1.1 “Activate” or ”Activation” means the entry of the License Key in order to enable Using the Licensed Software.
1.2 “Defect” is a collective term that encompasses (a) defects in quality [Sachmängel] (e.g. an error in the Licensed Software) and (b) defects in title [Rechtsmängel] (e.g. infringement of intellectual property rights).
1.3 “Documentation” means the user documentation for the Licensed Software accessible on the Website.
1.4 “EULA” means this Subscription Based End User License Agreement for Twizzar from version v1.1.0 in Business-Plan or Enterprise-Plan (including its Annex Business-Plan and Enterprise-Plan) which ap-plies to the subscription and Use of the Licensed Software.
1.5 “Frozen License” means the gratuitous perpetual License as set forth in Section 4.3.
1.6 “Intellectual Property Rights” means any and all patent and patent applications, copyright, database right, trademark (whether registered or unregistered), Internet domain names, design right, utility mod-el, service mark, and all other intellectual property and proprietary rights (whether registered or unreg-istered, and any application for the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
1.7 “License” means the fee-based right to Use the Licensed Software during the Subscription Term on up to three (3) Windows Systems (computers or virtual machines) according to the terms and conditions of this EULA and its Annex Business-Plan and Enterprise-Plan.
1.8 “License Key” means a unique code or license file supplied by vi:sit required to Activate and Use the Licensed Software for one (1) Subscription Term.
1.9 “License Plan” means the Business-Plan or Enterprise-Plan which determines the scope of use and support services as specified in Annex Business-Plan and Enterprise-Plan in more detail. Licensee chooses the License Plan when Purchasing the Licensed Software.
1.10 “Licensed Software” means (a) the proprietary Visual Studio add-on software Twizzar from version v1.1.0 for which vi:sit grants a License to Licensee based on the EULA and (b) the accompanying Documentation.
1.11 “Licensee” means the corporate entity or enterprise or natural person that is entitled to download, Pur-chase and Use the Licensed Software pursuant to the terms and conditions set forth in the present EULA.
1.12 “Parties” or “Party” means Licensee and vi:sit, or either of them.
1.13 “Purchase” means the ordering of a License Key by Licensee based on the chosen License Plan against payment of a license fee and the supply of such License Key by vi:sit after receipt of pay-ment in order to grant the respective License to Licensee.
1.14 “Subscription Term” means the license period selected when Purchasing the License.
1.15 “Use” means (i) installing the Licensed Software on a Windows system (computer or virtual machine), (ii) running the Licensed Software as an add-on for Microsoft Visual Studio on Windows, (iii) pro-cessing data with the Licensed Software and (iv) creating a reasonable number of backup copies of the Licensed Software, in each of the aforesaid cases in accordance with the terms and conditions of this EULA including, but not limited to, the restrictions of Use applicable to the Licensed Software.
1.16 “vi:sit” means the licensor of the Licensed Software which is the company vi:sit – Vetter IT solutions Schweiz GmbH, Untere Rebgasse 7, CH – 4058 Basel, Switzerland.
1.17 “Website” means the website operated by vi:sit under www.twizzar.com.
2.1 The subject matter of this EULA is the Purchase, Licensing and Use of Licensed Software from its version v1.1.0 as well as the provision of the support services listed in the Annex Business-Plan and Enterprise-Plan for the respective License Plan Purchased by Licensee. For the avoidance of doubt, vi:sit may in its sole discretion decide to release a different end user license agreement for any newer version(s) of Twizzar. In this case, such newer version(s) of Twizzar will not be subject to the present EULA but solely to the then applicable different end user license agreement. Notwithstanding the foregoing, this EULA remains in force and effect for the Licensed Software for the then current Sub-scription Term unless Licensee Purchases a License for a newer version of Twizzar on the basis of the then applicable different end user license agreement.
2.2 The relevant functions of the Licensed Software as well as the description of its technical realization have been specified in the Documentation. The subscription based License is a temporary license which requires an annual renewal.
2.3 The Licensed Software is a test framework for .NET that helps software developers write clear and maintainable unit tests. For the avoidance of doubt, the Licensed Software is a software tool to cre-ate unit tests, but is neither made nor designated for finding errors in the code of the software that shall be tested on the basis of the unit tests created with the Licensed Software. In addition, Licensee is aware that the Licensed Software is a solution based on Microsoft Visual Studio on Windows and can therefore only be Used as an add-on for Microsoft Visual Studio on Windows as long as Licen-see Uses the required standard software Microsoft Visual Studio (system requirements are specified in the Documentation). Licensee knows that it is not possible to Use the Licensed Software individual-ly or together with or as an add-on to any other integrated development environment (IDE). No special infrastructure is required for the execution of unit tests developed with the Licensed Software. How-ever, the component Twizzar-Library, for which Licensee can obtain a gratuitous license on the basis of a separate license agreement, must be referenced.
