Licence Conditions / EULA

These Licence Conditions regulate the rights and duties of the end customer with respect to software and apps offered by LEMKEN GmbH & Co. KG, Weseler Straße 5, 46519 Alpen (hereinafter: LEMKEN) in their iQblue shop range

Please read carefully through the Licence Conditions. The following terms and condi-tions apply when you purchase software or an app.

 

List of Contents

A. Definitions

B. General Terms and Conditions for Software

1. Scope

2. Copyright / Intellectual property rights

3. Scope of use 

4. Assignability

5. Duties of the Customer

6. Warranty

7. Liability

8. Termination of the right of use

9. General Terms and Conditions of Business

C. Special Conditions for Software as a Service

1. Scope

2. Scope of use

3. Duties of the Customer

4. Provision

5. Data Protection

6. Warranty

7. Termination of the right of use

8. General Terms and Conditions of Business

D. Special Conditions for apps

1. Scope

2. Right of use

3. Duties of the Customer

4. Assignability

5. General Terms and Conditions of Business

E. Special Conditions for the LEMKEN iQblue Clara

1. Scope

2. Scope of use

3. Data Protection

4. General Terms and Conditions of Business

F. Special Conditions for the agrirouter offer

1. Scope

2. Special Licence Conditions

G. Special Conditions for the NEXT Machine Management offer

1. Scope

2. Scope of use

3. Data Protection

4. General Terms and Conditions of Business

 

A. DEFINITIONS

 1. Entrepreneur 

An entrepreneur is every natural or legal person, or partnership having legal capacity, which exercises its commercial or independent professional activity in concluding the contract

 2. Consumer 

A consumer is any natural person, who concludes a legal transaction for a purpose, which cannot be attributed either to his commercial or to his independent professional activity

 3. End customer

A customer, for whom a product or a service is ultimately designed

 4. Licence

In general, the authorisation or permit to exercise a right commercially; with respect to these Licence Conditions the right to be able to use the object of the licence to the extent regulated

 5. Sub-licence

The licensee grants third parties a right of use in the object of the licence.

 6. Licensee

The legal or natural person, to which or whom the right to use this software is granted by reason of purchase, renting or leasing

 7. Third parties

Persons other than the licensee, who have not been authorised by the licensor to use the objects

 8. Software

All non-physical components of a computer-supported system; with respect to these Licence Conditions the routinely executable software of the licensor is assigned by the licensor to the licensee or the software made available to the licensee as Software as a Service

 9.  Licence code

A code consisting of letters or figures, which must be entered during installation or on first starting up an item of computer software, in order to release the software

 10. Decompilation

Process of re-translating a machine code into a human-readable program code

 11. Reverse Engineering

Investigation of the functional principles of an item of software

 12. Software as a Service (SaaS)

Cloud-based and/or server-based provision of specific software services for an agreed period against payment

 

B. GENERAL TERMS AND CONDITIONS FOR SOFTWARE

1. SCOPE

These Licence Conditions apply to all software products offered by LEMKEN through the IQblue shop. In addition, for specific products the respective specific terms and conditions apply in accordance with these Licence Conditions. These Licence Conditions apply to entrepreneurs and consumers. In this process LEMKEN acts as licensor, the customer as licensee. 

2. COPYRIGHT / INTELLECTUAL PROPERTY RIGHTS

LEMKEN is the owner of the copyright and other intellectual property rights. Unless rights are expressly granted to the customer in accordance with these terms and condi-tions or the General Terms and Conditions of Business of LEMKEN, all rights in the software (and all copies produced by the customer), in particular the copyright authorisations, the rights in or to inventions and technical intellectual property rights, are the exclusive property of LEMKEN. This applies also to processing of the software by LEMKEN. The ownership of the customer in the respective data storage media for such copies remains unaffected.

3. SCOPE OF USE

3.1 LEMKEN grants the customer a non-exclusive right of use, limited in time to the term of the contract concluded with LEMKEN, however only for the destination country, in which the software shall be used, which has been agreed between the parties. Unless there is express agreement, the right of use is granted solely for the country, in which the customer is resident or has his registered office. 

