Traeger Software License Agreement

TRAEGER GMBH INDUSTRY COMPONENTS (“TRAEGER” or “Licensor”), with its principal place of business at Söllnerstraße 9, 92637 Weiden i.d. OPf., Germany (“Licensor”), IS WILLING TO LICENSE THE ACCOMPANYING SOFTWARE, THE ASSOCIATED DOCUMENTATION INCLUDING AUTHORIZED COPIES (“SOFTWARE”) TO THE LICENSEE (“LICENSEE”) ONLY ON THE CONDITION THAT THE LICENSEE ACCEPTS ALL OF THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”).

THE LICENSED SOFTWARE IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS BY OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. THE LICENSED SOFTWARE IS LICENSED, NOT SOLD. TRAEGER SHALL OWN ALL RIGHT, TITLE AND INTEREST, INCLUDING THE INTELLECTUAL PROPERTY RIGHTS, IN AND TO THE INFORMATION ON BUG FIXES OR ERROR CORRECTIONS RELATING TO THE LICENSED SOFTWARE THAT THE LICENSEE SUBMITS TO TRAEGER, AS WELL AS ALL INTELLECTUAL PROPERTY RIGHTS IN THE CORRECTION OF ANY ERRORS. Intellectual property rights include the appearance, the manner of use, the types of function calls, the interface structures and the structure of the classes provided by the Software.

TRAEGER abides by the applicable legal and regulatory requirements which prohibit discrimination against individuals based on their ethnic origin, gender, religion or belief, disability, age or sexual identity.

PLEASE READ THE TERMS CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE. BY INSTALLING OR USING THE SOFTWARE, THE LICENSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD THIS AGREEMENT AND AGREES TO BE BOUND BY THESE TERMS. THE LICENSEE HEREBY UNCONDITIONALLY ACCEPTS BEING BOUND BY THE LICENSOR’S GENERAL TERMS AND CONDITIONS. THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE ON WHICH THE SOFTWARE WAS FIRST DELIVERED TO THE LICENSEE OR FIRST DOWNLOADED AND/OR USED BY THE LICENSEE, AT THE LATEST THE DATE OF FULL EXECUTION BY BOTH PARTIES.

IF THE LICENSEE DOES NOT ACCEPT THESE LICENSE TERMS, TRAEGER DOES NOT GRANT ANY LICENSE TO THE SOFTWARE, AND THE LICENSEE MUST NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.

1. Grant of License

1.1 Evaluation License

If the Licensee has downloaded a trial or evaluation version of the Software from TRAEGER’s website or obtained it by other means, the Licensee may install and use the Software solely for evaluation and testing purposes during the evaluation period. The Licensor may grant the Licensee extended Evaluation Licenses; their purpose and use are the same as those of the initial Evaluation License. The Licensee may not use the Software for commercial purposes. The Software may contain a disabling mechanism that prevents its use after the evaluation period has expired. The Licensee must not tamper with the disabling mechanism or the Software.

1.2 Single Developer License

The Licensor hereby grants to the Licensee a paid-up, perpetual, simple (non-exclusive), irrevocable¹ and non-transferable Single Developer License to use the Software for the purpose of software development of an unlimited quantity of products or applications enabled using the mechanisms/protocols the Software provides. If the Licensee has purchased a Single Developer License, the Software may be used within its organization by a single developer (hereinafter the “Developer”) to develop applications. The Developer is the only person in the Licensee’s organization authorized to use the Software for software development and is named in this Agreement.

The use of the Software by more than one developer at different locations requires the purchase of a Single Developer License for each of these developers. For developers working at or for the same location, the purchase of a Branch License is required.

The Software may exist on multiple computers² as long as it is used solely by the same Developer. In addition, the Licensee is permitted to deploy the application developed using the Software. The Software may be used by being compiled into, linked to or bound to the Licensee’s application. All use of the Software shall be solely in accordance with the documentation.

The Licensee is not allowed to resell, rent, lease or sublicense an unmodified, modified, disassembled, decompiled or reverse-engineered (in any manner) version of this Software, either partially or entirely, as a stand-alone product, nor to build toolkits or developer tools from it. The Licensee is permitted to use the Software to build, load, execute, test, deploy, sell and distribute an unlimited quantity of end-user products used by the Licensee or the Licensee’s customers.

The Licensee must comply with the following conditions:

• The Licensee is permitted to distribute the applications built with the Software only in conjunction with and as an integral part of its application and to distribute the binary files only as an integral part of its end-user application. Any third-party components and their respective redistributables are licensed to the Licensee “as is”. The Licensee must comply with their respective license terms. To the extent that any such components are disclosed and licensed to the Licensee “as is”, TRAEGER discloses these licenses to the Licensee. The provisions on FOSS are set out in Section 2.5 (“Free and Open-Source Software”).
• The Licensee’s software products are not development tools; the Licensee may not use the Software in such a way that results in the development of products that directly or indirectly expose functionality similar to that of the licensed Software itself (e.g., the Licensee may distribute libraries of the Software together with its application, but not the corresponding, separate documentation files). For such applications, the Licensor and the Licensee must enter into a separate license agreement.
• The Licensee’s applications must add primary and substantial functionality to the licensed Software; applications may not pass on functionality which in a simple way makes it possible for third parties to create software with the licensed Software (e.g., building products by simplifying the Software’s interface version or by wrapping for platform/language adoption is prohibited).
• The Licensee shall indemnify and hold harmless TRAEGER, its affiliates, contractors and suppliers from and against any third-party claims or liabilities arising out of the use, reproduction or distribution of applications to the extent such claim or liability is not based on a defect or intellectual property infringement of the licensed Software itself.
• The Licensee may not use TRAEGER’s name, logo or trademarks to market its application unless there is an explicit written agreement with TRAEGER.
• The Licensee must include a valid copyright notice on its software products.

