(deutsche Version).


Important:
The following licence agreement is for the non-free distribution package of the Smalltalk/X package. The conditions for the free version are found in LICENCE_FREE_STX.html.

You may only install and use Smalltalk/X if you accept the terms of the following software licence agreement.
If you do not agree with those terms, please remove all copies of the program and support files from your system and contact eXept.


Software Licence Agreement
General Terms of Business

Deutscher Text


Software Licence Agreement

Exept Software AG
Talstr. 3
74321 Bietigheim-Bissingen
Germany
Tel.: +49-7142-91948-0
Fax: +49-7142-91948-44
Email: info@exept.de

§ 1 Scope of License and Compensation

(1)
This agreement governs the use of the computer program Smalltalk/X, which, dependent of the version acquired by the user, full, evaluation, or non-commercial, consists of the components as listed in the version description, hereafter summarily designated as SOFTWARE. The price is specified in the current valid price list of eXept Software AG, hereafter referred to as eXept. Excluded from the contract is any public domain software and freeware which is contained on the media. These software components are provided to the user without cost and excluding any guarantee whatsoever.
(2)
The SOFTWARE is permanently licensed to the user.

§ 2 Copying Restrictions and Safeguarding

(1)
The user may copy the delivered program as long as the respective copying is necessary for the use of the program. The necessary copying are the installation of the program from the original media to the media of the used hardware as well as loading the program into memory.
(2)
In addition the user may make a copy for the backup purposes. There may however be only one backup copy made and preserved at any given time. This backup copy is to be marked as such.
(3)
By using suitable precautions, the user is obliged to prevent unauthorized third parties from gaining access to the program or the documentation. The original media as well as the backup copies are to be kept in a secure place. The adherence to these contractual obligations is to be expressly pointed out to the employees of the user.
(4)
Additional copies, including the output of program code on the printer as also photocopies of the handbook, shall not be made by the user. If the purchased version does not include a handbook, then the user has the right to make a copy by printing the program documentation.

§ 3 Multiple Use and Use in a Network Environment

(1)
The user may install the software on any computer hardware that is available to him. If however, the user changes computer hardware, he must delete the SOFTWARE from all media belonging to the hitherto utilized computer hardware. If the user disposes seperately of any media or apparatus containing the SOFTWARE, he will ensure that he has completely erased or otherwise destroyed any SOFTWARE contained on such media or stored in such apparatus.
(2)
A concurrent loading of, saving on or use of the SOFTWARE in more than one independent computer hardware is forbidden. The installation in a network is regulated in paragraph 3. If the user wishes to concurrently utilize the SOFTWARE on more than one computer hardware, then he must acquire the licenses for the corresponding number of the SOFTWARE programming packages.
(3)
The installation of the licensed SOFTWARE in a network or in another multi-user system is forbidden, as far as the possibility of concurrent multiple utilization is thereby created. If the user wants to install the SOFTWARE in a network or in another multi-user system, he must prevent the concurrent multiple use through an access protection mechanism or tender eXept a special network license fee. The size of the license fee depends on the number of users in the multi-user system. The user will be notified of the network fee to be paid in each individual case, as soon as eXept has been given notice of the planned network installation including the number of connected network users. The installation in the network is only permitted after the complete payment of the network license fee.

§ 4 Transfer Restrictions

(1)
The user may transfer the SOFTWARE and all rights in the SOFTWARE granted to him in this agreement including the user handbook and accompanying materials to the transferee provided that such transferee agrees in writing to accept the terms and conditions of this agreement.
(2)
The user must preserve this agreement. Before transferring the SOFTWARE, the user must present the new user this agreement for the new users information. Should the user not have this agreement in his possession at the time of the transfer, he is required to request a replacement copy from eXept. The user bears the resulting shipping and handling costs.
(3)
In the case of a transfer of the SOFTWARE the user must give the transferee all SOFTWARE, including, if necessary, all backup copies, or destroy all non-transferred copies. As a result of the transfer the rights and licenses granted to the user in this agreement expire. The user has the obligation, as stated in ß11 Paragraph 1 of this agreement, to inform eXept of the SOFTWARE transfer.
(4)
The user may transfer the SOFTWARE and all rights in the SOFTWARE granted him in this agreement including the user handbook and accompanying materials to the transferee for a given period of time, i.e. renting, leasing, lending, provided that such transferee agrees in writing to accept the terms and conditions of this agreement. In the case of a transfer of the SOFTWARE for a period of time the user must give the transferee all SOFTWARE, including if need be all backup copies, or destroy all non-transferred copies. As a result of the transfer of the SOFTWARE for the given period of time, the user forfeits for the said period the rights and licenses granted to him in this agreement.
(5)
The user may not transfer the SOFTWARE either completely or for a period of time, if a well-founded suspicion exists, that the transferee will violate this agreement, especially produce unauthorized copies. This applies also with regard to the employees of the user.