3.2 The Licence Conditions and the right of use in the software do not become effective until both LEMKEN and the customer have agreed the quotation in writing or by means of an electronic system and the customer has agreed the applicable Licence Conditions and the applicable General Terms and Conditions of Business in writing or by means of an electronic system.

3.3 The customer may use the software only for its own purposes or for third parties, who are associated with it within the meaning of § 15 German Stock Corporation Act (Allies Companies). In particular making the software available on a temporary basis (for example, as application service providing) for companies other than allied companies, the use of the software for training persons, who are not employees of the customer or its allied companies, is permitted only with the prior written agreement of LEMKEN. Commercial sub-leasing is generally prohibited.

3.4 Reproduction of the software is admissible only insofar as this is necessary for use in accordance with the contract. The customer has a right to create back-up copies in accordance with § 69 (2) German Copyright Act. The customer may make back-up copies of the software to the necessary extent in accordance with the generally recognised rules of engineering. Back-up copies on mobile data storage media must be identified as such and provided with the copyright mark of the original data storage device. If the customer has purchased the software by way of online download, it is entitled to copy the software in the case of transfer in accordance with § 4 onto a data storage device. Otherwise LEMKEN's right in the online copy expires in the same way as if the customer had received the software on data storage media.

3.5 The customer is authorised to modify, expand and otherwise rework the software within the meaning of § 69c No. 2 Copyright Act only insofar as the law allows that such is indispensable. Before the customer itself resolves faults or resolves faults by means of third parties, it must in the first instance allow LEMKEN an attempt to resolve the fault. The customer does not have its own rights of use and exploitation rights in such processing beyond the rights of use granted under this contract. If rights to processing arise to the customer, LEMKEN may in every case, against reasonable remuneration, demand an exclusive or non-exclusive right of use, unlimited in terms of space and time, with the right to grant a sub-licence.

3.6 The purchaser is entitled to decompile the software only within the limits in § 69e Copyright Act and not until LEMKEN on written request with a reasonable period of notice has failed to provide the necessary data and/or information, in order to produce interoperability with other hardware and software.

3.7 The customer is entitled to test runs and to observation of the program within the meaning of § 69d Copyright Act.

3.8 If LEMKEN assigns to the customer as part of rectification of a defect or product care (for example, patches, additions to the Operating Manual) or a new edition of the object of the contract (for example, updates, upgrades), which replace the objects of the contract previously assigned, (old software), these are subject to the provisions of this agreement.

3.9 The licence is restricted to the software product specifically purchased and does not extend to successor versions of the respective software.

However, if LEMKEN provides a new edition of the software, the rights of the customer with respect to the old software under this contract expire, even if LEMKEN does not demand the return of the old software, from the moment that the customer uses the new software productively. LEMKEN grants the customer, however, a transition phase of three months, in which both versions of the software may be used in parallel. 

3.10 Subject to Points 3.3 and 3.4 and provided that the documentation is integral to the software, any reproduction or reworking of the application documentation is not permitted.

3.11 Subject to the provisions in Points 3.5 and 3.6 of these Licence Conditions the customer is forbidden to copy, reproduce, translate, modify, disassemble, decompile, replicate, amend or reconstruct or in any other way to duplicate or process the software in whole or in part without the prior, express, written agreement of LEMKEN.

3.12 In particular, the customer is forbidden to duplicate, rent out or lease the software in whole or in part, to translate, process or otherwise remodel the software, to sub-license the software or publicly to play back the software by cable or by wireless means, including making it publicly accessible in a way such that it is accessible to members of the public from locations and at times of their choice. The customer is further forbidden to decompile, disassemble or reverse engineer the software, unless the customer is entitled thereto under relevant compelling copyright.

3.13 The customer is also forbidden to circumvent technical procedures for the protection of the software. 

3.14 All rights to the source code for the software are the exclusive property of LEMKEN. The customer has no claim of any kind to the source code or the issue of the source code. § 69e Copyright Act remains unaffected.

4. ASSIGNABILITY 

The customer is forbidden to grant sub-licences to third parties. The customer alone is granted a right of use for the period agreed with LEMKEN. Assignment to third parties is not included in the right of use. 

