1.1. This End User License Agreement (hereinafter “Agreement”) is a legal agreement between you, the licensee (hereinafter “you”) and Lesspain Gesellschaft für Softwareentwicklung mbH & Co. KG, its parents subsidiaries affiliates and third party licensors (hereinafter “Less Pain”, “we” or “us”), the licensor of the software KYNO and any materials related thereto, including but not limited to printed or online documentation, updates, upgrades or other modifications provided to you by Less Pain (hereinafter collectively “Software”).
1.2. By downloading, installing, copying or using the Software on any computer, you agree to be bound by the terms of this Agreement, which both grants you rights and imposes obligations upon you. If you disagree with any of the terms and conditions of this Agreement then you must not install, copy and/or use the Software.
1.3. Less Pain may add to, change, or remove any part, term, or condition of this Agreement, including but not limited to as it applies to the Software at any time without prior notice or liability to you. Any such additions, changes, or removals posted at https://lesspain.software/kyno/eula/ shall apply as soon as they are posted. By continuing to use the Software after so posted, you are indicating your acceptance thereto. If you do not agree to the terms of this Agreement, as updated from time to time, Less Pain is unwilling to license the Software to you and has the right to termination of this Agreement, and you must contact Less Pain for information on returning your Software.
2.1. The Software including, but not limited to, any images, photographs, animation, video, audio, music, text and other materials incorporated therein is owned by Less Pain. The structure, organization and code of the Software are valuable trade secrets of Less Pain. The Software is protected by copyright and other intellectual property laws and international treaties.
2.2. You agree that, as between Less Pain and you, Less Pain 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.
2.3. Except as expressly set forth in this Agreement, this Agreement does not grant you any intellectual property rights in the Software, and does not include any rights of ownership. 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 (see section THIRD PARTY SOFTWARE) and that you cannot and must not use the Software except as specified in this Agreement.
3.1. Just for the avoidance of doubt, the Software is licensed, not sold.
3.2. Subject to the terms and conditions of this Agreement, Less Pain hereby grants you a limited, non-exclusive, non-transferable and non-sublicenseable license to install and operate the Software in machine readable (object code) form on one (1) central processing unit (“computer”) that you own or that you are licensed or legally entitled to use.
4.1. You may transfer the Software from one to another of your computers by clearing the registration details and removing the Software from your old computer before installing it on your new one provided that you uninstall the Software from your old computer entirely and that you retain no copies of the Software, including any and all copies, components, parts, media, materials, versions, updates and upgrades of the Software on your old computer.
4.2. If you are an individual and are the main user of more than one computer you may copy the software and install a single user registration code onto no more than two (2) computers providing that:
4.3. you shall permit us or our authorised representatives reasonable access to your premises and records to verify your compliance with this license agreement, at suitable times during business hours upon giving reasonable notice to you or your reseller.
You are permitted to make one (1) back-up or archival copy of the Software in machine readable (object code) form to support your authorized use under this Agreement. Such copy shall be labeled "Copy for Back-Up Only". All copies are the sole property of Less Pain.
If you download or install a free-of-charge trial version of the Software, subject to your compliance with the terms and conditions of this Agreement, we grant you, solely for evaluation purposes, a limited non-exclusive, non-transferable and non-sublicenseable license for a limited trial period (as specified by Less Pain) commencing on the date you first install the Software on any computer, to use one (1) copy of the Software to evaluate the Software, and only for your personal, noncommercial use on a single computer or mobile device, as applicable. The sole purpose of this evaluation is to assess the Software’s suitability for your purposes and requirements. You acknowledge and agree that certain features of the Software which are normally available may be disabled in certain trial versions of the Software and that the Software may stop functioning altogether upon expiry of the trial period.
7.1. This Agreement does not allow you to use the Software on any computer that you do not own or that you are not licensed or that you are not otherwise legally entitled to use.
7.2. This Agreement does not allow you to transfer, sublicense or re-sell the Software to any third party in any manner.
7.3. You hereby agree that you may not and will not do, or permit any other person or entity to do, any of the following:
Notwithstanding the Software license granted to you under this Agreement, you acknowledge that the Software may include third party software that may be subject to separate terms and conditions deviating from this Agreement. Certain such third party software may be governed by free and/or open source software licenses (hereinafter “FOSS”). As regards open source software, any software approved by the Open Source Initiative or any substantially similar organization to be such open source software requires that the distributor make the software available in source code format. A list of the applicable open source software components included in this Software (“Open Source Software Component”), and the applicable terms and conditions governing its use, is posted at http://lesspain.software/kyno/open-source-software/. Such terms and conditions may be changed by the applicable third party at any time. To the extent required by the licenses covering Open Source Software Component, the terms of such licenses will apply in lieu of the terms of this Agreement. To the extent the terms of the licenses applicable to Open Source Software Component prohibit any of the restrictions under this Agreement with respect to any Open Source Software Component, such restrictions will not apply to such Open Source Software Component. To the extent the terms of the licenses applicable to Open Source Software Component require Less Pain to make an offer to provide source code in connection with the Software, such offer is hereby made.
Less Pain hereby expressly reserves all right, title and interest in and to the Software not expressly licensed to you under this Agreement.
Less Pain shall electronically deliver to you one (1) copy of the Software for use by you in exercising your rights under the licenses granted under this present Agreement. Delivery shall be deemed complete upon successful completion of the electronic download. Unless otherwise agreed between the parties in a separate written agreement, Less Pain shall have no obligation to install or configure the Software for you, or on behalf of you, on your computer. The Software shall be deemed accepted upon delivery. You are solely responsible for installing and operating the Software on your computer in accordance with the information and/or instructions provided by Less Pain.