1.3 Branch License

A paid-up, perpetual, simple (non-exclusive), irrevocable³ and non-transferable Branch License grants the use of the Software for the purpose of software development of an unlimited quantity of products or applications enabled using the mechanisms/protocols the Software provides. If the Licensee has purchased a Branch License, the Software may be used within its organization at a single location to develop applications. The developers at this location are the only persons in the Licensee’s organization authorized to use the Software for software development, and the location is named in this Agreement.

The use of the Software by developers at other locations requires the purchase of an additional Branch License for each of these locations. For developers working at or for the same location, no purchase of an additional Branch License is required.

The Software may exist on multiple computers⁴ as long as it is used solely by the employees of the same location. In addition, the Licensee is permitted to deploy the application developed using the Software. The Software may be used by being compiled into, linked to or bound to the Licensee’s application. All use of the Software shall be solely in accordance with the documentation.

The Licensee is not allowed to resell, rent, lease or sublicense an unmodified, modified, disassembled, decompiled or reverse-engineered (in any manner) version of this Software, either partially or entirely, as a stand-alone product, nor to build toolkits or developer tools from it. The Licensee is permitted to use the Software to build, load, execute, test, deploy, sell and distribute an unlimited quantity of end-user products used by the Licensee or the Licensee’s customers.

The Licensee must comply with the following conditions:

• The Licensee is permitted to distribute the applications built with the Software only in conjunction with and as an integral part of its application and to distribute the binary files only as an integral part of its end-user application. Any third-party components and their respective redistributables are licensed to the Licensee “as is”. The Licensee must comply with their respective license terms. To the extent that any such components are disclosed and licensed to the Licensee “as is”, TRAEGER discloses these licenses to the Licensee. The provisions on FOSS are set out in Section 2.5 (“Free and Open-Source Software”).
• The Licensee’s software products are not development tools; the Licensee may not use the Software in such a way that results in the development of products that directly or indirectly expose functionality similar to that of the licensed Software itself (e.g., the Licensee may distribute libraries of the Software together with its application, but not the corresponding, separate documentation files). For such applications, the Licensor and the Licensee must enter into a separate license agreement.
• The Licensee’s applications must add primary and substantial functionality to the licensed Software; applications may not pass on functionality which in a simple way makes it possible for third parties to create software with the licensed Software (e.g., building products by simplifying the Software’s interface version or by wrapping for platform/language adoption is prohibited).
• The Licensee shall indemnify and hold harmless TRAEGER and its affiliates from and against any third-party claims or liabilities arising out of the use, reproduction or distribution of applications to the extent such claim or liability is not based on a defect or intellectual property infringement of the licensed Software itself.
• The Licensee may not use TRAEGER’s name, logo or trademarks to market its application unless there is an explicit written agreement with TRAEGER.
• The Licensee must include a valid copyright notice on its software products.

1.4 Group License

A paid-up, perpetual, simple (non-exclusive), irrevocable⁵ and non-transferable Group License grants the use of the Software for the purpose of software development of an unlimited quantity of products or applications enabled using the mechanisms/protocols the Software provides. If the Licensee has purchased a Group License, the Software may be used within its organization at a limited number of locations with working groups belonging to the same division (hereinafter the “Group”) to develop applications. The developers of these working groups are the only persons in the Licensee’s organization authorized to use the Software for software development, and the contact person responsible for monitoring the use of the license is named, together with their location, in this Agreement.

The Licensee’s contact person is obligated to keep the Licensor updated regarding the locations belonging to the same division. These updates shall be made as informal, unprompted emails every second year (after delivery of the license) to license@traeger.de with a list of the locations with working groups belonging to the same division.

The use of the Software by developers in a different group or at an additional number of locations requires the purchase of an additional/enhanced Group License for each of them. For developers working in or for the same Group, no purchase of an additional Group License is required.

The Software may exist on multiple computers⁶ as long as it is used solely by the employees of the same Group. In addition, the Licensee is permitted to deploy the application developed using the Software. The Software may be used by being compiled into, linked to or bound to the Licensee’s application. All use of the Software shall be solely in accordance with the documentation.

The Licensee is not allowed to resell, rent, lease or sublicense an unmodified, modified, disassembled, decompiled or reverse-engineered (in any manner) version of this Software, either partially or entirely, as a stand-alone product, nor to build toolkits or developer tools from it. The Licensee is permitted to use the Software to build, load, execute, test, deploy, sell and distribute an unlimited quantity of end-user products used by the Licensee or the Licensee’s customers.

The Licensee must comply with the following conditions:

• The Licensee is permitted to distribute the applications built with the Software only in conjunction with and as an integral part of its application and to distribute the binary files only as an integral part of its end-user application. Any third-party components and their respective redistributables are licensed to the Licensee “as is”. The Licensee must comply with their respective license terms. To the extent that any such components are disclosed and licensed to the Licensee “as is”, TRAEGER discloses these licenses to the Licensee. The provisions on FOSS are set out in Section 2.5 (“Free and Open-Source Software”).
• The Licensee’s software products are not development tools; the Licensee may not use the Software in such a way that results in the development of products that directly or indirectly expose functionality similar to that of the licensed Software itself (e.g., the Licensee may distribute libraries of the Software together with its application, but not the corresponding, separate documentation files). For such applications, the Licensor and the Licensee must enter into a separate license agreement.
• The Licensee’s applications must add primary and substantial functionality to the licensed Software; applications may not pass on functionality which in a simple way makes it possible for third parties to create software with the licensed Software (e.g., building products by simplifying the Software’s interface version or by wrapping for platform/language adoption is prohibited).
• The Licensee shall indemnify and hold harmless TRAEGER and its affiliates from and against any third-party claims or liabilities arising out of the use, reproduction or distribution of applications to the extent such claim or liability is not based on a defect or intellectual property infringement of the licensed Software itself.
• The Licensee may not use TRAEGER’s name, logo or trademarks to market its application unless there is an explicit written agreement with TRAEGER.
• The Licensee must include a valid copyright notice on its software products.