2.4 The provisions of this EULA govern exclusively. The Annex Business-Plan and Enterprise-Plan forms an integral part of this EULA. Standard terms and conditions of Licensee do not apply, even if vi:sit has not expressly rejected the application of such terms and conditions.
2.5 Other work such as advice in selecting software, installation, implementation, modification, parameter-ization, customization, etc. or familiarization and training are not covered by this EULA. Such ser-vices, if offered by vi:sit at all, are subject to other contractual terms and conditions which are inde-pendent of this EULA.
3.1 Use of the Licensed Software is subject to Activation of the Licensed Software which requires the Purchase of a License Key and entering the License Key in the Licensed Software’s Activation dia-logue. Each License Key can only be used by Licensee for Activation of the Licensed Software on up to three (3) Windows systems (computers or virtual machines) pursuant to the restrictions stipulated in Section 5.2.
3.2 A new License Key and a separate Activation is necessary for each single Subscription Term (see also Section 7.3). The Purchase of the License Key for each Subscription Term must be made on the Website unless otherwise agreed with vi:sit. vi:sit reserves the right to offer future and renewal Li-censes under a modified, then current version of the EULA.
4.1 The Subscription Term commences on the day when Licensee Purchases the Licensed Software. If, after expiry of the Subscription Term, Licensee wants to continue the Use of the Licensed Software, Licensee must Purchases a new License Key in time and re-Activates the Licensed Software.
4.2 The right to extraordinary termination for good cause remains unaffected.
4.3 Upon termination or expiration of the License, Licensee's right to Use the Licensed Software as well as any other rights granted herein on a subscription basis shall cease with respect to the terminated License. However, if the Subscription Term was at least one (1) year and Licensee then decides not to Purchase a new License Key on the basis of the then current version of the EULA, Licensee remains entitled to continue Using the Licensed Software as a gratuitous non-exclusive, worldwide, perpetual, non-transferable Frozen License in the status “as is” at the time of termination or expiration of the Subscription Term, but is not entitled to receive any patches, updates, upgrades, new versions or other enhancements, modifications or remedies or support services listed in the Annex Business-Plan and Enterprise-Plan for such frozen version of the Licensed Software. For the avoidance of doubt, any contractual obligations and restrictions imposed on Licensee in this EULA will continue to apply for such Frozen License.
5.1 vi:sit grants to Licensee a non-exclusive, worldwide, non-perpetual, non-transferable License to Use the licensed Software during the Subscription Term subject to the rights granted and restrictions stat-ed in this Section 5 and in the Annex Business-Plan and Enterprise-Plan. Use of the Licensed Soft-ware requires Activation as stipulated in Section 3.
5.2 The Purchase of one (1) License entitles Licensee to install and Use the Licensed Software on up to three (3) Windows systems (computers or virtual machines) provided that the License concerned may only be Used by a single natural person as a user. Sharing a single License among more than one (1) users is not allowed and requires a separate License for each user.
5.3 Licensee is not allowed to copy, distribute and license the Licensed Software in whatever kind and form.
5.4 All Intellectual Property Rights to the Licensed Software made available by vi:sit including without limitation the comprehensive copyright remains, as regards Licensee, with vi:sit. This legal status en-joyed by vi:sit remains unchanged by the grant of Licenses to Licensee in accordance with this EULA.
5.5 The License Key which is necessary for Activation and Use of the Licensed Software will not be sup-plied before vi:sit has received in full the license fee agreed for the relevant Subscription Term.
5.6 vi:sit makes the Licensed Software available in object code form only. Accordingly, Licensee can download from the Website executable files only and no source code.
5.7 In particular, Licensee’s right to Use the Licensed Software does not include the rights to
5.7.1 resell, lease or lend the Licensed Software;
5.7.2 distribute or make the Licensed Software available to the public both online and offline;
5.7.3 transfer the License;
5.7.4 duplicate the Licensed Software in excess of the number of installations agreed between the Par-ties upon Purchase of the Licensed Software. Licensee’s statutory rights to make a reasonable number of backup copies remain unaffected. Licensee is obligated to keep records of all copies or partial copies of the Licensed Software Licensee makes, and to store them in a secure location, as well as to provide information to vi:sit about such copies or partial copies upon request;
5.7.5 adapt, modify, translate, arrange or otherwise change or revise the Licensed Software unless (a) such acts are necessary for the Use of the Licensed Software in accordance with its intended pur-pose, including for error correction, by any person authorized to Use a copy of the Licensed Software concerned and (b) vi:sit does not offer to remedy the error under customary market terms and conditions or the offered remedy has failed twice due to the same Defect or to Defects which are directly related thereto. Apart from that, Licensee is authorized to adjust the customiza-tion and parameterization options contemplated in the Licensed Software in order to meet its own needs. Beyond that, vi:sit reserves the exclusive right to adapt, modify, translate, arrange or oth-erwise change or revise the Licensed Software.
