Terms and Conditions

THE END-USER LICENSE AGREEMENT FOR PAFnow LICENSING CUSTOMERS CAN BE FOUND BELOW.

Software Evaluation License Agreement

(APPLIES TO ‘4-WEEK TRIAL’-CUSTOMERS DURING SOFTWARE EVALUATION; UPON LICENSING PAFnow THE END-USER LICENSE AGREEMENT BELOW APPLIES)

I. INTRODUCTION

Please read this Software Evaluation License Agreement carefully before clicking the ‘I Agree’-button, downloading or using the Evaluation Software.

By clicking the ‘I Agree’-button, downloading or using the Evaluation-Software, you are agreeing to be bound by the terms and conditions of this Software Evaluation License Agreement.

This Agreement is a legal agreement between you (either an individual or a single entity; as ‘you’ or ‘Customer’) and Process Analytics Factory GmbH (‘PAF’) and it governs your use of the Evaluation-Software made available to you by PAF.

By clicking ‘I Agree’, or by taking any step to download, install or use the Evaluation-Software, you (a) represent that you are of the legal age of majority in your country, and you have the full right and authority to enter into, execute, and perform your obligations under this Agreement and (b) you agree to be bound by the terms of this Software Evaluation License Agreement.

If you do not agree to the terms of this Software Evaluation License Agreement, do not click on the ‘I Agree’-button and do not download or use the Evaluation-Software.

II. DEFINITIONS

Agreement’ means this Software Evaluation License Agreement (Evaluation).

Software’ means the PAFnow Companion software, in object code format, including all subsequent modifications, updates, upgrades, new versions and releases, which shall form part of the software products, and related documentation.

III. LICENSE TO USE THE SOFTWARE

  1. PAF grants you a temporary, non-exclusive, non-transferable license to use the Software free of charge subject to the terms and conditions set forth in this Agreement (the “License”)
  2. The License shall terminate upon the earliest of the following:
  • 1 [one] month from the date you received the Software; or
  • the date on which you and your staff cease using the Software; or
  • until the time limit embedded in the Software takes effect, at which point the Software will no longer work.
  1. You shall only use the Software for demonstration purposes at your personal or business premises. You shall not use the Software for commercial purposes.
  2. Copies of the Software created or transferred pursuant to this Agreement are licensed, not sold, and you receive no title to or ownership of any copy or of the Software itself. Furthermore, you receive no rights to the Software other than those specifically set forth in Section III.1 above. Without limiting the generality of the foregoing, you shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software; (b) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code.

IV. USE OF THE SOFTWARE

  1. You agree that:
  • You will keep the Software confidential;
  • You will not copy the Software or allow anyone else to copy it;
  • You will not make the Software available to anyone else.
  1. You agree that you have accepted the use of this Software on the basis of this license.
  2. You shall indemnify and hold harmless PAF, its directors, officers, employees, shareholders, parent, subsidiaries, affiliates and agents from and against all losses, expenses, damages and costs, including reasonable attorney’s fees, resulting from your violation of this Agreement, or your negligent, improper or illegal use of the Software.

V. CONDITIONS OF LICENSE

  1. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR RELIANCE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST OR ANTICIPATED REVENUES OR PROFITS) ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE SOFTWARE, ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, INFRINGEMENT OF THIRD PARTY RIGHTS, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  2. THE SOFTWARE IS PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, AND ANY USE OF THE SOFTWARE IS AT YOUR OWN RISK. PAF DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. PAF DOES NOT AND WILL NOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY USING THE SOFTWARE. FURTHER, PAF DOES NOT WARRANT THAT THE SOFTWARE: (a) IS DEFECT OR ERROR FREE; (b) COMPLIES WITH GENERALLY ACCEPTED INDUSTRY STANDARDS; OR (c) IS FREE OF VIRUSES, TROJANS, MALWARE OR OTHER HARMFUL CODE.
  3. PAF shall defend and indemnify you or your Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging direct infringement of any patent, copyright, trade secret, or other intellectual property right by the Software. PAF’s obligations set forth in this Section V.3 do not apply to the extent that an Indemnified Claim arises out of: (a) your breach of this Agreement; (b) revisions to the Application made without PAF’s written consent; or (c) use of the Application in combination with hardware or software not provided by PAF. PAF’s obligations pursuant to this section will be excused to the extent that your or any of your Associates’ failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. PAF will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided you will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that you admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.
  4. If the Software should become the subject of any claim, or if a court judgment is made that the Software does infringe, or if the use of the Software is restricted, PAF terminate the License and/or deactivate the Software.
  5. This section states your entire remedy with respect to any intellectual property right infringement by the Software.

VI. APPLICABLE LAW AND PLACE OF JURISDICTION

This Agreement shall be governed by, and interpreted in accordance with German law, without the provisions on the conflict of laws. The UN Convention on the International Sale of Goods (CSIG) shall not apply. The courts of Frankfurt am Main, Germany, shall be the exclusive place of jurisdiction.

VII. MISCELLANEOUS

  1. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter. This Agreement may not be amended except through a written agreement by authorized representatives of each party. Where a notice can be sent in text form, such text form shall suffice, whereby it is understood that such notices may also sent in writing. It is agreed that a facsimile or copy of a letter that is sent by electronic transmission (e.g. a .pdf-file sent by mail) shall fulfil a requirement of a writing, as long as it is properly signed by the issuing Party.
  2. The official version of this Agreement is in English language.
  3. The provisions of order forms or general terms and conditions of the Parties shall not apply.
  4. If and to the extent that any provision of this Agreement is held to be illegal or void, such provision shall be given no effect and shall be deemed not to be included in this Agreement but without invalidating any of the remaining provisions of this Agreement. In this event the Parties will agree upon a valid substitute provision or provisions which shall be as close as possible to the original provision and shall re-establish an appropriate balance of the commercial interests of both Parties.
  5. No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
  6. You acknowledge, agree and reaffirm your obligations as set forth in that certain Mutual Non-Disclosure Agreement between you and PAF.

VIII. CONTACT INFORMATION

If you have any questions about this Agreement, please contact us using the subject ‘Software Evaluation’, either in written form to Process Analytics Factory GmbH; Kasinostraße 60, 64293 Darmstadt – Hesse, Germany or via mail to [info@pafnow.com] or by telephone (+49 6151 850 7741).

End-User License Agreement

(APPLIES TO PAFnow LICENSING CUSTOMERS)

I. INTRODUCTION

Please read this End-User License Agreement carefully before clicking the ‘I Agree’-button, downloading or using the PAFnow Companion (‘Application’ or ‘Software’).

By clicking the ‘I Agree’-button, downloading or using the Application, you are agreeing to be bound by the terms and conditions of this Agreement which both grants you rights and imposes obligations upon you.

This Agreement is a legal agreement between you (either an individual or a single entity; as ‘you’ or ‘Customer’) and Process Analytics Factory GmbH (‘PAF’) and it governs your use of the Application made available to you by PAF. By clicking ‘I Agree’, or by taking any step to install or use the Application, you (a) represent that you are of the legal age of majority in your country, and you have the full right and authority to enter into, execute, and perform your obligations under this Agreement and (b) you agree to be bound by the terms of this Agreement.

If you do not agree to the terms of this Agreement, do not click on the ‘I Agree’-button and do not download or use the Application.

For clarity and avoidance of doubt, the Application is licensed, not sold, to you by PAF for use strictly in accordance with the terms of this Agreement.

II. OWNERSHIP

  1. PAF retains all right, title, and interest in and to the Application, including, but not limited to, any images, photographs, animation, video, audio, music, text and other materials incorporated therein. The structure, organization and code of the Application are valuable trade secrets of PAF. You recognize that the Application is protected by copyright and other intellectual property laws and international treaties.

  2. You agree that, as between PAF and you, PAF owns all right, title and interest, including without limitation all copyright, patent, trademark, trade secret and other intellectual property and proprietary rights, in and to the Software.

  3. Except as expressly set forth in this Agreement, this Agreement does not grant you any rights in the Software and does not include any rights of title or ownership of any copy or of the Software itself. You acknowledge that you have no right to have access to the Software in source code form, except as expressly set forth otherwise in this Agreement and that you shall not use the Software except as specified in this Agreement.

  4. PAF hereby expressly reserves all right, title and interest in and to the Software not expressly licensed to you under this Agreement.

III. LICENSE OF USE

  1. PAF grants you, subject to these terms and conditions, a revocable, non-exclusive, non-transferable, non-sublicensable, limited license to download, install and use the Application in machine readable (object code) solely for your personal use, provided that you comply with the restrictions set forth in this Agreement, during the term set forth in Section IX.

  2. If PAF provides you with a rectified version or a new version of the Software, e.g., in the form of updates or releases, then your rights according to this Agreement with regard to the old Software shall expire, even without an express demand for return by PAF, as soon as you productively use the new Software.

  3. If you or PAF terminates this Agreement, then the license granted herein shall terminate.

IV. RESTRICTION OF USE

  1. You shall under no circumstances transfer, sublicense or re-sell the Software to any third party in any manner. You shall use the Application strictly in accordance with the terms of this Agreement.

  2. You shall not do, or permit any other person or entity to do any of the following:

(a) decompile, except you are entitled to do so by law (according to § 69 e UrhG), reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Application; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Application; (c) violate any applicable laws, rules and regulations in connection with your access or use of the Application; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of PAF; (e) use the Application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (f) make the Application available over a network or other environment permitting access or use by multiple devices or users at the same time; (g) use the Application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any service, product or software offered by PAF; (h) use any proprietary information or interfaces of PAF in the design, manufacture, licensing or distribution of any application, accessories or devices for use with the Application; (i) use the trademarks applied to or embodied in the Software; (j) use the Software or any portion thereof after any expiration, termination or cancellation of this Agreement or any license granted hereunder; (k) rent, lease, lend, sell transfer redistribute, or sublicense the Software; (l) make or have made any copies of the Software or any portion thereof - except the necessary number of copies of the Software for backup and archiving purposes ; (m) sublicense, disclose or transfer any copy of the Software in whole or in part, to any third party.

V. LICENSE FEES

In consideration of and as a condition to the license granted to you hereunder and the performance of PAF´s obligations hereunder, you shall pay to PAF the fees specified by PAF invoice, which shall be due and payable in accordance with the quotation, which is attached hereto and incorporated herein.

VI. UPDATES, UPGRADES

  1. From time to time, PAF may automatically update, upgrade or otherwise modify the Software, including but not limited to, for purposes of improvement of functions, error correction, enhancement of security, and other updates and upgrades at such time as you interact with PAF’s or third parties' servers, or otherwise. Such updates, upgrades or other modifications may delete or change the nature of features or other aspects of the Software, including but not limited to, functions you may rely upon. You acknowledge and agree that such activities may occur at PAF´s sole discretion and that PAF may condition continued use of the Software upon your complete installation or acceptance of such update, upgrade or modifications.

  2. Planned updates, upgrades or modifications will be announced on our website, at least 1 [one] day prior to availability, with further information.

  3. Any such updates, upgrades or other modifications shall be deemed to be, and shall constitute part of, the Software for the purposes of this Agreement. By acceptance of this Agreement, you consent to such updates, upgrades or other modifications. The terms of this Agreement will govern any updates, upgrades or other modifications provided by PAF, unless such updates, upgrades or other modifications are accompanied by a separate license agreement in which case the terms of that license agreement will govern.

VII. INTERNET CONNECTIVITY

  1. The Application may cause your device, without notice, to automatically connect to the Internet and to communicate with a PAF website or PAF domain for purposes such as license validation and providing you with additional information, features, or functionality.

  2. Whenever the Application makes an Internet connection and communicates with a PAF website, whether automatically or due to explicit user request, the Privacy Policy shall apply.