1.5 Enterprise License

A paid-up, time-limited, simple (non-exclusive), irrevocable⁷ and non-transferable Enterprise License grants the use of the Software for the purpose of software development of an unlimited quantity of products or applications enabled using the mechanisms/protocols the Software provides. Enterprise Licenses are offered exclusively as Subscription Licenses (clause C. 4.3.4 of the GTC). If the Licensee has purchased an Enterprise License, the Software may be used within its organization at a limited number of (at least three) locations to develop applications. The developers at these locations are the only persons in the Licensee’s organization authorized to use the Software for software development, and the contact person responsible for monitoring the use of the license is named, together with their location, in this Agreement. The Enterprise License may also be used by wholly owned subsidiaries of the Licensee.

The Licensee’s contact person is obligated to keep the Licensor updated regarding the locations using the Enterprise License. These updates shall be made as informal, unprompted emails every second year (after delivery of the license) to license@traeger.de with a list of the organization’s locations, including wholly owned subsidiaries, that use the license.

The use of the Software by developers at an additional number of locations requires the purchase of an additional/enhanced Enterprise License for each of them. For developers working at or for an already licensed location, no purchase of an additional Enterprise License is required.

The Software may exist on multiple computers⁸ as long as it is used solely by the employees at or for already licensed locations. In addition, the Licensee is permitted to deploy the application developed using the Software. The Software may be used by being compiled into, linked to or bound to the Licensee’s application. All use of the Software shall be solely in accordance with the documentation.

The Licensee is not allowed to resell, rent, lease or sublicense an unmodified, modified, disassembled, decompiled or reverse-engineered (in any manner) version of this Software, either partially or entirely, as a stand-alone product, nor to build toolkits or developer tools from it. The Licensee is permitted to use the Software to build, load, execute, test, deploy, sell and distribute an unlimited quantity of end-user products used by the Licensee or the Licensee’s customers.

The Licensee must comply with the following conditions:

• The Licensee is permitted to distribute the applications built with the Software only in conjunction with and as an integral part of its application and to distribute the binary files only as an integral part of its end-user application. Any third-party components and their respective redistributables are licensed to the Licensee “as is”. The Licensee must comply with their respective license terms. To the extent that any such components are disclosed and licensed to the Licensee “as is”, TRAEGER discloses these licenses to the Licensee. The provisions on FOSS are set out in Section 2.5 (“Free and Open-Source Software”).
• The Licensee’s software products are not development tools; the Licensee may not use the Software in such a way that results in the development of products that directly or indirectly expose functionality similar to that of the licensed Software itself (e.g., the Licensee may distribute libraries of the Software together with its application, but not the corresponding, separate documentation files). For such applications, the Licensor and the Licensee must enter into a separate license agreement.
• The Licensee’s applications must add primary and substantial functionality to the licensed Software; applications may not pass on functionality which in a simple way makes it possible for third parties to create software with the licensed Software (e.g., building products by simplifying the Software’s interface version or by wrapping for platform/language adoption is prohibited).
• The Licensee shall indemnify and hold harmless TRAEGER and its affiliates from and against any third-party claims or liabilities arising out of the use, reproduction or distribution of applications to the extent such claim or liability is not based on a defect or intellectual property infringement of the licensed Software itself.
• The Licensee may not use TRAEGER’s name, logo or trademarks to market its application unless there is an explicit written agreement with TRAEGER.
• The Licensee must include a valid copyright notice on its software products.

1.6 Education License

A paid-up, annually renewed, simple (non-exclusive), irrevocable⁹ and non-transferable Education License grants the use of the Software for the purpose of software development of an unlimited quantity of products or applications enabled using the mechanisms/protocols the Software provides. If the Licensee has purchased an Education License, the Software may be used within its organization at a single educational facility (hereinafter the “Facility”) to develop applications. The developers at the location of the Facility are the only persons in the Licensee’s organization authorized to use the Software for software development, and the Facility is named in this Agreement.

The use of the Software by developers at other locations requires the purchase of an additional Education License for each of these locations. For developers working at or for the same Facility, no purchase of an additional Education License is required.

The Software may exist on multiple computers¹⁰ as long as it is used solely by the persons of the same Facility. In addition, the Licensee is permitted to deploy the application developed using the Software within the same Facility. The Software may be used by being compiled into, linked to or bound to the Licensee’s application. All use of the Software shall be solely in accordance with the documentation.

The Licensee is not allowed to resell, rent, lease or sublicense an unmodified, modified, disassembled, decompiled or reverse-engineered (in any manner) version of this Software, either partially or entirely, as a stand-alone product, nor to build toolkits or developer tools from it. The Licensee is permitted to use the Software to build, load, execute, test, deploy and distribute an unlimited quantity of end-user products used at the Licensee’s Facility for non-commercial purposes.

The Licensee must comply with the following conditions:

• The Licensee is permitted to distribute the applications built with the Software only in conjunction with and as an integral part of its application and to distribute the binary files only as an integral part of its end-user application. Any third-party components and their respective redistributables are licensed to the Licensee “as is”. The Licensee must comply with their respective license terms.
• The Licensee’s software products are not development tools; the Licensee may not use the Software in such a way that results in the development of products that directly or indirectly expose functionality similar to that of the licensed Software itself (e.g., the Licensee may distribute libraries of the Software together with its application, but not the corresponding, separate documentation files). For such applications, the Licensor and the Licensee must enter into a separate license agreement.
• The Licensee’s applications must add primary and substantial functionality to the licensed Software; applications may not pass on functionality which in a simple way makes it possible for third parties to create software with the licensed Software (e.g., building products by simplifying the Software’s interface version or by wrapping for platform/language adoption is prohibited).
• The Licensee shall indemnify and hold harmless TRAEGER, its affiliates, contractors and suppliers from and against any third-party claims or liabilities arising out of the use, reproduction or distribution of applications to the extent such claim or liability is not based on a defect or intellectual property infringement of the licensed Software itself.
• The Licensee may not use TRAEGER’s name, logo or trademarks to market its application unless there is an explicit written agreement with TRAEGER.
• The Licensee must include a valid copyright notice on its software products.

