software License Agreements are concluded in one of the following ways:
     (a) If the Licensee orders Software from the Licensor online via a website, the
         Licensee makes a binding offer by completing and submitting the online order
         form and confirming to accept these General Terms and Conditions and the data
         protection statement by ticking the relevant box. The contract shall become
         effective, if the Licensor sends via e-mail an explicit declaration of acceptance to
         the Licensee in addition to an automatic order confirmation.
     (b) If the Licensee has requested a quotation from the Licensor or has sent a
         purchase request to the Licensor, the Licensor will send together with its binding
         offer a contract form via e-mail to the Licensee. The contract shall become
         effective including these General Terms and Conditions, if the Licensee returns
         the completed contract form (via post or e-mail) to the Licensor or otherwise
         accepts the binding offer of the Licensor (e.g. via its own order form).
     (c) If a Software License Agreements and/or these General Terms and Conditions
         have not been effectively agreed upon according to sec. 2.1. (a) or (b), then at
         the latest a Software License Agreements including these General Terms and
         Conditions is deemed concluded with the user upon them installing, copying, or
         otherwise using the Software. This applies explicitly if the user has bought the
         Software from a Reseller (“Reseller Version”, sec. 9) or if he is rightfully using a
         training, trial or other free version of the Software (“Free Version”).
2.2. Upon or with the conclusion of the contract the Licensor sends an electronic delivery
     document (pdf) via e-mail to the Licensee (“Electronic Delivery Document”) which
     contains a list of the licenses subscribed, the necessary access information for
     downloading and installing the software and links for downloading the documentation.
     In case of a Reseller Version the Electronic Delivery Document is only sent to the End
     User of the Software.
2.3. If the Licensee subscribes to more than one Software License form the Licensor, each
     subscription constitutes a separate Software License Agreement. Software upgrades
     or subscriptions to additional Software Licenses constitute separate Software License
     Agreements to the effect that Software Licenses held by the Licensee may expire on
     different dates. Upgrades and additional subscriptions are subject to these General
     Terms and Conditions, even if the Licensee has not explicitly consented to them at the
     time of the upgrade or the additional subscription.

3. Scope and Grant of Software Licenses
3.1. Software Licenses subscribed under these General Terms and Conditions grant a non-
     exclusive, non-transferrable and non-sublicensable right to temporarily use the
     software component. At the time of installation of the software component the Licensee
     has to choose between one of the following two modes of usage:
     (a) Either the Software may be used as a personalized license, which is valid only
         for one specific user (but may be used by the same user on several computers
         or mobile devices). If the Licensee wishes a Software License for more than one
         user, e.g. several employees, it needs to subscribe individual Software Licenses
         for each of these users.
     (b) Or the Software may be used as a device-specific license, which is valid only for
         one specific computer or mobile device that may be used by several individuals.
         However, device-specific Licences may not be used concurrently by more than
         one individual on the same computer.
     The Licensee is not entitled to use the Software in the two modes of usage at the same
     time. Thus, as soon as one of the alternatives has been selected on installation of the
     Software, the other alternative mode of usage may not be used.
     Despite any other term of these General Terms and Conditions, the Maltego CE Client
     Component may be used for non-commercial purposes only and may not be used for
     commercial gain or monetary compensation.
3.2. It is the Licensee’s exclusive responsibility to ensure that using the Software conforms
     with applicable laws, in particular of countries in which the Software is used. The
     Software may not be used in the generation of unsolicited email (spam) or for unethical
     purposes. The Licensee warrants that: (i) it is not a citizen, national, permanent resident
     of, or incorporated or organized to do business in, and is not under the control of the
     government of any country to which the United States or European Union embargoes
     goods; (ii) it is not included on any list of sanctioned or ineligible parties maintained by
     the United States or European Union; (iii) Licensee will not sell, export, re-export,
     transfer, use, or enable the use of the Software, its related technology and services, or
     any other items that may be provided by Licensor, directly or indirectly: (a) to or for end-
     use in or by the countries listed in (i) above or any citizens, nationals or permanent
     residents of such countries; (b) to or for end-use by any person or entity determined by
     any United States or European Union agency to be ineligible to receive exports,
     including but not limited to persons and entities designated on the lists described in (ii)
     above; and (c) to or for end-uses prohibited by United States or European Union export
     or sanctions laws and regulations. The Licensee shall indemnify the Licensor against
     all liability, claims, damages, cost and expenses suffered as a result of the Licensee’s
     use of the Software not complying with applicable law or the Licensee’s breach of the
     warranties and provisions in this clause 3.2.
3.3. Software Licenses entail the right to download, install and run the Software. The
     Licensee may create backup copies, restricted to absolutely necessary numbers,
     should it be necessary to do so due to reasons of data security or the retention of a
     quick reactivation of the computer system after a total failure of the scheduled backup
     of the total data storage. The relevant data carriers are to be designated as such. The
     backup copies may only be used for archive purposes.
3.4. Notwithstanding sec. 3.1. and sec. 3.3. the Licensee has no right to reproduce or copy
     the Software or the Documentation. The Licensee shall not translate, adapt, develop,
     vary, modify, disassemble, decompile or reverse engineer the Software or allow any
     third party to do so. The Licensee shall not circumvent any licensing, control, security
     or encryption features or reverse engineer any communication protocols. The Licensee
     is not permitted to sell, lend, rent, or sublicense the Software or to reproduce or to make
     the Software or the Documentation available to third parties.
3.5. Copyright markings, serial numbers as well as other characteristics serving purposes
     of identification of the Software, may not be eliminated or changed. The same applies
     to suppressing the display of such features on the screen.
3.6. The Licensee shall be obliged to take suitable measures to prevent unauthorised
     access to the Software and the Documentation by third parties. The Licensee shall
     keep the original data that was supplied to it and the backup copies in a safe place
     secured against unauthorised access by third parties. Compliance with these General
     Terms and Conditions and with the provisions of copyright law must be emphasised to
     the Licensee’s employees and the Licensee shall be liable to the Licensor for the
     actions of the Licensee’s employees.

4. Download, Update, Upgrade, Support
4.1. The Software will be delivered by download; no hardware is included. If the Licensee
     is provided with access data for the download (such as logins, passwords, etc.), it will
     keep all access data strictly confidential and will refrain from passing it on to third
     parties. The Licensee will take reasonable measures to protect access data against
     unauthorized use by third parties. The Licensee will immediately notify the Licensor in
     writing if any access data is accessed by any unauthorized party.
4.2. At any time, the Licensee has the right to upgrade or downgrade Software Licenses to
     other software editions offered by the Licensor. Up- or downgrades neither lead to a
     prolongation of existing Software License Agreements nor trigger the beginning of a
     new Contract Year (as defined in sec. 11.1.).
     (a) If the Licensee downgrades the Software to a cheaper product, no payment will
         be refunded for the current Contract Year (sec. 11.1). If the Software License
         Agreement is prolonged beyond the current Contract Year, each of the following
         Contract Years will be charged with the Renewal Annual Rate (sec. 6.1.) of the
         cheaper Software.
     (b) If the Licensee upgrades the Software to a more expensive product, the Licensee
         has to pay the Upgrade Rate on top of the Initial Annual Rate. The applicable
         Upgrade Rate is the price difference between the Initial Annual Rate (sec. 6.1.)
         of the more expensive product and the Initial Annual Rate of the cheaper product.
         The Upgrade Rate covers the Software use for the remaining time of the current
         Contract Year (sec. 11.1.). If the Software License Agreement is prolonged
         beyond the current Contract Year, each of the following Contract Years will be
         charged with the Renewal Annual Rate (sec. 6.1.) of the more expensive
         Software.
4.3. The Licensor provides support by the following means:
     (a) The Licensor or its contractors provides a basic e-mail support. The Licensor
         ensures that support requests by e-mails will be answered in due time. The e-
         mail address for support requests is published on the website of the Licensor.
     (b) The Licensor may release updates of the specific edition of a Software and
         specify same for the Licensee’s use during the duration of the Software License
         Agreement, but the Licensor shall have no obligation to create or release any
         updates. Any obligation the Licensor may have to support the previous version
         of the Software may be ended upon availability of the Update.