5. DUTIES OF THE CUSTOMER

5.1 The customer shall store the assigned software with care, in order to avoid abuse. It shall allow third parties access to the software (irrespective of whether it remains unaltered or has been reworked), in particular to the licence code, only after the prior written agreement of LEMKEN. The customer's employees and other persons, who use the software in accordance with the contract while engaged on the customer's premises, are not deemed to be third parties. § 4 remains unaffected.

5.2 The customer must ensure that third parties as defined in Point 5.1 do not copy, reproduce, translate, modify, disassemble, decompile, replicate, amend or reconstruct the software, gain unauthorised access to the software or duplicate and/or process it in any other way.

5.3 If the customer becomes aware of a use of the software, which is not authorised under these Licence Conditions, the customer shall immediately notify LEMKEN thereof. 

5.4 The customer is not permitted to alter or remove copyright markings, identification marking and/or inspection numbers or symbols of the vendor. If the purchaser modifies or processes the objects covered by the contract, these markings and identification marks must be transferred to the modified version of the contractual object.

5.5 If the customer assigns data storage media, memories or other hardware, on which software (in whole or in part, unaltered or reworked) is stored, to third parties or if it assigns direct ownership thereto, it shall ensure that the stored contractual objects are completely and permanently deleted prior to assignment.

5.6 The customer has made itself familiar with the material functional features of the software and bears the risk that these correlate to its desires and requirements. The customer shall comply with the notices issued by LEMKEN for the installation and operation of the software. The customer itself is responsible for the correct installation and configuration of the software. The installation of a properly functioning and with regard to the additional load caused by the software, an appropriately sized hardware and software environment for the software is the sole responsibility of the customer.

6. WARRANTY

6.1 During the statutory warranty period LEMKEN warrants that the mode of operation of the software essentially corresponds to the software specifications.

6.2 LEMKEN does not warrant that the software meets the customer's requirements. LEMKEN grants no warranty for technical details or the suitability of the software for specific purposes, unless otherwise specified in the software specification. The software specification or specifications set out in other documentation do not represent a warranty, unless they are expressly designated as such.

6.3 If the customer is an entrepreneur on submission of a warranty claim LEMKEN shall, at its discretion, remedy defects in the software by troubleshooting, updates or releases of a new version of the software. 

6.4 The customer has no claims under the warranty 

  • if it fails to use the software in accordance with the instructions or uses it incorrectly, or 
  • if it modifies or changes the software without the prior written agreement of LEMKEN, or
  • if problems or faults are due to the fact that the software has been used with programs, which are not compatible with the software,
  • unless the customer proves that the defect can be traced back to the software.

 

6.5 If the customer has a claim to compensation in damages or replacement by virtue of the warranty, this is subject to the limitation of liability in § 7 below.

7. LIABILITY

7.1 LEMKEN does not accept liability for damage, delays or impediments to performance, which lie outside its sphere of responsibility.

7.2 LEMKEN does not accept liability for damage, which can be attributed to improper, inappropriate use of the software or use of the software, which is not in accordance with regulations.

7.3 Irrespective of legal grounds LEMKEN is liable only for damage, which has been caused by culpable intent or gross negligence or if the damage caused by LEMKEN has caused injury to life, limb or health, or in the case of a culpable breach of a material primary contractual duty or cardinal duty or in the case of the non-fulfilment of a guarantee or if a fault has been fraudulently concealed by LEMKEN. A cardinal duty within the meaning of this provision is a duty by LEMKEN, the fulfilment of which is essential to the performance of the contractual relationship between the parties, the breach of which jeopardises the achievement of the purpose of the contract and on compliance with which the customer may routinely rely.

7.4 In the case of the breach of a material primary contractual duty or cardinal duty, which is attributable to simple negligence, LEMKEN's liability is limited to the typically foreseeable loss.

7.5 Further liability of LEMKEN is excluded. Liability under the German Product Liability Act remains unaffected by these General Terms and Conditions of Business.

8. TERMINATION OF THE RIGHT OF USE

8.1 A purchase of the software subject to the stipulation of a specific term gives entitlement only to the use of the software until the end of that term. 

8.2 In all cases, in which the entitlement to use has come to an end (for example, by withdrawal from the contract, subsequent deliveries) the customer shall immediately return all supplies of the contractual object and shall erase all copies, unless it is under a statutory duty of retention for a longer period. § 3 Point 4 remains unaffected. The customer shall assure LEMKEN in writing that it has complied with these requirements.