5.7.6 attempt to uncover or decode the source code of the Licensed Software either through disassem-bly, de-compilation, reverse engineering or some other method unless and to the extent that one of the aforesaid methods is indispensable to obtain information necessary for the establishment of interoperability of another independently created computer program with the Licensed Software. Licensee shall, however, request vi:sit for, and give vi:sit an opportunity to provide within a rea-sonable time, the necessary information and documents for establishing interoperability before Li-censee carries out any disassembly, de-compilation, reverse engineering or the like in accordance with Art. 21 of the Swiss Copyright Act (URG). Licensee may exercise its rights under Art. 21 of the Swiss Copyright Act (URG) only if vi:sit fails to comply with the aforesaid request. However, in-formation obtained by way of disassembly, de-compilation, reverse engineering or the like must not be used or passed on to third parties for any other purpose than the development, mainte-nance and use of the other independently created interoperable computer program and must not be used to develop, produce or market a computer program substantially similar in its expression or for any other acts which infringe copyrights.
5.7.7 change, delete or otherwise obliterate copyright notices, trademarks and commercial descriptions as well as all other notices (e.g. legal notices) contained in the Licensed Software.
5.8 Any Use of the Licensed Software beyond the agreed License requires an express separate agree-ment between the Parties before Licensee is entitled to make an extended Use of the Licensed Soft-ware.
6.1 Only an electronic version of the Documentation for the Licensed Software will be made available to Licensee. The Documentation is accessible on the Website. There is no duty to supply any Documen-tation in hardcopy form.
6.2 Representations in the Documentation are not considered to be a certain quality guaranteed by vi:sit.
7.1 The license fees for the Licensed Software which are due for each Subscription Term and depend on the chosen License Plan are specified on the Website. All prices shown on the Website are net prices excluding applicable VAT (if any). Any taxes, duties or other dues originating from the sphere of Li-censee shall be borne by Licensee.
7.2 The method of payment is set out in the course of the Purchase process. Invoices together with the certification of the Purchased License and License Plan will be transmitted electronically to the e-mail address submitted by Licensee or via download on the Website, as the case may be.
7.3 The License Key for the respective Subscription Term will be sent to the e-mail address submitted by Licensee after vi:sit’s receipt of payment of the license fee.
7.4 Only counterclaims that are undisputed or reduced to final non-appealable judgment may be set-off against any receivables held by vi:sit. Licensee may enforce a right to withhold counter-performance only on the basis of claims that are undisputed or reduced to final non-appealable judgment and that are based on the same contractual relationship.
8.1 If a Defect exists or arises during the Subscription Term, then vi:sit shall remedy the Defect. Instead of remedying the Defect, vi:sit has the option to supply a conforming (non-defective) item of the Li-censed Software unless Licensee cannot reasonably be expected to accept this.
8.2 Licensee shall grant vi:sit a reasonable grace period in order to conduct the remedy. If the remedy fails, Licensee shall, according to the statutory provisions, be entitled to extraordinarily terminate the EULA concerned for good cause and without notice.
8.3 Other than the warranty agreed in Sections 8.1 and 8.2, vi:sit provides no warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability or fitness for a particular pur-pose. The disclaimer set forth in this Section 8.3 applies except to the extent applicable law does not permit this disclaimer.
8.4 No warranty will be incurred, if
8.4.1 the Licensed Software has been modified by someone other than vi:sit or one of its authorized agents, or
8.4.2 the Licensed Software is used in a system environment other than Microsoft Windows as stated in the Documentation.
8.5 To the extent Licensee caused the infringement of Intellectual Property Rights itself, claims for de-fects of title against vi:sit are excluded.
9.1 Licensee shall without undue delay inform vi:sit of any noticed Defect, specifying the nature of the error and the program execution in which the error occurs. Such notification must also be in writing if vi:sit so requires. If the Defect is a defect in title, Licensee must notify vi:sit in writing without undue delay and Licensee shall inform vi:sit of any claims asserted in connection with the infringements of intellectual property rights.
9.2 Licensee shall gratuitously provide reasonable assistance to vi:sit in connection with localizing and correcting the Defect. In particular, Licensee shall make available all data, information and files nec-essary for correction of the error.