  3. The Application may cause your device, without additional notice, to automatically connect to the Internet (intermittently or on a regular basis) to (a) check for updates that are available for download to and installation on the device and (b) notify PAF of the results of installation attempts.

  4. The Application may require Customer to (a) obtain a PAFnow Account, (b) activate or reactivate the Software, (c) validate the license. Such requirement may cause your device to connect to the Internet without notice on install, on launch, and on a regular basis thereafter. Software or Customer may also receive information from PAF related to your license or subscription. PAF may use such information to detect or prevent fraudulent or unauthorized use not in accordance with a valid license or subscription. Failure to activate or register the Application, validate the subscription or license, or a determination by PAF of fraudulent or unauthorized use of the Application may result in reduced functionality, inoperability of the Application, or a termination or suspension of the subscription or license.

VIII. YOUR PAFnow ACCOUNT

You may need to create a PAFnow Account (‘Account’) in order to use some of our Software. You are responsible for any activity associated with your Account user mail-address and password. If you believe your Account is or may be compromised, you must notify us and change your password immediately.

IX. TERMINATION OF USE

  1. This Agreement is effective upon your acceptance of the Agreement, or upon downloading, installing, accessing, or using the PAFnow Companion, whichever is earlier.

  2. This Agreement shall remain in effect until terminated by you or PAF. PAF may, in its sole discretion, at any time and for any or no reason, suspend or terminate this Agreement with prior written notice (email sufficient) of one week and a pro rata refund of any license fees that you have paid in advance. This Agreement shall terminate immediately, without prior notice from PAF, in the event that you fail to comply with the provisions under this Agreement, in which case no refund will be paid to you. You may terminate this Agreement by giving us notice in writing (email sufficient) and by deleting, destroying or returning all copies of the Software in your possession and any registration codes that may have been issued to you, in which case no refund will be paid to you.

  3. Upon any termination or expiration of the Agreement for any reason, you agree to uninstall the Application and to delete, destroy or return all copies of Software, Documentation, license keys and provide written verification of such destruction to PAF, immediately. Termination of this Agreement or any Software license granted under this Agreement will not affect your obligation to pay for products shipped or licenses granted prior to the termination, which amounts shall immediately be payable at the date of termination.

  4. Termination of this Agreement by any Party will not limit any of PAF’s rights or remedies at law or in equity in case of breach by you (during the term of this Agreement) of any of your obligations under the present Agreement.

  5. The following provisions of this Agreement shall survive termination of the Agreement: Section II, IV, V, X, XI, XII, XIII, XVI, XXI.

X. LIMITATION OF LIABILITY

  1. PAF shall be liable without restriction in accordance with the German statutory provisions regarding compensation for damages in case such damages were caused by intentional or gross negligent conduct of PAF or its agents. The same applies to personal injury and damages according to the German Product Liability Act or comparable laws in other jurisdictions that may apply.

  2. Otherwise the liability of PAF for damage claims – for whatever legal reason – is limited in accordance with the following provisions, unless otherwise provided by an explicit guarantee of PAF:

  3. For damages caused by slight negligence, PAF is only liable insofar as they cause damage to cardinal contractual obligations (cardinal obligations). Cardinal obligations are those contractual obligations which must be fulfilled in order to ensure orderly implementation of this Agreement and in the observance of which you may trust. To the extent PAF is responsible for simple negligence, the liability of PAF is limited to losses which are typically foreseeable. Integrity of Data; Data loss
    You agree that you are the best judge of the value and importance of the data held on your computer system, and you will be solely responsible for:

  • Instituting and operating all necessary back-up procedures, for your own benefit, to ensure that data integrity can be maintained in the event of loss of data for any reason;
  • Taking out any insurance policy or other financial cover for loss or damage which may arise from loss of data for any reason.
  1. PAF is free to plead contributory negligence of you.

  2. The above liability restrictions shall also apply to PAFs officers, directors, employees, representatives and agents.

XI. INDEMNIFICATION

You agree to defend, indemnify and hold harmless PAF, and its officers, directors, employees, representatives and agents (‘Indemnified Party(ies)’), against any claim, lawsuit, action, liability, losses and expenses, liens, penalties, including but not limited to reasonable attorneys' fees (collectively, the ‘Claims’) arising out of or relating to your use of the Software or based upon or related to: (a) content, videos or other materials created, processed, posted, reproduced or distributed to the Internet, your Intranet, computer networks, mobile devices or any other media or formats using in any manner the Software; (b) your negligence or willful misconduct; or (c) a breach by you of your obligations, representations or warranties hereunder. You shall pay all settlements entered into and damages awarded against you and/or PAF and all cost and expenses incurred (including reasonable attorneys' fees) to the extent based on such Claims.

XII. PAF’s WARRANTIES

Subject to the provisions of this Section, PAF represents and warrants that it is the owner of the Application and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the intellectual property rights to the Application set forth in this Agreement without the further consent of any third party. PAF’s representations and warranties in the preceding sentence do not apply to the extent that the infringement arises out of any of the conditions listed in Subsections XI(a), (b) and (c). In the event of a breach of the warranty in this Subsection XII.1, PAF, at its own expense, will promptly take the following actions: (i) secure for you the right to continue using the Application; (ii) replace or modify the Application to make it noninfringing, provided such modification or replacement will not materially degrade any functionality listed in the specifications; or (iii) refund 75% of the licensee fee paid for the Application for every month remaining in the Term, in which case PAF may terminate any or all of your licenses to the Application granted in this Agreement and require return or destruction of copies thereof. In conjunction with your right to terminate for breach where applicable and the provisions of Section XI, the preceding sentence states PAF’s sole obligation and liability, and your sole remedy, for breach of the warranty in this XII.1 and for potential or actual intellectual property infringement by the Application

  1. PAF represents and warrants to you that the Software is a complete, accurate and up-to-date copy of the current release at the time of your download.

  2. The Software is designed to conform to the specification applicable at the time of your order. However, PAF does not warrant that the Software will work without interruption.

  3. Warranty in the case of material defects

PAF warrants that the Software contains no material defects. PAF may rectify a defect in its sole discretion by elimination of the defect, circumvention of the defect or by a new delivery of the Application. You shall cooperate in as necessary with regards to rectification of a defect by complying with instructions from PAF by telephone, in writing or by electronic means.

Defects must be documented by you in a comprehensible manner and notified to PAF, if possible, in writing (email) and without delay after their discovery.

You are not entitled to rectify faults yourself and to demand reimbursement of the accordingly necessary expenditure.

  1. Claims arising from warranty due to defects shall cease to be applicable if such claims are due to the alteration of the Software by you.

  2. The above constitute the only warranties provided by PAF in respect of the Software. The obligations and liabilities of PAF set out in this Agreement replace all implied guarantees and warranties, including without limitation, any warranty of satisfactory quality or fitness for a particular purpose which is your responsibility to determine.

  3. You acknowledge that:

  • The Software has not been produced to meet your individual specifications;
  • The Software cannot be tested in advance in every possible operating combination and environment;
  • It is not possible to produce Software known to be error-free in all circumstances.
  1. PAF recommends, and will provide if so requested, training, support and additional maintenance for the Software in accordance to the quotation.