5. Transforms and Transform Servers
5.1. Depending on the Software edition the Licensee has subscribed to, the user has the
     right to start, run and use software operations (“Transforms”). The Licensor or third
     parties offer various types of Transforms that may be selected within the user interface
     of the Client Component.
5.2. Depending on the Software edition the Licensee has subscribed to, the Client
     Component connects via internet to external servers, on which Transforms are
     performed (“Public Transform Servers”). Public Transform Servers may be operated
     by the Licensor, Maltego or any third party. When the Licensee exchanges data with
     Public Transform Servers of third parties, it is the Licensee’s exclusive responsibility to
     conform with all laws (including, but not limited to data protection laws) applicable.
5.3. Transforms on the Public Transform Servers are provided either for free or as paid
     services. The number and selection of Transforms provided depend on the Software
     edition the Licensee has subscribed to. The Licensor has the right to modify the number
     and selection of Transforms or to limit the volume of specific free Transforms to the
     effect that using them beyond a certain extent costs extra.
5.4. The Licensor’s Transforms available are listed in the Licensor’s Transform Guide which
     is published on the Licensor’s website and may be updated from time to time.
5.5. Depending on the Software edition the Licensee has subscribed to, the Software
     connects via network to internal servers of the Licensor or Maltego, on which
     Transforms are performed (“Internal Transform Servers”). Internal Transform Servers
     may use open source software that is provided by a third party. The Licensee must
     comply with the license terms of the respective open source software. The Licensor is
     not responsible for the content, functionality and results of open source software.
5.6. The Licensor is not responsible or liable for the content, functionality and results of
     Transforms, Internal Transform Servers or Public Transform Servers. Transform
     Servers may connect to external servers and databases operated by third parties. The
     Licensor takes no responsibility as to the data protection standard or any other security
     aspect of these external sources of information and the Licensee uses them at its own
     risk. The availability of the content or services is at the sole discretion of the third party
     and may be subject to usage agreements and other restrictions. The Transform
     Servers availability and quality of service is at the sole discretion of the respective third
     party provider.

6. Payment; Invoicing; Delay
6.1. For Software License Agreements subject to these General Terms and Conditions the
     Licensee is obliged to pay to the Licensor an annual fee for each Contract Year as
     defined in sec. 11.1. The annual fee for the first Contract Year (“Initial Annual Rate”)
     is specified in the order confirmation. The annual fee for the following Contract Years
     (“Renewal Annual Rate”) is subject to an increase and will be specified either in the
     order confirmation or in the Licensor’s price list from time to time, which the Licensor
     may publish on its website or make available by other means.
6.2. Every annual fee is to be paid in full by the latest 30 days after the beginning of each
     Contract Year (sec. 11.1.) upon receipt of the respective invoice. If the Software
     License Agreement is concluded online via a website, the annual fee is due for payment
     before the beginning of the respective Contract Year.
6.3. Value added tax (VAT), sales tax or equivalent taxes at the applicable rate will always
     be added to the prices and fees, as far as such taxes are imposed by law. Any
     additional charges, import duties or taxes applicable in the country of the Licensee on
     installation, usage or delivery of the Software are to be borne by the Licensee. Should
     the Licensee by whatever means bring the Software into or use the Software in another
     domestic jurisdiction and should this trigger additional VAT, taxes, charges, import
     duties or other taxes, they are to be borne by the Licensee; the Licensee shall indemnify
     the Licensor against all claims, liability, costs and expenses in this regard.
6.4. If payment dates are delayed, default interest shall be due and payable by the
     Licensee. The default interest amounts to two percentage points above the prime
     interest rate charged by the Licensor’s primary bankers from time to time. Should
     payments owed by the Licensee to the Licensor be delayed by more than 2 weeks, the
     Licensor may deactivate the license keys provided to the Licensee and interrupt the
     Licensee’s access to the Public Transform Servers (“kill switch”). The Licensee agrees
     to such deactivation and shall have no claims against the Licensor in this regard.
6.5. The Licensee may set off claims or exercise a right of retention against monetary claims
     of the Licensor resulting from this agreement only if and to the extent its claims are
     undisputed or finally adjudicated.
6.6. In case the Licensee is using a Free Version of the Software then he is bound by these
     General Terms and Conditions according to sec. 2.1. (c), but does not need to pay a
     fee for the Software License. By derogation of sec. 11.2., each Party has the right to
     ordinarily terminate the Software License Agreement for a Free Version by providing
     the other Party with a termination notice in writing (e-mail suffices) or in the user
     interface of the Software with a notice period of two weeks. In all other cases, the
     Licensee is obliged to pay to the Licensor an annual fee pursuant to the Licensor’s
     current price list, unless otherwise agreed.

7. Alteration of the GTC and Prices Increases
7.1. After the conclusion of a Software License Agreement the Licensor has the right to alter
     the General Terms and Conditions and/or raise the Renewal Annual Rates applicable
     to the said Software License Agreement in the following procedure:
     (a) The Licensor sends a written (e-mail suffices) declaration (“Declaration”) to the
         Licensee informing the latter about the new General Terms and Conditions
         and/or the new Renewal Annual Rates and the point of time at which the changes
         shall become effective. Prices may only be raised with effect of the beginning of
         future Contract Years (sec. 11.1.).
     (b) The Declaration must reach the Licensee at the latest eight weeks before the
         changes shall take effect. A Declaration that is sent to the latest e-mail address,
         that was specified by the Licensee (e.g. in the order process), shall be deemed
         received by the Licensee. The Licensor may also use other means to deliver the
         Declaration to the Licensee (e.g. a pop-up window in the Software).
     (c) Within six weeks from receipt of the Declaration, the Licensee has the right to
         terminate the Agreement with effect from the date upon which the changes shall
         take effect.
     (d) If the Licensee does not terminate within the period stipulated in paragraph (c)
         above, the Licensee will be deemed to have accepted the new General Terms
         and Conditions and the new Renewal Annual Rates as per the Declaration.
7.2. The Parties may agree on separate provisions relating to price increases, provided that
     such provisions are agreed to in writing.

8. Product Conformity
8.1. The functionalities of the Software are described in the Documentation that is valid at
     the time of the conclusion of the Software License Agreement. The Documentation may
     be revised by the Licensor from time to time. The Documentation may include end user
     manuals, operation instructions, installation guides, release notes and on-line help files.
     Malfunctions that limit the usability of the Software only marginally and deviations in
     the user interface do not constitute non-conformities.
8.2. The Documentation as well as the product specifications, illustrations, drawings,
     particulars, performance data and other data and information provided on the
     Licensor’s website or otherwise made available only contains a product description and
     shall not be deemed to constitute a guarantee or any other kind of warranty of specific
     characteristics unless explicitly referred to as such.
8.3. Defects of the software that constitute a non-conformity must be notified in writing with
     a comprehensible description of the error symptoms, as far as possible evidenced by
     written recordings and software log files, hard copies or other documents
     demonstrating the defects. The notification of the defect should enable the reproduction
     of the error. This shall not affect the statutory obligation of the Licensee to inspect and
     notify defects.
8.4. The Licensee must inspect the software for obvious defects without delay and any
     defect discovered must immediately be reported to the Licensor in writing. The same
     applies if any such defect is subsequently discovered. Providing software to the
     Licensee by download from a server via internet shall be deemed a delivery within the
     meaning of this clause.
8.5. The Licensor is not obliged to do any installation and configuration services. The
     Licensor does not give any warranty that the hardware and software environment of
     the Licensee’s computer system fulfils the requirements of the software provided by
     the Licensor. The respective Documentation enumerates the system requirements
     necessary for running the software.

9. Reseller Version
9.1. Licensees that buy the Software not for their own use, but to resell the Software to third
     parties (“Reseller”), have the right to purchase on behalf of its customer (“End User”).
     Such licenses may only be used by the respective End User.
9.2. The End User is bound by these General Terms and Conditions according to
     sec. 2.1. (c) as well as the Reseller. The End User and the Reseller therefore must
     comply with all provisions of these General Terms and Conditions as Licensee with the
     following alterations:
     (a) Only the End User may exercise the rights as Licensee.
     (b) Unless the Reseller pays the fee according to sec. 6. to the Licensor, such fee is
         payable by the End User.
9.3. The Reseller shall take the necessary measures in order that the End User may be
     bound by these General Terms and Conditions, in particular point out to the End User
     that the resale of the Software is subject to these General Terms and Conditions.

10. Limitation of Liability
10.1. To the fullest extent permitted by law, the Licensor will have no liability for any loss,
     damage (whether direct or indirect), cost, expense, injury, claim or penalty of
     whatsoever nature including, but not limited to, indirect and consequential loss or
     damage and loss of profits, however arising out of or in connection with a Software
     License Agreement, the Software or use of the Software. The aforesaid shall not apply
     to the extent that the loss, damage, cost, expense, injury, claim or penalty arose as a
     result of the Licensor’s gross negligence.
10.2. The Licensor shall not be liable for and the Licensee hereby indemnifies Licensor
     against any and all liability, loss, damage, penalty, cost or claim of any nature
     whatsoever suffered by the Licensee or any third party in relation to any act or omission
     of the Licensee in relation to the Software and/or the use thereof.
10.3. The Licensee is obliged to take sufficient data backup measures at least on a daily
     basis in order to limit the risk of data losses.
10.4. Should a court hold sec. 10.1 invalid, the liability of the Licensor for a malfunction of
     software is limited to the amount the Licensor received or is entitled to receive as fee
     out of the respective Software License Agreement for the current contract year.

