§ 1 Subject of Contract
(1) Software product
The subject of this agreement is the permanent
transfer of the software product and the concession of the right
to personal use to the customer. The software product contains the
software program and the accompanying documentation in digital form.
(2) Code
The software product shall be delivered in executable
form (object code). The source code is not part of this agreement
and thus shall not be delivered.
(3) Transfer medium
The software product shall be provided to the
customer on a data storage medium or through the granting of the
possibility to download the software product from the Internet.
The customer shall receive a license key for this purpose by
e-mail, which shall be sent when the online order is placed.
(4) Documentation
mst software GmbH shall provide the documentation
for the software in the contractually specified language.
(5) Information in advertising media
Software information in advertising media, including
information about supplements and extensions, are for the purpose
of description only and do not constitute a warranty of properties
as defined in Article 443 paragraph (1) of the German Civil Code
(BGB).
§ 2 Rights to use of the software product
(1) Installation, download, use
The customer purchases the single and temporally
unlimited right to use the software product on a maximum of one
workspace, unless the customer has bought more than one workspace
right. If the customer has bought multiple rights, he has the right
to install and use the software product on the contractually specified
number of workspaces.
(2) Home Edition, Workstation Edition and Server Edition
With the purchase of a “Home Edition License”,
the customer acquires the right to use the software product on a
computer used exclusively for private purposes. With the purchase
of a “Workstation Edition License” the customer acquires the right
to use the software product on a commercially used computer. With
the purchase of a “Server Edition License” the customer acquires
the right to use the software product on a server system..
(3) Third party exclusion
The customer does not have the right to transfer
the software product to third parties, nor does he have the right
to transfer the rights granted to him or to distribute the software
product in any other way, such as through lease or loan.
(4) Back-up copy
The customer has the right to make a back-up
copy of the software product on a data storage medium of his own
choosing.
(5) Test versions (Trial/Shareware)
The provision of a test version gives the customer
the right to use the software product for the duration of the trial
period. When the trial period is over, the customer must erase the
software product, if he does not buy it. The use of a trial version
is limited to one trial per software product.
(6) Trademarks
It is forbidden to remove or alter copyright
notices and other trademarks contained in the software product.
Copyright notices and other trademarks must be included in every
transfer of the software product.
(7) Alterations, Decompilation
The customer has the right to make alterations
to the software product, to decompilation and reverse development
only in the exceptional cases stipulated in Articles 69d and 69e
of the German Copyright Law (UrhG). Prerequisite for the right to
these actions is mst software GmbH’s previous refusal of the customer’s
demand for repair of the software product.
(8) Accompanying Material
Accompanying materials are copyrighted. Every
duplication, distribution, and alteration of these materials is
forbidden. The removal of copyright notices and trademarks is forbidden.
§ 3 Contracts with Distributors
Subject matter of contracts with distributors
is the provision of the software product and the distributor’s right
to provide the software product to the end customer under the conditions
specified in paragraphs 1 and 2 of these terms and conditions. The
distributor is not entitled to grant the end customer further rights
to the software product. The distributor is not entitled to distribute
the software product in ways differing from those specified in Article
1 of this agreement.
§ 4 Defects / Obligations of the Customer
(1) Notification of Defects
The customer is obligated to inform mst software
GmbH of found defects within 10 days of the determination of defect.
The informing must be made in text form (E-Mail, fax, letter) and
contain the following information: customer identification, description
of the defect, and the original wording of an error notice if applicable.
If the customer does not fulfill his obligation to inform mst software
GmbH and this nonfulfillment leads to a delay or impossibility of
remedy, mst software GmbH has no liability for consequent problems
in the use of the software product.
(2) Remedy
If a material defect is found, mst software GmbH
has the right to remedy the material defect by means of improvement,
replacement, or through instructions to the customer provided that
the remedy of the defect can be determined and these instructions
constitute a reasonable demand on the customer.
(3) Failure of Remedy
If mst software GmbH fails to provide remedy
within a reasonable time period, that is, a time period that allows
for at least two attempts at improvement, the customer is entitled
to demand a reduction in the remuneration of the agreement, to withdraw
from the agreement, or demand compensation as he chooses. In the
case of a withdrawal from the agreement, mst software GmbH has the
right to demand an appropriate compensation for the benefits accrued
by the customer from the use of the products specified in this agreement.
(4) Insofar as the customer alters the software
product or lets it be altered through third parties, he relinquishes
claims arising from material defects, insofar as the material defects
are due to such alterations.
(5) The warranty period is one year from the
date of delivery of the software product. If the customer is a consumer,
the warranty period is two years.
§ 5 Liability / Data loss
(1) Intentional and gross negligence mst software GmbH is liable
for intent and gross negligence according to the legal regulations.
(2) Slight negligence
Liability for slight negligence is excluded, in so far as the liability for damages arising from injury to life, body or health; liability pursuant to the Product Liability Law; liability in the case of deceitful concealment of a defect; the assumption of a warranty of properties or a basic breach of contract by mst software GmbH do not apply. In the case of basic breach of contract due to negligence, mst software GmbH is liable only for the amount that can be expected in the case of such contracts.
(3) Data loss and backup
The customer is responsible for the backup of his data at regular intervals. In the case of a loss of data for which mst software GmbH is responsible, liability is limited to only those costs for duplication of data and for those backup copies which are to be made by the customer and for the reproduction of data that would have been lost also in the case of an correctly executed backup.
§ 6 Privacy and Data protection
mst software GmbH stores customer data for the purpose of realization of the contract and the facilitation of future services. Use of customer data for any other purposes and the disclosure of customer data to third parties shall not occur.
§ 7 Concluding Provisions
(1) The laws of the Federal Republic of Germany – under exclusion of international private law and the UN Sales Convention – shall apply.
(2) Alterations and supplements of these terms must be made in written form.
(3) In the event that individual provisions of these general terms and conditions are or become invalid, this shall not affect the validity of the remaining terms and conditions.
(4) Place of jurisdiction is Berlin, insofar as the customer does not have a general jurisdiction in the Federal Republic of Germany.
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