End user license agreement for ZEISS device software

1 Definitions and applicability

1.1     You (hereinafter referred to as “Licensee”) have purchased a certain device (“ZEISS Device”), either from Carl Zeiss AG (“ZEISS”) or from any of its affiliates or authorized distributors, or from another third party. This ZEISS Device has soft-ware embedded which is owned or licensed respectively by ZEISS (“ZEISS Device Software”).

1.2     Any use of the ZEISS Device Software is subject to this present End User License Agreement for ZEISS Device Software (“EULA”). 

1.3     This EULA shall not apply to software of third parties, including what is known as free software and open-source software (FOSS). Such third-party software is subject to the applicable license terms of the respective third party. ZEISS and the Licensee agree that any and all warranties or liability of ZEISS for such third-party software shall be expressly excluded, unless otherwise agreed between ZEISS and the Licensee.

2 Scope of this EULA; separate agreement for ZEISS devices

2.1    This EULA sets forth the limited rights that ZEISS grants to the Licensee with respect to the ZEISS Device Software.

2.2    If the Licensee purchases a ZEISS Device directly from ZEISS, whether against remuneration or free-of-charge, the following applies:
Licensee’s purchase of the respective ZEISS Device and the embedded ZEISS Device Software, and any related rights and obligations of ZEISS on the one side and the customer (= the Licensee) on the other side, including without limitation any matters related to delivery, performance, quality, quantity and pricing, shall be conclusively governed by the terms and conditions of the respective purchase contract between ZEISS and the customer.

2.3    If the Licensee purchases a ZEISS Device not from ZEISS but from an affiliate or another third party, the following shall apply:

Licensee’s purchase of the ZEISS Device and/or the ZEISS Device Software, and any related rights and obligations of ZEISS on the one side and the customer (= the Licensee) on the other side, including without limitation any matters related to delivery, performance, quality, quantity and pricing, shall be conclusively governed by a separate purchase contract con-cluded between the Licensee and the respective third party. The Licensee shall not be entitled to any claims against ZEISS in connection with providing the ZEISS Device and/or the ZEISS Device Software including without limitations any contrac-tual claims due to any defect, failure or non-performance. All such Licensee claims, if any, shall be asserted by Licensee vis-à-vis the respective third party from which the Licensee has purchased the respective ZEISS Device. Without prejudice to the foregoing, ZEISS grants to the Licensee the rights of use with respect to the ZEISS Device Software in accordance with the provisions of this EULA.

3 IP ownership

3.1    Subject to the limited rights expressly granted in this EULA, ZEISS reserves all rights, title and interest in and to the ZEISS Device Software, including all related Intellectual Property Rights (as defined below). No rights are granted to the Li-censee hereunder other than as expressly set forth herein.

3.2    For the purpose of this EULA, “Intellectual Property Rights” means any intellectual property right or other (proper-ty) right throughout the world, in all media, now existing or created in the future, for all versions and elements, in all lan-guages, and for the entire duration of such rights, arising under statutory or common law, contract, or otherwise, and whether or not registered or registrable, including (a) rights in all inventions, discoveries, utility models, patents, reissues of and re-examined patents, or patent applications (wherever filed and wherever issued, including continuations, continuations-in-part, substitutes, and divisions of such applications and all priority rights resulting from such applications) now ex-isting or hereafter filed, issued or acquired; (b) rights associated with works of authorship, including database rights, copy-rights, moral rights, copyright applications and copyright registrations; (c) rights in computer software and programs, source codes, or business methods; (d) rights in materials; (e) rights associated with trademarks, service marks, trade names, internet domain names, business names, logos, trade dress and the applications for registration and the registrations thereof; (f) rights relating to the protection of trade secrets, know-how and/or other confidential information; (g) design rights, whether registered or unregistered; and (h) rights analogous to those in this definition and any and all other proprietary rights relating to intangible property.

4 Grant of rights and restrictions

4.1    Subject to Licensee’s compliance with the terms of this EULA, ZEISS grants to the Licensee a non-exclusive, non-transferable, non-sublicensable right to use the ZEISS Device Software embedded in the purchased ZEISS Device to the ex-tent this is necessary to properly use such ZEISS Device in accordance with any applicable product description. The Licen-see may use the ZEISS Device Software only as embedded by ZEISS in the ZEISS Device.