11. Duration of Software License Agreements
11.1. Unless explicitly agreed otherwise Software License Agreements extend to a fixed
     period of 12 months (“Contract Year”), which starts on the receipt of the Electronic
     Delivery Document (sec. 2.2.) by the Licensee. Every Software License Agreement will
     be renewed and extended by a further Contract Year (12 months), if the respective
     Software License Agreement is not terminated by either Party in writing (e-mail
     suffices) or in the user interface of the Software four weeks before the expiry of the
     previous Contract Year. Such automatic extension may occur several times until the
     Software License is terminated in due time.
11.2. Apart from termination in accordance with sec. 11.1. and 11.3., the Parties waive their
     right to ordinarily terminate Software License Agreement.
11.3. The Licensor may terminate Software License Agreements for cause,
     (a) if the Licensee is in delay with payments owed to the Licensor by more than 4
         weeks, or
     (b) if the Licensee uses the Software in violation of the limitations stipulated in sec. 3.
         or missuses it for unlawful purposes or actions,
         or
     (c) if the Licensee commits a material breach of this Agreement and, if such breach
         is capable of remedy, fails to remedy the breach within 10 days of receiving notice
         from the Licensor.

11.4. With any lawful termination of a Software License Agreement the Licensee’s right to
     use software automatically expires. In this case, the Licensee must immediately and
     completely discontinue the use of the Software, delete all copies of the Software
     installed on its systems and delete the backup copies that may have been created
     unless the Licensee is obliged by law to retain the copies. The Licensor may deactivate
     the license keys provided to the Licensee and interrupt the Licensee’s access to the
     Public Transform Servers (“kill switch”) and the Licensee shall have no claims against
     the Licensor in this regard.
11.5. Without prejudice to the preceding sections, the Licensor always has the right to
     discontinue one or several of its Software Products. If it does so, the Software License
     Agreements for discontinued Software end automatically with the elapse of the current
     Contract Year. A notice of termination is not necessary.

12. Confidentiality
12.1. The Parties are obliged to treat strictly confidential all information, business secrets and
     data disclosed or handed over and/or otherwise made accessible during the
     cooperation and the execution of the Software License Agreement (“Confidential
     Information”). Such Confidential Information shall not be shared in whole or partially
     with third parties. Measures that serve the purpose of this Agreement shall be
     permitted.
12.2. The following information shall be considered Confidential Information:
     (a) the licence keys,
     (b) information regarding the Licensor’s pricing policy, product roadmaps or strategic
         marketing plans,
     (c) non-public materials relating to the Software.
12.3. The confidentiality obligation shall not apply to information which
     (a) was already known to a Party prior to the conclusion of a contract,
     (b) is public, unless such fact has become public due to a culpable breach of a
         confidentiality obligation under this Agreement, or
     (c) has been explicitly designated as not confidential.
12.4. The Licensor shall be entitled to share confidential information only with those
     employees, affiliates, group entities, independent advisors or service providers who are
     concerned with the completion, implementation or fulfilment of a Software License
     Agreement, to enable usage of the Software or to provide support and related services.
     Each Party shall ensure that such persons are obliged to keep the confidential
     information received confidential, unless such persons are bound by a professional
     confidentiality obligation, e.g. as an attorney, tax advisor or auditor.
12.5. After termination of a Software License Agreement, each Party shall delete all data
     received, notes and copies thereof, if any, in due course, unless the receiving party is
     obliged by law to retain the confidential information.

13. Miscellaneous
13.1. Only with the prior written consent of the Licensor the Licensee may assign claims and
     rights against the Licensor to third parties. The Licensee agrees that the Licensor may,
     without the Licensee’s consent, cede or assign its rights and obligations to a third party,
     but the Licensor shall provide the Licensee with notice of such cession and assignment.
13.2. No verbal side agreements exist. Amendments or additions to contractual agreements
     between the Parties must be made in writing (e-mail suffices) and must – on the side
     of the Licensor – be performed by a duly authorized person explicitly stating that the
     amendment or addition changes the contractual agreement between the Parties. This
     also applies if this form requirement shall be suspended.
13.3. Should one or more provisions of this General Terms and Conditions or other written
     Agreements be or become invalid or unenforceable, this shall not affect the validity and
     enforceability of the remaining provisions. In place of the invalid or unenforceable
     provision, such legally valid and enforceable provision shall apply which reflects as
     closely as commercially possible the spirit and purpose of the invalid or unenforceable
     provision.
13.4. The Parties hereto hereby irrevocably and unconditionally consent to the non-exclusive
     jurisdiction of the High Court of South Africa, Gauteng Division, Pretoria, in regard to
     all matters arising from Software License Agreements.
13.5. The place of performance for all services arising from contracts between the Parties is
     the seat of the Licensor.
13.6. The contractual relation between the parties shall be subject to the law of the Republic
     of South Africa.


Paterva GTC EULA
Updated July 2018