9. GENERAL TERMS AND CONDITIONS OF BUSINESS

These Licence Conditions supplement the General Terms and Conditions of Business of LEMKEN. The Licence Conditions are applicable in parallel with the General Terms and Conditions of Business.

 

C. SPECIAL CONDITIONS FOR SOFTWARE AS A SERVICE

1. SCOPE

These Licence Conditions apply to all software products, which LEMKEN offers through the iQblue shop as Software as a Service. In addition, the other provisions of these Licence Conditions must be complied with. The provisions in this section supplement the provisions in Section B. These Licence Conditions apply to entrepreneurs and consumers. In this process LEMKEN acts as licensor, the customer as licensee.

2. SCOPE OF USE

2.1 For the term of contract underlying the licence contract LEMKEN assigns to the customer in return for payment the software in the version current at any given time through the Internet. 

2.2 The service comprises:

  • assignment of the software for use through the Internet and 
  • concession of storage space on servers provided by LEMKEN.

2.3 On payment in full of the user fee due and agreed under the contract the customer is granted the single, restricted, non-exclusive right of use of the software, which cannot be sub-leased or assigned, for the term of the underlying contract.

2.4 If installation of an item of software is necessary for use, the customer may only duplicate this software if this is covered by the intended use of the software. Necessary duplication includes the loading of the software into the main computer memory on the provider's server, however this does not include also the temporary installation or storage of the software on data storage media (such as hard disks inter alia) of hardware used by the customer.

2.5 The customer is not entitled to make the software available in return for payment or free of charge for use by third parties. Sub-leasing of the software is not permitted.

2.6 The customer is not entitled to undertake modifications to the software. This does not apply to modifications, which are necessary for the correction of faults, provided that LEMKEN is in arrears with the rectification of faults, refuses to remedy faults or is no longer in a position to remedy faults by reason of the opening of insolvency proceedings.

2.7 In particular, the customer is not entitled to investigate the method of operation by way of what is known as reverse engineering, to decompile, to disassemble the software to its component parts and/or to use the software as the basis for the creation of its own software program.

2.8 If the customer breaches the foregoing provisions, LEMKEN is entitled immediately to block access to all users of the customer having given prior notification in textual form, if the breach can thereby demonstrably be remedied. If access is blocked to protect from risks because this has been ordered by governmental authorities or if it is blocked to protect LEMKEN and your customers from risks, notification shall not be issued until after access is locked.

3. DUTIES OF THE CUSTOMER

3.1 The customer is obliged to prevent unauthorised access by third parties to the protected area in the software by taking suitable precautions. 

3.2 If the customer becomes aware of use of the software, which is unauthorised under these Licence Conditions, or of defects in the software, the customer shall immediately notify LEMKEN thereof.

3.3 Irrespective of the obligation of the provider to back up data, the customer itself is responsible for the entry and product care of its data and information required for the use of the SaaS services.

3.4 The customer accepts liability for ensuring that the software is not used for unlawful purposes or purposes, which breach governmental provisions or regulations and in par-ticular that analogous data is not generated and/or stored on the server or locally.

3.5 If the customer becomes aware of use of the software, which is unauthorised under these Licence Conditions or of defects in the software, the customer shall immediately notify LEMKEN thereof.

3.6 The customer has made itself familiar with the material functional features of the software and bears the risk that these correlate to its desires and requirements. The cus-tomer shall comply with the notices issued by LEMKEN for the installation and operation of the software. The customer itself is responsible for the correct installation and configuration of the software. The installation of a properly functioning and with regard to the additional load caused by the software, an appropriately sized hardware and software environment for the software is the sole responsibility of the customer.

4. PROVISION

4.1 LEMKEN is responsible for the availability of the software and the application data at the transfer point.

4.2 Alignments, modifications and additions to the SaaS services, which are the object of the contract, and procedures, which serve the assessment and rectification of malfunc-tions, shall cause temporary interruption or impairment of accessibility only if this is compellingly necessary for technical reasons.