4.2    Any other use including copy, distribution, sale, lease, rent, or making available to the public of the ZEISS Device Software is strictly prohibited. In particular, the Licensee must not use the ZEISS Device Software (i) on, or in combination with, any hardware other than the respective ZEISS Device, (ii) in combination with any other software, or (iii) as stand-alone-software.

4.3    The Licensee shall not modify, translate, decompile, or disassemble the ZEISS Device Software and/or the accompa-nying documentation and information without prior written consent by ZEISS, unless and to the extent permitted by appli-cable mandatory law. If the Licensee intends to decompile the ZEISS Device Software in order to obtain information that is necessary to establish interoperability of an independently created computer program with other programs, the Licensee shall informs ZEISS in writing of its intention and ZEISS shall, at its sole discretion, provide the necessary information within a reasonable period.

4.4    The Licensee may not change or remove any copyright and/or authorship notices attributable to the ZEISS Device Software.

4.5    ZEISS remains the owner of all rights to the ZEISS Device Software, even if the Licensee modifies the ZEISS Device Software, and/or combines it with the Licensee's own programs or those of third parties, in violation of this EULA. If, due to applicable mandatory law, the Licensee or any third party commissioned by the Licensee, are to be considered owners of rights to the modifications or links, the Licensee grants ZEISS rights of use thereto to the greatest possible extent, including without limitation an exclusive, perpetual, global, transferable and sublicensable right without any limitation to use, market, copy, disseminate, and make publicly available these modifications/links, and (if applicable) the Licensee shall ensure that the relevant third party grant ZEISS these rights, too.

5 Warranty disclaimer

5.1    Except as agreed otherwise between ZEISS and the Licensee, the ZEISS Device Software is provided “as is” and ZEISS makes no warranties, whether express or implied, with respect to the ZEISS Device Software, including, but not limited to, any warranties of merchantability or fitness for a particular purpose. ZEISS does not warrant that the ZEISS Device Software will meet Licensee’s requirements or that the ZEISS Device Software will be error-free. ZEISS makes no warranty of non-infringement.

5.2    Except as agreed otherwise between ZEISS and the Licensee, this EULA sets forth the entire obligations of ZEISS with respect to the ZEISS Device Software.

6 Limitation of liability

6.1    ZEISS shall be liable for damages (i) to the extent that ZEISS’s liability cannot be limited or excluded according to applicable law, in particular applicable product liability law; (ii) caused by intent or gross negligence of ZEISS, its legal representatives, employees, vicarious agents, or subcontractors; and (iii) to life, body or health caused by willful intent or negli-gence of ZEISS, its legal representatives, employees, vicarious agents or subcontractors.

6.2    Except as otherwise provided for in section 6.1: (a) in no event shall ZEISS be liable for loss of profits, loss of data, indirect, special, incidental, consequential or other damages arising out of or in connection with this EULA or relating to the use of the ZEISS Device Software, whether such claim is based on breach of warranty, breach of contract, tort or any other legal theory ad regardless of the cause of such loss or damage, and (b) ZEISS’s total liability for any claims out of or in connection with this EULA is limited in aggregate to an amount of EUR 1.000.

7 Data protection

For information about the processing of personal data by ZEISS in connection with providing the ZEISS Device Software, if any, please refer to ZEISS’s privacy policy.

8 Applicable laws; export control

8.1    The Licensee is responsible for ensuring that its use of the ZEISS Device Software is compatible with all statutory and regulatory requirements applicable to the Licensee.

8.2    The Licensee is informed that the export or re-import of the ZEISS Device Software, information and documentation is subject to the relevant export and import provisions of the Federal Republic of Germany, the European Union and/or the United States of America.

9 Final provisions

9.1    This EULA and any disputes arising out of or related hereto, shall be governed exclusively by the laws of the Federal Republic of Germany excluding its conflicts of laws rules. The U.N. Convention on the International Sale of Goods (CISG) of April 11, 1980 as well as all related agreements shall not apply.

9.2    Any disputes arising out of or in connection with this EULA shall be exclusively submitted to the courts of Jena.

9.3    If provisions of this EULA are or become invalid, void, and/or unenforceable in whole or in part, the effectiveness of the remaining provisions of this EULA shall remain unaffected.

Last modified: September 2019