§ 5 Recompiling and Program Changes

(1)
The decompilation of the SOFTWARE into another code form as well as the reverse engineering of the SOFTWARE including program changes are allowed for own use, especially with the aim of debugging or extending the scope of the SOFTWARE. For own use in the sense of this agreement is to be considered especially the private utilization by the user. In addition, for own use is also considered to be the professional or for-gainful-employment utilization as long as the utilization is limited to utilization by the user and his employees and is not utilized externally in any commercial manner.
(2)
The removal of copy protection or similar protection routines is only allowed, if the protection mechanism limits or hinders the error free utilization of the program. The user bears the burden of proof for the limitation or hinderness of the error free use due to the protection mechanism.
(3)
Commercial third parties, which are in a potential competitive relationship to the supplier, may carry out the corresponding acts in the sense of paragraphs 1 and 2 of this agreement, only if the supplier will not carry the desired program changes for a suitable remuneration. The supplier shall be given an adequate appointed time to scrutinize the mandate.
(4)
In the case the forenamed acts shall be carried out for commercial reasons, then they are only allowed if they are essential for the production, maintenance or the functioning of an independently produced interoperable program and the necessary information was not published or otherwise accessible.
(5)
Proprietary and copyright notices, serial numbers as well as legends shall not in any case be removed or changed.

§ 6 Guarantee

(1)
eXept guarantees a program, which is useful in sense of the program description. Defects in the delivered SOFTWARE including the handbooks and other material will be rectified by the supplier inside of the guarantee period of six (6) months after the corresponding notification by the user. This takes place by the choice of the supplier whether the rectification occurs through a free repair or through a replacement.
(2)
If the defect cannot be rectified inside of a suitable period or if it appears that the repair or substitution fails for whatever reason, the user can demand a fee reduction or contract annulment. The failure of the repair or substitution proceeds from the point, at which the supplier has had sufficient time for repairing or for substitution without the desired success being reached, at which repair or substitution is impossible, at which the supplier refuses or unacceptably delays, or at which justifiable doubt exists about the chance of success.

§ 7 Guarantee Expiration

(1)
The guarantee expires, if and in so far as the user changes components or combines components in a way which is not foreseen or described in the documentation.
(2)
If it turns out within the framework of a repair, that the occurring failure results from acts as described in paragraph 1, eXept is required to inform the user thereof without delay. The user bears the hereby resulting costs.

§ 8 Duty of Examination and Reproof

(1)
The user is required to examine the delivered SOFTWARE for obvious defects which would attract the attention of an average user without further ado. Obvious failures, especially missing media or handbooks as well as substantial, easily seen damage to the media, are to be registered with eXept in writing within two weeks of the date of delivery.
(2)
Failures, which are not obvious, must be registered with eXept in writing within two weeks of the perception of the failure. The failure and especially the occurring symptoms are to be documented to the best of the userís ability.
(3)
In the case of a violation of the duty of examination and reproof the guarantee expires with respect to the failure in question.

§ 9 Ownership of the Software and Media

(1)
The user agrees and acknowledges that eXept transfers no ownership interest in the SOFTWARE, in the intellectual property in any SOFTWARE or in any SOFTWARE copy, to the user under this agreement or otherwise, and that eXept and its licensors reserve all rights not expressly granted to the user hereunder. The user owns the media on which the SOFTWARE was originally provided to the user hereunder and on which the user subsequently copies the SOFTWARE, but eXept and its licensors shall retain ownership of all SOFTWARE or portions thereof embodied in or on such media.
(2)
eXept reserves the ownership of the media, which was delivered to the user, until the complete payment of all outstanding debts at the time of delivery or later occurring debts, which occur due to this contractual software license agreement. In the case of payment with a check or draft payment, then until their clearance.
(3)
In the case of the user being in arrears, then the assertion of the reservation of the right of ownership by the supplier does not mean a retirement of the contract unless eXept explicitly informs the user of such.

§ 10 Limitation of Liability

(1)
For damage due to defect of title and missing promised qualities eXept has unlimited liability.
(2)
Damage claims due to an active violation of the requirements, fault at the closing of the contract, or unlawful action against eXept or its legal representative are excluded so long as this damage is not caused by deliberate, willful, or truly negligent action on the part of eXept or its legal representative. This does not include claims in tort due to promised qualities or functionality, which should protect the customer against the risk of successive of following damages. If the user is a legal entity, for whom the SOFTWARE is used to operate its business, then the claims of replacement of such damages is limited to those which are normally calculated to occur with the installation or use of this SOFTWARE.
(3)
If it occurs, that the user of the licensed SOFTWARE suffers the loss of data, eXept is liable for the occurring damage only as long as the user backed up and archived his data in intervals and methods, which were adequate for the application, so that this can be reconstructed within an economically justifiable expense.