2. Assignment

2.1 Authorization of Usage

The Licensee acknowledges that TRAEGER is the sole owner of all rights in the Software and of all know-how pertaining to this Software, except for third-party components. The Licensee shall not attack the rights of TRAEGER unless TRAEGER asserts such rights against the Licensee or the Licensee attacks a patent or patent application (or similar patent-related rights such as utility models) of TRAEGER. The Licensee will adequately inform third parties of TRAEGER’s ownership of these rights.

The Licensee shall only be granted a limited right of usage to the extent absolutely necessary for the purposes of this Agreement. The following provisions specify this principle and shall be narrowly construed in cases of doubt. TRAEGER’s copyright in the Software shall not be exhausted by this Agreement. Nothing in this provision shall be construed so as to prevent the Licensee from asserting its rights in the event that TRAEGER infringes the Licensee’s patents, trademarks or copyrights or misappropriates the Licensee’s trade secrets.

The Software may not be leased, assigned or sublicensed, in whole or in part, unless and to the extent expressly permitted in Section 1 (“Grant of License”). The Licensee may not make the Software accessible to third parties and must ensure that no one except its authorized Licensees has access to the computers on which the Software is installed.

2.2 Transfer of Use Authorization

Upon written request by the Licensee and with the prior authorization of TRAEGER, the Licensee may transfer the developer license granted under Section 1.2 to a new developer. The Licensee’s request must state the name, email address and phone number of the new developer at the Licensee’s postal address as well as the reason for the requested transfer. The Licensee must ensure that the new developer uses the Software in compliance with all provisions of this Software License Agreement. The previous developer’s rights to use the Software shall cease upon TRAEGER’s consent to the transfer. TRAEGER reserves the right to refuse such a transfer for good cause. Written consent shall not be unreasonably withheld, i.e., a transfer to a developer working for another organization constitutes a reasonable ground for refusal.

2.3 Temporary Transfer of Use Authorization

Upon written request by the Licensee and with the prior authorization of TRAEGER, the Licensee may temporarily transfer the developer license granted under Section 1.2 to another developer or to a subcontractor. The Licensee’s request must state the name, email address, phone number and full company postal address of the new developer as well as the reason for the requested transfer. Only temporarily and for a particular contracted development project, for the development of a component or product of the Licensee, the Licensee may give an external participant in this particular development project access to the Software. The Licensee must ensure that the external development partner complies with all provisions of this Software License Agreement and does not use the Software for any purpose other than this particular development project with the Licensee. The previous developer’s rights to use the Software shall cease upon TRAEGER’s consent to the transfer. TRAEGER reserves the right to refuse such a transfer for good cause. Written consent shall not be unreasonably withheld, i.e., a transfer to a direct competitor of TRAEGER constitutes a reasonable ground for refusal.

2.4 Scope of Usage

The Software is “in use” on a computer when it is loaded into temporary memory (i.e., RAM) or installed into permanent memory (e.g., hard disk, CD-ROM or other storage device) of that computer, except that a copy installed on a network server for the sole purpose of distribution to other computers is not deemed to be “in use”.

The Licensee is obligated to maintain accurate records documenting the number of developers, including the place of installation and the place from which the Licensee’s developers use the Software or employ it for software development. The Licensee will submit these records to TRAEGER on request.

2.5 Free and Open-Source Software (FOSS)

The Software may include components which are part of a third-party Free and Open-Source Software (FOSS). This means any software whose underlying license is officially recognized by either the Free Software Foundation or the Open Source Initiative; typical examples are the GNU General Public License (GPL), the BSD 3-Clause License or the MIT License. The licensed Software has technical dependencies on the FOSS components delivered, without which it cannot (partially) be used as intended.

If any FOSS component is subject to a copyleft license, TRAEGER will disclose the associated source code based on the Licensee’s license and depending on the use and redistribution; typical examples are the GNU Affero General Public License (AGPL), the GNU General Public License (GPL), the GNU Lesser General Public License (LGPL), the Eclipse Public License (EPL) or the Mozilla Public License (MPL).

The Licensor obligates itself vis-à-vis the Licensee to enable the Licensee to use the FOSS components used in the Software in accordance with the respective license terms and the individual contractual terms between the parties. The Licensor thereby ensures that the Licensee may sell and redistribute the provided FOSS components as part of the Software within its own products and services to third parties without restriction and free from defects of title. The Licensee itself is responsible for the FOSS-compliant transfer of the FOSS components to third parties.

To comply with the FOSS components used, the Licensor provides a complete and accurate listing of all included FOSS in human- and machine-readable formats. For this purpose, documents in the formats PDF and SPDX are provided in the downloads section and as part of the archive download of the Software. For each FOSS component included, the listing provides the name and unique version number, the applicable license(s), the copyright notice(s), a copy of the full license text and the URL from which the component was obtained.

If any FOSS is a copyleft component, the complete and corresponding source code, including any compilation and installation notes for the component, an explanation of the technical integration of the component (e.g., full embedding, linking, API usage, independent execution) and a notice of any modifications to the original source code of the component are provided by the Licensor to the Licensee in the downloads section and as part of the archive download of the Software.

3. Software

3.1 Artifacts and Resources

The Software includes artifacts and resources, which can be binary files, text files and archive files. The use and purpose of the files depend on the type of file and on the development environment and/or programming language used by the Licensee’s developer(s). The product-dependent artifacts and resources provided as the Software to which this License belongs include, but are not limited to: Library (LIB) files, Dynamic Link Library (DLL) files, Executable (EXE) files, Type Library (TLB) files, Object (O, OBJ) files, Interface Definition (IDL) files, Header (H) files, Code (C, CS, VB) files, Dependency (DEPS.JSON) files, Configuration (CONFIG, JSON) files, Compiled Help (CHM) files, Editor Documentation (XML) files, Portable Document (PDF) files, Markdown (MD) files, Archive (ZIP, RAR, 7Z, NUPKG) files, Self-Extracting (EXE) files and Installer (MSI, SETUP) files. Software modules and any related printed, electronic and online documentation, samples and any other files accompanying the Software are additional resources of the Software.