4.3 LEMKEN shall rectify the defects in the software reported by the customer within a reasonable period of time.

4.4 Availability is 95% on average per year, in terms of twenty four hours a day and seven days a week. Exceptions from availability are downtimes for maintenance and software product care, in particular scheduled non-availability, together with times, during which the software cannot be accessed by reason of technical or other problems, which are not in LEMKEN's sphere of influence (e.g. force majeure, default by third parties, etc.).

5. DATA PROTECTION

5.1 All data, which do not arise from the permitted use of the software provided, are application data. All rights in these data are the exclusive property of the customer.

5.2 Both LEMKEN and the customer shall comply with the provision of data protection law in force at any given time and shall impose this duty of compliance with the provisions on their employees and/or users in connection with the software and its use or shall ensure compliance with this duty.

5.3 LEMKEN protects the services and systems provided and the customer's application data or the application data pertaining to the customer in the possession of LEMKEN and where applicable, other data against unauthorised perusal, storage, modification or other unauthorised access or attacks of any kind whatsoever. For this purpose LEMKEN takes the appropriate and customary measures offered by the state of the art, including virus protection and protection from malware and other security measures including protection from burglary.

6. WARRANTY

6.1 During the statutory warranty period LEMKEN warrants that the method of operation of the software corresponds essentially with the specification.

7. TERMINATION OF THE RIGHT OF USE

On termination of its right of use the customer's application data shall be erased 

8. GENERAL TERMS AND CONDITIONS OF BUSINESS

These Licence Conditions supplement the General Terms and Conditions of Business of LEMKEN. The Licence Conditions are applicable in parallel with the General Terms and Conditions of Business.

 

D. SPECIAL CONDITIONS FOR APPS

1. SCOPE

These Licence Conditions apply to all app products offered by LEMKEN through the iQblue shop. In addition, the other provisions of these Licence Conditions must be complied with. The provisions in this section supplement the provisions in Sections B and C. These Licence Conditions apply to entrepreneurs and consumers. In this process LEMKEN acts as licensor, the customer as licensee. 

2. RIGHT OF USE

2.1 LEMKEN reserves all rights related to the contents of the apps. Duplication of the texts, graphics and further contents is permitted only with the express authorisation of LEMKEN.

2.3 Duplication is permitted only if this is necessary for the use of the program. Neces-sary duplication includes in particular the loading of the program into the main computer memory.

3. DUTIES OF THE CUSTOMER

3.1 The prerequisite for faultless use of the apps is that the customer possesses compatible devices and the software required for the respective devices. The customer itself is responsible for the correct installation and configuration of the software.

3.2 The customer is obliged to refrain from all actions, which jeopardise the secure operation of the app. The customer is also obliged to protect the app from abuse. 

4. ASSIGNABILITY

With permission from LEMKEN the customer may have the apps re-registered to another user. Otherwise the customer may use the apps exclusively for its own purposes; the customer must refrain from any transfer to a third party other than by re-registration. It is the customer's responsibility to ensure that the app is transferred to a third party only by way of re-registration. Re-registration to a third party may be undertaken only as one transaction and subject to simultaneous, complete and final assignment of the customer's own use. The assignment of use for payment on a temporary or partial basis to third parties is prohibited. The same applies to assignment without payment. Transfer may be transacted solely by LEMKEN. The user is consequently hereby not entitled to grant sub-licences. 

5. GENERAL TERMS AND CONDITIONS OF BUSINESS

These Licence Conditions supplement the General Terms and Conditions of Business of LEMKEN. The Licence Conditions are applicable in parallel with the General Terms and Conditions of Business.

 

E. SPECIAL CONDITIONS FOR THE LEMKEN iQblue Clara

1. SCOPE

These Licence Conditions apply to all the services and contractual objects with respect to the iQblue Clara offered by LEMKEN through the iQblue shop. In addition, the other provisions of these Licence Conditions must be complied with. These regulations apply only as supplements to the other provisions. These Licence Conditions apply to entrepreneurs and consumers. In this process LEMKEN acts as licensor, the customer as licensee.

2. SCOPE OF USE 

2.1 All the objects covered by the contract with respect to the LEMKEN iQblue Clara, in particular the use of the app and the software are limited to two years. Thereafter the customer may conclude a further subscription. The corresponding service conditions are derived from the product specification.