Any registration keys or other codes that we supply to you for use of the Software are confidential and personal to you. Any computer files created by the Software and containing details of your registration key are confidential and may not be copied or revealed to anyone else. You agree to keep all such codes confidential and to not make copies or permit their use other than under the conditions permitted by this Agreement. If you intentionally reveal or allow these codes to be used by anyone who is not entitled to use them then you will be liable for any and all losses that we incur as a result.
In consideration of and as a condition to the licenses granted to you hereunder and the performance of Less Pain's obligations hereunder, you shall pay to Less Pain the fees specified by Less Pain, which shall be due and payable prior to any delivery of the Software, unless Less Pain has agreed to alternative payment and invoicing terms in writing.
13.1. All amounts payable hereunder shall exclude all applicable sales, use and other similar taxes and similar charges. you will be responsible for payment of all such taxes (other than taxes based on Less Pain's income), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the delivery of related services.
13.2. You will make all payments required hereunder to Less Pain free and clear of, and without reduction for, any withholding taxes. Any taxes imposed on any payments hereunder to Less Pain will be your sole responsibility, and you will, upon Less Pain's request, provide Less Pain with official receipts issued by the appropriate taxing authority, or such other evidence as Less Pain may reasonably request, to establish that such taxes have been paid.
14.1. The term of this Agreement, and the term of the license granted by this Agreement, shall commence upon completion of your download of the Software.
14.2. We may terminate this Agreement at any time at our sole discretion by giving you notice in writing (e-mail sufficient) and pro rata refunding any license fees that you have paid for the software. We may immediately terminate the Agreement by giving you notice in writing if we believe you have breached any of the terms of this Agreement and no refund will be due to you.
14.3. You may terminate the Agreement by giving us notice in writing (e-mail 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 and no refund will be due to you.
14.4. Upon termination for any reason, all rights granted to you under this license agreement shall cease and you must immediately delete, remove and/or return the Software from all computer equipment and immediately destroy or return it to us (in the case of destruction, you may be required to certify such destruction to us).
14.5. Any of your obligations under this license agreement not to reveal or distribute confidential or copyright information, including but not limited to registration codes or trade secrets related to the internal workings of the software, shall survive termination of this license agreement.
15.1. Less Pain 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 Less Pain 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.
15.2. Otherwise, the liability of Less Pain for damage claims – for whatever legal reason – is limited in accordance with the following provisions, unless otherwise provided by an explicit guarantee of Less Pain:
15.3. The above liability restrictions shall also apply to agents of the Less Pain
You agree to defend, indemnify and hold harmless Less Pain, 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 Less Pain and all cost and expenses incurred (including reasonable attorneys' fees) to the extent based on such Claims.
You shall keep complete and accurate records relating to your use of the Software pursuant to this Agreement during the term and for two (2) years after expiration or termination of this Agreement ("Audit Period"). During the Audit Period, Less Pain shall have the right, upon reasonable prior notice to you and during your normal business hours, to audit your use of the Software and to inspect your records and networks and computer systems related to any copies of the Software, or portions thereof, made by you.
You agree that Licensor may collect and use technical data and related information, including but not limited to technical information and statistics about your computer, system and application software, and peripherals, that is gathered periodically in the background by the Software in an anonymous manner to facilitate the provision of software updates, product support, and other services to you (if any) related to the Software and to enable Less Pain to understand which parts of the Software are used most, the frequency of use of the various parts of the Software and which parts may not be functioning as expected. Less Pain may use this information, as long as it is in a form that does not personally identify you, to monitor the performance of its products, improve its products, to provide services or technologies to you and to determine and allocate financial payments Less Pain may owe to any third party for third party software, materials and/or licenses embodied in the Software (if any).
Except as may be provided in a separate agreement between Less Pain and you, if any, Less Pain is under no obligation to maintain or support the Software and Less Pain has no obligation to furnish you with any further assistance, technical support, documentation, software, update, upgrades, or information of any nature or kind.
20.1. From time to time, Less Pain 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 Less Pain'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 Less Pain's sole discretion and that Less Pain may condition continued use of the Software upon your complete installation or acceptance of such update, upgrade or modifications.
20.2. 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 Less Pain, 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.
You agree that the internal workings of the Software and any computer files provided as part of the Software are confidential trade secrets solely owned by Less Pain. If you acquire knowledge about the internal workings of the Software or any other related trade secrets of Less Pain, you agree not to disclose, distribute, disseminate or publish any such information without our prior written agreement. You recognize that trade secrets and license enforcement mechanisms are protected by law in many jurisdictions and infringement of these conditions (even for "personal" use) may be a criminal offence punishable by law. Any attempts to circumvent or defeat any license protection mechanisms in the Software, or knowingly using a registration code which was not issued or authorized by us for your use, are expressly prohibited by this Agreement and may constitute a serious criminal offence in many jurisdictions, punishable by unlimited fines and/or imprisonment.
Neither party shall either, themselves or through a third party and whether directly or indirectly, (except with the prior written consent of the other) during the term of a Agreement, and for a period of one (1) year thereafter, solicit the services in any way or offer any form of employment or contract of or to any staff of the other party who have been engaged in the provision of the services under this Agreement or any significant part of it either as principal, agent, employee, or any other form of employment or engagement other than by means of a common job ad open to everyone and not specifically targeted at such staff of the other party.
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, labour 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.
Neither this Agreement nor any rights, licences or obligations under this Agreement may be assigned by you to any third party, including but not limited to your parents, subsidiaries and affiliates, without the prior written approval of Less Pain.
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and 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 into this Agreement.
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.
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.
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 in Berlin, Germany.