3.2 Redistributables

The Licensee agrees that the Software is distributed in accordance with the terms of this Agreement and that redistributable files therefore only comprise binary files and accompanying files required for the binary files to be executed. The binary redistributables include, but are not limited to: Dynamic Link Library (DLL) files, Type Library (TLB) files and Executable (EXE) files, while the accompanying files are Dependency (DEPS.JSON) files and Configuration (CONFIG, JSON) files. Every file redistributable by the Licensee is intended to be part of the application developed by the Licensee’s developer(s), without which the resulting application(s) would not be executable within the meaning of this Agreement.

Any file required for the development of the Licensee’s resulting application(s) may only be redistributed as a compiled, linked and embedded part/resource of the Licensee’s product. It is the Licensee’s responsibility to ensure that these files are neither exposed nor exportable through its product to third parties in any way. Any license required for the resulting application(s) shall be shipped as an embedded and secured part of the application in accordance with this Agreement.

3.3 Non-Redistributables

In accordance with this Agreement, the Licensee is not permitted to redistribute any other files that are not required for the execution of the Licensee’s application(s) within the meaning of this Agreement. The non-redistributables include, but are not limited to: Library (LIB) files, Object (O, OBJ) files, Interface Definition (IDL) files, Header (H) files, Code (C, CS, VB) files, Compiled Help (CHM) files, Editor Documentation (XML) files, Portable Document (PDF) files, Markdown (MD) files, Archive (ZIP, RAR, 7Z, NUPKG) files, Self-Extracting (EXE) files and Installer (MSI, SETUP) files.

The license key supplied to enable the use of the Software shall be treated as confidential in accordance with this Agreement and must not be transmitted in any way to other parties/locations that are not expressly named in this Agreement.

3.4 Documentation

As part of the Software, the Licensor provides documentation which includes, but is not limited to: offline documentation such as Compiled Help (CHM) files, Editor Documentation (XML), Portable Document (PDF) files, Markdown (MD) files; online documentation such as websites, screenshots, videos, sample configurations, code samples and code snippets in the programming language(s) chosen by the Licensor. The Licensee hereby agrees that the code snippets and code samples provided are provided by the Licensor “as is” without any promise regarding their accuracy and correctness, in particular in productive environments, and neither establish nor document any claim to completeness regarding the functionality offered by the Software (in the future).

4. Restrictions

4.1 Critical Usage

Without prejudice to any other provisions of this Agreement, the Licensee shall indemnify, hold harmless and defend TRAEGER and its suppliers and their respective officers, directors, employees and agents (each an “Indemnified Party”) from and against any damages, fines, penalties, assessments, liabilities, costs and expenses (including reasonable attorneys’ fees and costs) in the event that any claim is brought against any Indemnified Party arising from the Licensee’s use of the Software in safety-critical systems, including but not limited to nuclear facilities, aircraft communication and aircraft control systems or other situations in which a failure of the Software could lead to death or personal injury.

The Licensee agrees not to use the Software in life-critical and environmentally critical applications, including but not limited to the Licensee’s production of weapons, in applications which might cause damage to water, air, soil, forests or other, or in which a harmful impact on life and the environment is or becomes part of the use of the Software.

4.2 Intellectual Property

The Software is confidential, copyrighted information of TRAEGER, and title to all copies is retained by TRAEGER and/or its licensors. The Licensee shall in no event disassemble, decompile, decrypt, extract, or otherwise reverse engineer (in any manner by means of currently available or future technologies) the Software or confidential information (as defined in Section 9.3 “Non-Disclosure”) or permit third parties to do so. Disassembling, decompiling, decrypting, extracting, and reverse engineering include in particular:

• converting the Software from a machine-readable form into a human-readable form
• disassembling or decompiling the Software by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof
• examining the machine-readable object code that controls the operation of the Software and creating the original source code or any approximation thereof by, for example, studying the behavior of the Software in response to various inputs
• performing any other activities related to the Software that could be construed as reverse engineering, disassembling, or decompiling. To the extent any such activity may be permitted pursuant to a written agreement, the results thereof shall be deemed confidential information subject to the requirements of this Agreement. The Licensee may use the Licensor’s confidential information solely in connection with the Software and in accordance with the terms of this Agreement.

These conditions apply equally to the purpose of error correction, any scientific purpose, or the purpose of understanding by the Licensee and other parties using the Software.

4.3 Property Protection

The Licensee agrees not to alter, destroy, or otherwise remove any proprietary notices or labels located on or embedded in the Software. The Software is provided with a unique serial number which enables the Licensor to track the copies of the Software. Using the information in the License (license type, name, address and contact details of the Licensee), the Licensor can trace a copy of the Software back to the Licensee from which the copy of the Software or the License originates.

4.4 Trademarks and Logos

This Agreement does not authorize the Licensee to use any names, trademarks, or logos of TRAEGER.

4.5 Ownership of Developed Products

Any program, application, or other software solution developed by the Licensee using the Software shall be considered a “Product” within the meaning of this Agreement.

The Licensee retains full ownership, including all intellectual property rights, in and to all Products developed using the Software provided under this Agreement. The Software itself, including any underlying components, frameworks, or libraries, remains the intellectual property of the Licensor.

This Agreement does not grant the Licensee any rights to distribute, sublicense, or otherwise make available the Software or any parts thereof in a manner that competes with the original Software, unless explicitly permitted under a separate agreement.

5. Warranties

5.1 Warranty of Licensor

TRAEGER represents and warrants that:

• TRAEGER has the unrestricted right to grant the licenses granted in this Agreement,
• TRAEGER owns and holds all right, title, and interest in and to the Software and any and all copyrights and other intellectual property rights existing therein,
• TRAEGER has not granted any conflicting rights, and no contractual duty toward third parties will be breached by entering into this Agreement,
• the Software does not infringe any intellectual property rights of third parties and, where third-party components are used in the Software, TRAEGER has and the Licensee will have all necessary rights and permissions to use these components,
• TRAEGER complies with, and conducts its operations in accordance with, the applicable laws, regulations, codes, ordinances and similar governmental directives of the Federal Republic of Germany and the European Union,
• the Software does not contain any harmful code,
• the Software will not be infected with a virus when it is shipped to the Licensee.