§ 11 Duty of Notification

(1)
The user is required in the case of a transfer of the SOFTWARE to inform eXept in writing of the full name and address of the transferee.
(2)
Inasmuch as it is a question of licensed SOFTWARE which is especially adapted for the userís computer hardware with a buying price of more than DM 5.000,00, then the user is required to inform eXept in writing of a change in the computer hardware inside of the warranty period or during the existence of a maintenance contract. The same is true in the case where the user wants to install the SOFTWARE in a network environment.

§ 12 In Writing

(1)
Changes or extensions to this software license agreement, especially those transcending the normal settlements as well as promises or agreements may not be made by the supplier or his employees. No modification to this agreement shall be in any force whatsoever unless made in writing and signed by each party.

§ 13 In General

(1)
As a rider to this software license agreement the general terms of business of eXept are in force. These can be seen in the offices of eXept and will be sent to the user on demand.
(2)
If any provision of this agreement is held invalid or unenforceable for any reason, such invalidity shall not affect the validity of the remaining provisions of the agreement, and the parties will substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provision.



Rev. 4: January 2012 - Address change
Rev. 3: December 2003 - Address change
Rev. 2: March 1999 - Address change
Rev. 1: September 1996

General Terms of Business

Exept Software AG
Talstr. 3
74321 Bietigheim-Bissingen
Deutschland
Tel.: +49-7142-91948-0
Fax: +49-7142-91948-44
Email: info@exept.de

§ 1 Conditions

(1)
The deliveries, services, and offers of eXept Software AG, hereafter referred to as eXept, ensue exclusively upon these general terms of business.
(2)
Deviations from these general terms of business are only effective when they have been confirmed in writing by eXept.
(3)
In commercial business the general terms of business are also valid for all future business relationships, also in the case where they are not expressly agreed upon.
(4)
Additionally the regulations in the software licensing agreement and maintenance conditions are valid.

§ 2 Contracts and Offers

(1)
Offers made in prospects, advertisements, etc., including quoted prices, are subject to alteration and availability and are not binding. eXept will be bound for thirty (30) calendar days on especially elaborated offers.
(2)
The customer is bound to his order for four weeks. To be legally binding orders are required to have a written confirmation from eXept. If eXept does not decline the acceptance of the commission inside of four weeks of its receipt, then it is considered to be confirmed.
(3)
eXept employees and contractual partners are not empowered to make verbal agreements or assurances about qualities or features. Such verbal agreements or assurances become effective only if they are confirmed in writing by eXept.

§ 3 Prices and Price Changes

(1)
The relevant prices are indicated in the confirmation instructions plus the respective legitimate value added tax.
(2)
If the delivery results later than four months after conclusion of the contract, later than two months for corporate entities or merchants for whom the contract is a part of the activity of their commercial trade, then eXept is permitted to demand an appropriate increase in the purchase price under the prerequisite that the relevant situation for determining the purchase price at the time of the conclusion of the contract, especially the delivery price of the producer, importer or for example the cost of the material, salaries, and hourly rates, etc. has changed. The customer has the right to withdraw or cancel the contract within fourteen (14) days of the announcement of the increase in the price as long as the price increase amounts to more than five percent (5%) of the sum of the commission. The cancellation is to ensue in writing. The work done up to the cancellation shall be paid under the corresponding contractual agreement. In the case the right to cancellation is exercised, then compensation claims are out of the question.

§ 4 Terms of Delivery

(1)
eXept shall take great pains to meet punctually the agreed or designated delivery date.
(2)
If this date shall be exceeded by more than four (4) weeks, then the customer has the right to set an appropriate respite. This respite must be at least two (2) weeks. The respite begins with the reception by eXept of the setting of the respite.
(3)
If it does not come to a settlement of a new delivery date or eXept does not keep the new delivery date, then the customer can cancel the contract after the termination of the respite. The cancellation is to be made in writing.
(4)
Damage claims are excluded so long as this damage is not caused by deliberate, willful, or truly negligent action on the part of eXept or its legal representative.

§ 5 Transportation and associated Risks

(1)
All risks transfer to the customer as soon as the shipment is handed over to those therefor responsible or has left the business premises of eXept for reason of transport. If the transport is delayed by customer request, then all risks transfer to the customer at the point in time that the transport readiness is reported to the customer.
(2)
This is also valid in the case that eXept assumes the costs of shipment.
(3)
Complaints due to damage in transit are to be claimed immediately by the customer against the shipping company inside of the therefor foreseen respite.
(4)
At the request of the customer deliveries shall be insured in his name and at his cost.
(5)
For shipments from the customer to eXept the customer carries every risk, especially the risks in transit, until the goods arrive at eXept.