2.2 LEMKEN grants the customer a non-exclusive right of use, limited in time, in the object covered by the contract with respect to theiQblue Clara. The restriction with respect to time is governed by the contractual provisions agreed between the customer and LEMKEN.

2.3 The right of use ends at the end of the term of the contract between LEMKEN and the customer. The contract is limited to two years and can be extended by one year on each occasion. The contract can be extended thus three times. 

3. DATA PROTECTION

3.1 Both LEMKEN and the customer shall comply with the provisions of data protection law in force at any given time and shall impose this duty of compliance with the provisions on their employees and/or users in connection with the software and its use or shall ensure compliance with this duty. 

3.2 LEMKEN protects the services and systems provided and the customer's application data or the application data pertaining to the customer in the possession of LEMKEN and where applicable other data against unauthorised perusal, storage, modification or other unauthorised access or attacks of any kind whatsoever. For this purpose LEMKEN takes the appropriate and customary measures offered by the state of the art, including virus protection and protection from malware and other security measures including protection from burglary.

3.3 The manufacturer of the iQblue Clara, Apps for Agri, Stadhuisplein 345a, 5038 TH Tilburg, is entitled to access the data for the iQblue Clara. If personal data are collected, the customer accordingly gives his consent to collection of the data as part of the order process. 

4. GENERAL TERMS AND CONDITIONS OF BUSINESS

These Licence Conditions supplement the General Terms and Conditions of Business of LEMKEN. The Licence Conditions are applicable in parallel with the General Terms and Conditions of Business.

 

F. SPECIAL CONDITIONS FOR THE AGRIROUTER OFFER

The agrirouter is an offer of DKE-Data GmbH & Co. KG, Albert-Einstein-Str. 42, 49076 Osnabrück. DKE-Data GmbH is the licensor for the agrirouter product. Consequently we refer you to the Licence Conditions of the licensor. 

 

G. SPECIAL CONDITIONS FOR THE NEXT MACHINE MANAGEMENT AGRIROUTER OFFER

1. SCOPE

These Licence Conditions apply to all the services and contractual objects with respect to the NEXT Machine Management service offered by LEMKEN through the iQblue shop. In addition, the other provisions of these Licence Conditions must be complied with. These regulations apply only as supplements to the other provisions. These Licence Conditions apply to entrepreneurs and consumers. In this process LEMKEN acts as licensor, the customer as licensee.

2. SCOPE OF USE 

2.1 NEXT Machine Management is an offer of FarmFacts GmbH, Rennbahnstraße 9, 84347 Pfarrkirchen. LEMKEN acts as a sales partner and vendor of the appropriate licences for the NEXT Machine Management Software and the NEXT Machine Management app. The user receives from LEMKEN the appropriate licence code for the range of services, to which the user is entitled for the application for the respective object of the contract.

2.2 All objects covered by the contract with respect to the NEXT Machine Management offer, in particular the use of the app and the software, are limited to one year. The cor-responding service conditions are derived from the product specification.

2.3 LEMKEN grants the customer a non-exclusive right of use, limited in time, to the object covered by the contract with respect to the NEXT Machine Management offer. The restriction with respect to time is governed by the contractual provisions agreed between the customer and LEMKEN.

2.4 The right of use ends at the end of the term of the contract between LEMKEN and the customer. 

3. DATA PROTECTION

3.1 Both LEMKEN and the customer shall comply with the provisions of data protection law in force at any given time and shall impose this duty of compliance with the provisions on their employees and/or users in connection with the software and its use or shall ensure compliance with this duty. 

3.2 LEMKEN protects the services and systems provided and the customer's application data or the application data pertaining to the customer in the possession of LEMKEN and where applicable, other data against unauthorised perusal, storage, modification or other unauthorised access or attacks of any kind whatsoever. For this purpose LEMKEN takes the appropriate and customary measures offered by the state of the art, including virus protection and protection from malware and other security measures including protection from burglary.

4. GENERAL TERMS AND CONDITIONS OF BUSINESS

These Licence Conditions supplement the General Terms and Conditions of Business of LEMKEN. The Licence Conditions are applicable in parallel with the General Terms and Conditions of Business. 

 

Status: August 2019