The foregoing representation and warranty shall be deemed to be made as of the date of delivery and installation of the Software and as of the date of delivery and installation of any updates and shall survive delivery and installation of the Software and termination of this Agreement.

The Licensor warrants that the Software does not require an export license, and if an export license becomes required after the effective date, TRAEGER will notify the Licensee in writing without undue delay.

As soon as the Licensor becomes aware of any specific, alleged, threatened or actual legal claim of violation of or non-compliance with the applicable license terms, license incompatibility or similar facts relating to the Software and/or the FOSS components included in the Software that the Licensee has received, the Licensor will notify the Licensee thereof without undue delay.

If the Licensor or the Licensee becomes aware of a legal claim by a third party relating to a FOSS component used, the Licensor undertakes to remedy the situation without undue delay at its own expense and to ensure the trouble-free and uninterrupted use of the Software in accordance with the License Terms vis-à-vis the Licensee and third parties associated with the Licensee.

TRAEGER will indemnify the Licensee and third parties associated with the Licensee against any claims for damages in the event of violations of the above provisions regarding the use of the Software and the FOSS components included in and used by the Software (indemnification obligation).

The Licensor confirms and warrants that the included FOSS components are regularly checked for security vulnerabilities (e.g., CVEs) prior to delivery and throughout the entire lifecycle and that any resulting hazards are assessed. If the Licensor identifies relevant security vulnerabilities, the Licensor will inform the Licensee thereof as soon as possible, as well as of the handling of the security vulnerability chosen by TRAEGER, stating the reasons.

5.2 Warranty of Non-Impairment

The Licensor agrees that, in the event of any dispute with the Licensee regarding an alleged breach of this Agreement, it shall not use any electronic means to prevent or interfere with the Licensee’s use of the Software without first obtaining a valid court order authorizing same. The Licensor shall give the Licensee prior written notice and an opportunity to be heard in connection with any request for such a court order. The Licensor acknowledges and agrees that a breach of this provision may cause substantial harm to the Licensee and to numerous third parties having business relationships with the Licensee and that such harm is foreseeable.

The Licensee agrees that certain measures or restrictions are integrated into the Software to ensure compliance with the conditions of use defined in this Agreement according to the purchased License, including hardware- and software-based mechanisms. These mechanisms include the activation logic of License features/options by means of a software key (the “License Key”) or a hardware key (the “Dongle”). Each of these mechanisms may perform hardware and usage validations to ensure compliance with the conditions of use. The Licensor warrants that the results of the validations will be used solely to deactivate the non-licensed features/options, without using any mechanisms that hinder or will hinder the Licensee’s freedom to use or physically and electronically transport the Software within its computing facilities.

5.3 Warranty Exclusions

The Software has been carefully developed and tested by the Licensor. TRAEGER provides user documentation which explains the intended use and the conditions of use of the Software and which is always kept up to date.

Only defects in the Software that occur within one (1) year after the download or delivery shall be remedied by TRAEGER in accordance with the statutory provisions. Defects beyond the statutory provisions shall be remedied by TRAEGER for appropriate remuneration, e.g., under a valid support contract. Claims for damages are expressly excluded from this limitation. The statutory limitation period applies to all claims for damages.

In the event of critical failures (Class 1 and Class 2) reported by the Licensee within the one-year warranty period, TRAEGER will eliminate these failures at the request of the Licensee without undue delay, provided that these failures have been shown to result from errors in the Software delivered by TRAEGER (excluding third-party software). For this purpose, the Licensee will enable TRAEGER to access the project showing the corresponding error, in particular via remote access or by making available projects which can be used in the development environment of TRAEGER in order to clearly reproduce the corresponding error.

The parties agree that Class 1 failures include the following cases: serious defects, massive functional limitations, in particular in the final product at customer installations, e.g., system crash, hang-ups, data corruption.

The parties agree that Class 2 failures include the following cases: defects, functional limitations in assured functionality that could not be bypassed or avoided, e.g., by means of auxiliary functions, as well as uncontrolled memory and/or resource consumption which leads to functional limitations in the long term.

Failures which, irrespective of their classification, result from incorrect use and/or use outside the conditions recommended by TRAEGER (as described in the documentation and the example code) will be eliminated by TRAEGER upon written request of the Licensee and charged at the usual TRAEGER cost rates or free of charge under a valid support agreement between the parties.

The Software and any enhancements, upgrades, and updates correspond to the state of the art and are free of detectable viruses. To that end, the Licensor agrees to subject each artifact of the Software (including each enhancement, upgrade, or update) to multiple virus testing that is commensurate with the state of the art of virus detection methods reasonably available to the software industry. However, no assurance is given by TRAEGER that certain mechanisms of virus detection methods may lead to false positives.

5.4 Disclaimer of Liability

The Software and its components are not intended to replace the professional skills and judgment of the Licensee and its employees, agents, and consultants. The Licensee alone shall be responsible for the accuracy and adequacy of the information and data furnished for processing and for any use made by the Licensee of the output of the Software or any reliance thereon.

TRAEGER shall be liable to the Licensee without limitation in accordance with the statutory provisions:

1. in the event of damages caused by intent or gross negligence on the part of TRAEGER, its representatives or employees
2. in the event of damages resulting in death or injury to body or health
3. to the extent that TRAEGER has expressly given a guarantee or assumed a procurement risk
4. in the event of liability under the German Product Liability Act (Produkthaftungsgesetz)
5. in the event of third-party claims for infringement of rights pursuant to Sections 5.1 and 6.1

Beyond items a) to e), TRAEGER shall only be liable to the Licensee for damages caused by the breach of a material contractual obligation. In this case, however, TRAEGER’s liability shall be limited to the typical, foreseeable damage. To the extent permitted by applicable law, TRAEGER’s entire liability to the Licensee and the Licensee’s exclusive remedy shall be, at TRAEGER’s option, (A) repair or replacement of the licensed Software or (B) refund of the price paid by the Licensee for the licensed Software.