§ 6 Product Guarantees

(1)
eXept ensures that the quality of the contractual product with respect to being error free is of the respective state of the art for a product of said type.
(2)
The guarantee is valid for six (6) months. This period begins with the date of delivery.
(3)
Obvious failures are to be registered with eXept in writing within two weeks of the date of delivery. Other failures must be registered with eXept in writing within two weeks of the perception of the failure. In the case of a violation of the duty of examination and reproof, then the guarantee is considered to have expired.
(4)
Incomplete deliveries must be either kept in the state, in which they were at the point in time of the determination of the deficiency, so that they can be readily inspected by eXept, or, on demand, promptly sent to eXept in the original packaging with an indication of the objections and if necessary, the used equipment type.
(5)
The rectification of defects results by repair. If a failure cannot be repaired or if additional repairs are unacceptable for the customer, the customer can demand either a fee reduction or contract annulment.
(6)
Liability for normal wear and tear or for damage which occurs through improper use, is excluded.

§ 7 Limitation of Liability

(1)
For damage due to defect of title and missing promised qualities eXept has unlimited liability.
(2)
Damage claims due to an active violation of the requirements, fault at the closing of the contract, or unlawful action against eXept or its legal representative is excluded so long as this damage is not caused by deliberate, willful, or truly negligent action on the part of eXept or its legal representative. This does not include claims in tort due to promised qualities or functionality, which should protect the customer against the risk of successive or following damages. See ß2 paragraph 3 of these general terms of business. If the user is a legal entity, for whom the contract is used to operate its business, then the claims of replacement of such damages is limited to those which are normally calculated to occur within the framework of the respective contractual circumstances.
(3)
All claims, whether customer guarantee or due to a violation of contractual duty, lapse six (6) months after acceptance. This is irregardless upon which underlying legal justification the claim is based.

§ 8 Ownership

(1)
eXept reserves the ownership of the product until payment of the debts due. This reservation of the ownership exists until the complete payment of all outstanding debts occurred by the customer with respect to said product, either at the time of delivery or subsequently occurring debts, which occur due to repairs or other services obtained by the customer.
(2)
If the customer is a legal or corporate entity or merchant, for whom the contract is used to operate its business, then this reservation of the ownership exists until the complete payment of all outstanding debts occurred by the customer, which eXept has against the customer, including the complete balance of claims in the current account.
(3)
During the period of the reservation of the ownership the customer has the right to possess and employ the product as long as he fulfills his commitments on time with respect to the reservation of ownership, and with respect to the business relationship.
(4)
If the customer has stored data on the media which was delivered by eXept and is still owned by eXept, then the ownership by eXept remains intact.
(5)
In the case of attempted access by third parties, especially bailiffs, to the ownership-reserved product the customer shall allude to the ownership by eXept and immediately notify eXept.

§ 9 Payment

(1)
Bills from eXept are payable inside of ten (10) days net without any reduction.
(2)
eXept expressly reserves the right to reject checks or bills of exchange. The acceptance always results only through fulfillment. Expenses due to exchange rates and costs shall be charged to the customer and are due immediately.
(3)
eXept has the right, in spite of differently worded terms of repayment of the customer, to credit payments first of all to the customerís older debts. In this case eXept shall inform the customer of the resulting accounting. If costs and interest arise, then eXept has the right, first of all to charge the payment against the costs, then against the interest, and finally against the actual payment.
(4)
Against the demands of eXept the customer may set off only undisputed or legally valid, assessed claims. The customer can assert a lien only as far as it is based on the same contractual relationship. If the customer fails to meet the payment date, eXept reserves the right to charge default interest to the amount of four percent (4%) above the current discount rate of the Deutsche Bundesbank, unless eXept can prove higher default interest or the customer a smaller burden.
(5)
The regulations of the consumers credit law are unaffected by this arrangement.

§ 10 Customer Data

(1)
eXept has the right to process and to store the data, which was received on hand of the business relationship or in connection therewith, in accordance with the respective data protection law.

§ 11 Governing Law, Place of Performance and Venue, partial Invalidity

(1)
For all legal relationships between eXept and its contractual partners the governing law is exclusively the right of the Federal Republic of Germany.
(2)
The venue for reciprocal obligations is Bietigheim-Bissingen, Germany. The venue for all contentiousness is Bietigheim-Bissingen, Germany inasmuch as an agreement on the venue can be effectively arranged.
(3)
If any provision of this agreement is held invalid or unenforceable for any reason, such invalidity shall not affect the validity of the remaining provisions of this agreement, and the parties will substitute for the invalid provisions a valid provision which most closely approximates the intent and economic effect of the invalid provision.
(4)
As far as these conditions hold no deviating regulations, then the statutory provisions are in effect.

January 2012

Trademarks

eXept is a registered trademark of eXept Software AG.