XIII. DEFENSE OF THE SOFTWARE

  1. PAF shall defend and indemnify you or your Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging direct infringement of any patent, copyright, trade secret, or other intellectual property right by the Application. PAF’s obligations set forth in this Section XIII do not apply to the extent that an Indemnified Claim arises out of: (a) your breach of this Agreement; (b) revisions to the Application made without PAF’s written consent; (c) your failure to incorporate Upgrades that would have avoided the alleged infringement, provided PAF offered such Upgrades without charges not otherwise required pursuant to this Agreement; (d) PAF’s modification of Application in compliance with specifications provided by you; or (e) use of the Application in combination with hardware or software not provided by PAF. In the event of an Indemnified Claim, PAF may exercise the remedies in Subsections XII.1 above, including without limitation its right therein to terminate licenses and require return of the Application. (As used in this Article XIII, your “Associates” are your officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
  2. Litigation & Additional Terms. PAF’s obligations pursuant to Section XIII.1 above will be excused to the extent that your or any of your Associates’ failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. PAF will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided you will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.
  3. The costs and fees of any separate legal representation for you shall be your sole responsibility.
  4. IN NO CIRCUMSTANCES WILL PAF BE LIABLE FOR ANY COSTS OR EXPENSES INCURRED BY YOU WITHOUT PAF’S PRIOR WRITTEN AUTHORISATION. THE FOREGOING STATES THE ENTIRE REMEDY OF THE LICENSEE IN RESPECT OF ANY INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT BY THE SOFTWARE.

XIV. FORCE MAJEURE

Each party shall have no liability to the other party for any delay in performance of the Agreement to the extent that such delay is due to any events outside the relevant party’s reasonable control, including but not limited to acts of God, war, flood, fire, pandemic, epidemic, labor disputes, supplier and/or subcontractor delays or defaults, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, governmental actions, material shortages and any other similar events. If either party is affected by any such event then time for performance shall be extended for a period equal to the period that such event or events delayed such performance, however for a maximum of 3 (three) months, upon expiry of which each party shall have the right to terminate this agreement with immediate effect.

XV. TECHNICAL SUPPORT

PAF may provide maintenance services related to the use and operation of the Software, including technical support, as well as software maintenance. PAF provides the following services exclusively for the Software set forth in this Agreement, provided that you do not make any modifications to the Software and that the Software is used in the configuration, and system environment recommended by PAF. Products or software provided to you by third parties are not part of PAFs’ maintenance services. Prior to obtaining such support, it is your responsibility to back up all your existing data, software and programs. We may cease or suspend offering technical support with respect to a particular product at any time.

XVI. TRADE SECRETS AND CONFIDENTIALITY

  1. “Confidential Information” refers to the following one party to this Agreement (“Discloser”) discloses to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within seven (7) business days; (c) the non-public features and functions of the Software, for which PAF is Discloser; and (d) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser. Recipient is on notice that the Confidential Information may include Discloser’s valuable trade secrets.
  2. Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article XVI; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.
  3. Recipient agrees that breach of this Article XVI would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
  4. With respect to each item of Confidential Information, the obligations of this Section will terminate 5 years after the date of disclosure; provided that such obligations related to Confidential Information constituting Discloser’s trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
  5. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.

XVII. SEVERABILITY

To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances or the validity or enforcement of this Agreement.

XVIII. ASSIGNMENT

Neither this Agreement nor any rights, licenses or obligations under this Agreement may be assigned by you to any third party, including but not limited to your parents, subsidiary and affiliates, without our prior written approval.

XIX. ENTIRE AGREEMENT

This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and, together with any previously executed Non-Disclosure Agreement between the Parties, constitutes the entire agreement between the parties relating to the subject matter of this Agreement. However, the obligations of the parties under any pre-existing non- disclosure agreement (if any) shall remain in full force and effect. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated in this Agreement.

XX. AMENDMENTS TO THIS AGREEMENT

  1. PAF reserves the right, at its sole discretion, to modify or replace this Agreement at any time. If a revision is material, we will provide at least fifteen (15) days' notice prior to any new terms taking effect

No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.

XXI. JURISDICTION AND LAW

This Agreement shall be governed by and construed in accordance with the laws of Germany and each party submits to the exclusive jurisdiction of the competent courts of Frankfurt am Main, Germany.

XXII. CONTACT INFORMATION

If you have any questions about this Agreement, please contact us using the subject ‘EULA’, either in written form to Process Analytics Factory GmbH; Kasinostraße 60, 64293 Darmstadt – Hesse, Germany or via email to [info@pafnow.com] or by telephone (+49 6151 850 7741).

PAFnow EULA 09/2020 V.0.3