Any further liability shall be excluded.

The Software or the use of the Software may be subject to regulatory provisions applicable to products used in the health care sector. Prior to using the Software, it is the Licensee’s responsibility to ensure that the Licensee’s use of the Software does not violate any legal or regulatory provisions and does not deviate from the conditions of intended use explained in the user documentation.

6. Indemnification

6.1 Third-Party Rights

The Licensee explicitly acknowledges and agrees that, although TRAEGER grants the licenses to its Software set forth herein, no assurance is provided by TRAEGER that the use for a specific purpose does not infringe the patent or other intellectual property rights of any other entity. TRAEGER disclaims any liability to the Licensee for claims brought by any other entity based on infringement of intellectual property rights or otherwise on the basis of any such use or configuration with another vendor’s software or hardware. As a condition to exercising the rights and licenses granted hereunder, the Licensee hereby assumes sole responsibility for securing any other intellectual property rights that may be needed. For example, if a third-party patent license is required to allow the Licensee to use the Software for a certain purpose or specific use case, it is the responsibility of the Licensee to acquire that license before distributing or using the Software.

6.2 Third-Party Infringement

If TRAEGER is promptly notified in writing of any action brought against the Licensee (and provided that TRAEGER has been promptly notified of all prior claims relating to such action) based on a claim that the unaltered version of the Software infringes a third-party patent or copyright, TRAEGER shall, upon request of the Licensee, defend such action at its own expense, including attorneys’ fees and expert fees, and pay any costs or damages finally awarded in such action which are attributable to such claim, provided that TRAEGER has sole control of the defense of any such action and of all negotiations for its settlement or compromise. TRAEGER shall not be obliged to defend such action if the infringement is based on a prior version of the Software and the infringement has been fixed in the current version.

6.3 Infringement Proceedings

If a final injunction is issued against the Licensee with respect to any part of the Software by reason of infringement of a patent or copyright, or if, in TRAEGER’s opinion, any part of the Software supplied to the Licensee under this Agreement is likely to become the subject of a successful claim of infringement of a patent or copyright, TRAEGER shall, at its option and expense, either procure for the Licensee the right to continue using such Software or replace or modify the same so that it becomes non-infringing or, if neither of the foregoing options is commercially reasonable, grant the Licensee a full refund for such Software in accordance with the German Product Liability Act (Produkthaftungsgesetz) and accept the return of the Software to TRAEGER. All rights of the Licensee under the license granted pursuant to this Agreement shall cease upon the return of the Software.

In no event shall the Licensor settle any such third-party claim by an agreement which would deprive the Licensee of rights under this Agreement without the Licensee’s prior written consent. Said refund shall not bar the Licensee from pursuing other remedies, subject to the terms of this Agreement.

Notwithstanding the foregoing, TRAEGER shall not be liable to the Licensee under this Section if the infringement or claim is based upon the use of any part of the Software in combination with other equipment or software which is not furnished by or on behalf of TRAEGER or any of its authorized representatives (if such claim would have been avoided had the Software not been used in such combination, including but not limited to the combination with third-party components). This includes Software which has been modified or altered by the Licensee if the Software would not be infringing but for the modification or alteration not approved or installed by TRAEGER, or intellectual property rights owned by the Licensee, the relevant customer of the Licensee or any of their respective affiliates.

The Licensee agrees to indemnify and hold harmless the Licensor and its affiliates, employees, directors, officers and agents from and against any liability and all third-party suits, claims and proceedings against the Licensor arising directly or indirectly out of the Licensee’s breach of any provision of this Agreement.

6.4 Authority to Defend

Nothing in the foregoing shall prevent the Licensee, at its option and expense, from defending itself against claims brought against its end user products. This includes products that are based on or make use of the Software, irrespective of a particular use case of such end user products, or procuring the respective rights or replacing the Software so that it becomes non-infringing.

7. Termination

Each party’s right to terminate this Agreement for good cause in accordance with the statutory provisions remains unaffected.

7.1 Duration

The license shall apply from the date of the initial download or initial delivery of the Software until such time as this Agreement is terminated by either party in accordance with this Agreement, but is otherwise unlimited in time. A notice period of six (6) months applies to the Licensee, and a notice period of two (2) years applies to the Licensor.

7.2 Obligations

TRAEGER shall have the right to terminate this Agreement if the Licensee fails to pay the required license fee(s) or otherwise fails to comply with the License Terms described in this license agreement. TRAEGER shall notify the Licensee of the breach in writing, and if the breach has not been remedied within thirty (30) days thereafter, the license granted hereunder shall terminate.

7.3 Compensation

The Licensor will hold the Licensee liable for any damages arising from a violation of the terms of this Agreement. This includes the Licensee’s non-compliance with or uncured material breach of this Agreement; the Licensee is liable for the material damage caused and shall restore the original legal condition at its own expense.

7.4 Consequences

Upon termination of this Agreement, the Licensee loses the rights granted in Sections 1 and 2 and is not entitled to use the Software to actively develop new products or to further develop existing products developed with the Software, or to install the Software. Upon request, the Licensee will confirm in writing the destruction or return of the Software and all copies in its possession. The Licensee’s end user products that include or are based on the Software and that had already been sold to customers at the time of cancellation or termination are not affected by the termination.

8. Entire Agreement

8.1 Applicable Law

This Agreement shall be governed by the laws of the Federal Republic of Germany. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods (CISG) or by the Uniform Commercial Code, the application of which is expressly excluded. If the Licensee is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction shall be TRAEGER’s registered office; TRAEGER shall also be entitled to sue the Licensee at the Licensee’s general place of jurisdiction. In the event of any discrepancies between the German and the English version of this Agreement, the German version shall prevail.

8.2 Completeness

This Agreement constitutes the parties’ entire agreement relating to the Software. It supersedes all prior or contemporaneous oral or written communications, proposals, warranties, and representations with respect to its subject matter and, following the Licensee’s acceptance of this license by clicking the “Accept” button or by signing this Agreement by an authorized representative of each party or by installation and use of the Software, shall prevail over any conflicting or additional terms of any quotes, orders, acknowledgments, or other communications between the parties.

8.3 Validity

Any cancellation, modification, termination, or amendment of this Agreement must be made in written form and signed by an authorized representative of each party to be legally effective. Oral agreements – including agreements to waive the written form requirement – are not valid and therefore not binding. On the part of the Licensor, only its management is authorized to issue or accept corresponding declarations. The parties acknowledge and agree that this Agreement and any applicable order may be executed in counterparts, and that a signature transmitted by fax/scan is as valid as, and shall be deemed to be, an original signature.

8.4 Assurance

In the event that the Licensor is no longer able to fulfill its contractually agreed obligations due to a legally binding determination (e.g., insolvency), the Licensee shall receive a simple (non-exclusive) right to the source code of the Software. This applies only to the extent that the Licensor does not transfer this Agreement and the Software to a contractual or legal successor which assumes this entire Agreement. The successor shall assume all accrued obligations of the Licensor under this Agreement and the relevant order document.

9. Supplementary Provisions

9.1 Export Control

The Licensee acknowledges that the licensed Software may be subject to export control restrictions of various countries. The Licensor and the Licensee shall fully comply with all applicable export license restrictions and requirements as well as with all laws and regulations relating to the importation of the licensed Software and/or applications and shall procure all necessary governmental authorizations, including in particular all necessary licenses, approvals, permissions, or consents, to the extent required for the re-exportation of the licensed Software, modified Software or applications.

9.2 No Implied Licenses

No implied licenses or other implied rights are granted under this Agreement, and all rights, save for those expressly granted hereunder, shall remain with TRAEGER and its licensors. In addition, no licenses or immunities are granted for the combination of the licensed Software and/or modified Software with any other software or hardware not delivered by TRAEGER under this Agreement.

9.3 Non-Disclosure

For the purposes of this Agreement, “Confidential Information” shall include all information or material that has or could have commercial value or other utility for the business of the Disclosing Party. The Receiving Party’s obligations under this Agreement do not extend to information that: (a) is publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving Party; (b) was discovered or created by or on behalf of the Receiving Party before disclosure by the Disclosing Party without the use of the Disclosing Party’s Confidential Information; (c) the Receiving Party learned by lawful means from a source other than the Disclosing Party or its representatives; or (d) is disclosed by the Receiving Party with the Disclosing Party’s prior written approval.

The Receiving Party shall hold the Disclosing Party’s Confidential Information in strictest confidence for the sole and exclusive benefit of the Disclosing Party. The Receiving Party shall carefully restrict access to Confidential Information to employees, contractors and third parties to the extent reasonably required and shall require those persons to be bound by confidentiality and non-use restrictions (or professional standards) that are at least as protective as those in this Agreement. The Receiving Party shall not, without the prior written approval of the Disclosing Party, use for its own benefit, publish, copy, or otherwise disclose to third parties any Confidential Information, or permit its use by third parties for their benefit or to the detriment of the Disclosing Party. The Receiving Party shall return to the Disclosing Party all records, notes, and other written, printed, or tangible materials in its possession pertaining to Confidential Information without undue delay if the Disclosing Party so requests in writing.

9.4 Waiver

A waiver by either party of the enforcement of a breach by the other party of any provision of this Agreement and/or any applicable order document shall not operate as, nor be deemed to be, a waiver of any subsequent breach.

9.5 Surviving Sections

Any terms and conditions that by their nature or for any other reasonable cause should survive a cancellation or termination of this Agreement shall also be deemed to survive. Such terms and conditions include in particular the following Sections: 3, 4, 5, 6, 8, 9 of this Agreement. Notwithstanding the foregoing, Section 2 shall not survive if the Agreement is terminated for an uncured material breach. Upon termination of this Agreement, the Licensee loses the rights granted in Sections 1 and 2 and is not entitled to actively develop new products or to further develop existing products. Exception: Section 2 shall survive to the minimum extent required for the continued distribution of the Licensee’s present end user products that include or are based on the Software, as well as for the support and bug fixing of these products, to the extent that they had already been sold to customers at the time of cancellation or termination.

9.6 Severability

If any of the above provisions violates applicable law or is void or unenforceable, such provision is hereby waived or amended to the extent necessary for the Agreement to otherwise remain enforceable in the relevant jurisdiction. However, if in TRAEGER’s opinion the deletion or amendment of any provision of the Agreement by operation of this paragraph unreasonably compromises the rights or increases the liabilities of TRAEGER or its licensors, TRAEGER reserves the right to terminate this Agreement.

Possible License Models

Footnotes

¹ This applies provided that the Licensee has not committed an uncured material breach of this Agreement. ↩

² The use of a platform that technically enables additional users to use the Software for software development on the same physical or virtual computer is not permitted. ↩

³ This applies provided that the Licensee has not committed an uncured material breach of this Agreement. ↩

⁴ The use of a platform that technically enables additional users beyond the location to use the Software for software development on the same physical or virtual computer is not permitted. ↩

⁵ This applies provided that the Licensee has not committed an uncured material breach of this Agreement. ↩

⁶ The use of a platform that technically enables additional users beyond the group to use the Software for software development on the same physical or virtual computer is not permitted. ↩

⁷ This applies provided that the Licensee has not committed an uncured material breach of this Agreement. ↩

⁸ The use of a platform that technically enables additional users beyond the licensed locations to use the Software for software development on the same physical or virtual computer is not permitted. ↩

⁹ This applies provided that the Licensee has not committed an uncured material breach of this Agreement. ↩

¹⁰ The use of a platform that technically enables additional users beyond the location to use the Software for software development on the same physical or virtual computer is not permitted. ↩

Version 3.1, valid since March 8, 2024 · Questions: sales@traeger.de