9.3 A precondition for warranty based on a defect in title is that (a) Licensee without undue delay informs vi:sit in writing of any third party claims based on an Intellectual Property Rights infringement, (b) that Licensee does not recognize the alleged infringement, and (c) that Licensee conducts any dispute (in-cluding any out-of-court settlement) only with the consent of vi:sit. If Licensee discontinues Using the Licensed Software in order to mitigate damages or for some other reasons, then Licensee shall notify the allegedly infringed third party that any such discontinuation of Use shall not be deemed a recogni-tion or admission of the alleged intellectual property rights infringement. In the event of an unauthor-ized recognition or admission or a failure to provide the aforementioned notice, a claim for damages or reimbursement of wasted expenditures, to which Licensee is entitled, if any, will be reduced by the amount of detriment that vi:sit suffers as a result of the unauthorized recognition or failed notice.
10.1 The following shall apply to the liability of vi:sit and to the personal liability of its employees and aux-iliary persons consulted - irrespective of the legal grounds:
10.2 vi:sit shall be liable in accordance with the statutory provisions for any intentional acts or omissions, fraud, personal injury, product liability according to the Swiss Product Liability Act (PrHG) and the lack of a certain quality guaranteed by vi:sit.
10.3 In the event of slight / ordinary negligence, vi:sit shall be liable for any and all damages caused dur-ing a given Subscription Term up to the amount of the license fees paid by Licensee for the Licensed Software for such given Subscription Term.
10.4 Otherwise, liability for slight / ordinary negligence is excluded. In particular, vi:sit is not liable for any loss and damages caused by or connected to (a) deficient unit tests created with the Licensed Soft-ware and (b) errors in the code of the software that was tested on the basis of unit tests created with the Licensed Software.
10.5 In the event vi:sit is liable, Licensee's contributory fault must be reasonably taken into consideration, including insufficient error reports or insufficient data backup, insufficient protection against damag-ing programs (computer viruses, Trojan horses, spyware, ransomware, etc.) or a lack of precautionary measures to safeguard information security.
10.6 The liability limitation agreed to under this section 10 also applies in favor of vi:sit’s statutory repre-sentatives and employees. However, vi:sit’s liability for auxiliary persons consulted by vi:sit is ex-cluded.
10.7 Any liability claims of Licensee that are more extensive than those expressly stated in this section 10 are excluded and disclaimed. The foregoing also applies, above all, to liability that is not based on fault.
vi:sit may publicize the fact that Licensee Uses its software. vi:sit is therefore authorized to report in-ternally and externally about its business relations with Licensee subject to the usual duties of confi-dentiality. The aforesaid right includes, for example, press releases, success stories, project reports and presentations together with any naming of Licensee. Each publication must be structured and de-signed such that it does not infringe any of Licensee’s rights. Notwithstanding the foregoing, Licen-see may withdraw from the aforesaid authorization at any time. The withdrawal of the authorization shall not affect the lawfulness of vi:sit’s publications and reportings based on the above authorization before the withdrawal.
12.1 This EULA constitutes the entire arrangement and understanding between the Parties and supersedes any prior arrangement and understanding between the Parties. This EULA may be modified or amend-ed only by written instrument executed by a duly authorized officer of the Parties.
12.2 Place of performance is Basel.
12.3 Other than as specifically provided for herein, this EULA may not be assigned in whole or in part by either Party except with prior written consent of the other Party.
12.4 If any provision of this EULA or part thereof should be or becomes invalid or unenforceable or vio-lates any applicable law, this EULA is to be considered severable as to such provision and such pro-vision is to be deleted from this EULA. In such case the remainder of this EULA shall be deemed val-id and binding as if such provision was not included herein and the Parties shall agree upon any nec-essary and reasonable adjustments in order to secure the vital interests of the Parties. The latter ap-plies also in cases where in performing the EULA an omission or contractual gap becomes apparent.
12.5 The failure by one Party at any time to require performance by the other Party or to claim a breach of any provision of this EULA will not be construed as a waiver of any right accruing under this EULA, nor will it affect any subsequent breach or the effectiveness of this EULA or any part hereof, or prej-udice any Party as regards any subsequent action.
12.6 This EULA is governed by the laws of the Swiss Confederation to the exclusion of the conflict of laws principles and of the UN Sales Convention (Convention on Contracts for the International Sale of Goods of 11 April 1980).
12.7 Exclusive jurisdiction and venue for all disputes arising from or connected with this EULA shall lie with the courts of the city of Basel, Switzerland.
Provided that the Licensee has Purchased the License under the Business-Plan as part of the present EULA, the following scope of Use and support services is included during the active Subscription Term:
Provided that the Licensee has Purchased the License under the Enterprise-Plan as part of the pre-sent EULA, the following scope of Use and support services is included during the active Subscrip-tion Term: