Agreement on terms and conditions of license and use for Freeware versions

§ 1 Scope of Application, General

(1) These terms and conditions of license and use (“Terms of Use”) shall be applicable to all agreements between MailStore Software GmbH (“Vendor”) and the respective User (“User”), if subject matter of such agreements should be the free provision of Freeware versions of MailStore standard Software, including user documentation and the other support materials (hereinafter referred to as “Freeware”).

(2) These Terms of Use shall accordingly be applicable to provision of new program versions of the Freeware (e.g. patches, bugfixes, updates, upgrades, etc.), as well as to the user documentation made available for download on the Vendors homepage.

(3) Exclusively these Terms of Use shall be applicable. Any deviating, conflicting or supplementary general terms and conditions of business of the User shall solely then and insofar become an integral part of the contract, to the extent that the Vendor has expressly agreed to its applicability in the written form. This approval requirement shall under all circumstances be applicable, e.g. also then, if by bearing knowledge of the User’s general terms and conditions of business, the Vendor should commence providing services towards the User without reservation.

(4) Singular agreements with the User in individual cases (including side-agreements, supplements and amendments) shall under all circumstances take precedence over these Terms of Use. A written agreement or written confirmation by the Vendor shall be decisive as regards the content of such agreement.

(5) Declarations and notifications with legal relevance, which have to be delivered by the User towards the Vendor after conclusion of the agreement (e.g. setting of deadlines, notification of defects, declarations of withdrawal or reduction), have to be in the written form in order to be valid and effective.

§ 2 Provision of Freeware, Right of Use

(1) Provision of Freeware and the supporting user documentation shall be carried out via data transmission (“Download”).

(2) Exclusively the Vendor and the respective licensors shall be entitled to all rights to the software. The software is protected by copyright as well as international treaties regarding the protection of intellectual property.

(3) The User is granted a non-exclusive right of use, unlimited by time, to the Freeware provided in object code for purposes of archiving his/her own private outgoing and incoming e-mails to the extent as specified under these Terms of Use. This shall include the right to copy the Freeware to his/her hardware (computer, PDA, etc.), if respective copying should be necessary for the before mentioned purpose. Necessary copying for the before mentioned purpose shall include installation of the Freeware to bulk memory of the hardware deployed as well as loading of Freeware to the random access memory. Furthermore, the User shall solely be permitted to use the Freeware to the contractually specified extent.

(4) The User shall be permitted to use the Freeware on any suitable hardware available to him/her. However, in the event that the User should exchange the hardware, he/she shall be obliged to irretrievably delete the Freeware from the previously used hardware. Simultaneous use of the software on more than one hardware unit is expressly prohibited. In the event that the software should be used on several computers, an individual right of use has to be acquired for each installation.

(5) The use of Freeware is restricted to use for private purposes only. Any kind of use of the Freeware whatsoever for commercial purposes shall not be permitted; this shall in particular apply to use of Freeware for purposes of archiving business e-mail correspondence. Archiving of pool accounts or e-mail accounts not tied to a specific person shall explicitly be prohibited.

(6) The User shall be entitled to create a copy of the Freeware for back-up purposes. Any back-up copy has to be marked as such. The back-up copies have to be kept in safe custody in a place secured against unauthorised access by third parties. The User shall be under the obligation to avoid unauthorised third party access to the Freeware by taking suitable precautionary measures.

(7) The User may solely adapt the program, in particular carry out changes and enhancements, if this should expressly be permitted under mandatory statutory regulations or if such activities have been contractually agreed. The Vendor points out that even minor changes could lead to major, unpredictable defaults in the operation of the Freeware.

(8) The User may not reconvert or decode the Freeware, nor extract program elements. The User shall neither decompile nor disassemble the Freeware, carry out any reverse engineering or in any other way attempt to derive the source code. If, the User should be permitted to carry out reverse engineering or decompiling based on mandatory statutory regulations in order to reach full functional capacity or to achieve interoperability with other software programs, the User shall be obliged to inform the Vendor in advance as regards the nature and extent of such intended action. Decompiling shall solely be permissible, if the User should prove a justified interest worthy of protection as regards carrying out such action.

(9) The User shall under no circumstances change copyright notices, serial numbers, version numbers, trademarks or any other identification marks from the Freeware. The same shall apply to suppression of on-screen display of corresponding characteristics.

§ 3 Third Party Software („Software from other Manufacturers“), Open Source Software

The Freeware could contain components of third party software and/or open source software, in regard to which separate terms of use have to be observed. If this should be required towards legitimate use of the Freeware, the respectively prevailing terms of use pertaining to such third party software or open source software shall be attached to these terms and conditions. The User pledges to only install the Freeware, once he/she has accepted the terms of use pertaining to third party software or open source software, which shall take precedence over these Terms of Use. In the event that the User should decline, the User shall refrain from installation and use of the Freeware.

§ 4 Liability and Warranty

(1) The Vendor shall solely be liable in the event of intent and gross negligence. Any further damages and claims for reimbursement of expenses by the User, irrespective of its legal basis, in particular based on breach of duty arising from and in connection with contractual obligations and from tort, shall be precluded.

(2) The Vendor shall solely be liable for material defects or defects in title to the Freeware, if the Vendor has fraudulently not disclosed such material defect/or defect in title. Any liability or warranty as regards the Freeware being free of any material defects and defects in title in excess thereof shall be precluded.

(3) The Vendor shall solely be liable for the loss of data, if the User backs-up such data in machine-readable format at intervals appropriate to the application, this being no less than once per day and thus warranting that such data can be restored by applying reasonable effort and costs. In the event that the User should not carry out such data back-up procedures, Vendor’s liability shall be restricted to the efforts and costs, which would have been necessary towards restoring data from due and proper data back-up, as well as the damages caused due to the loss of active data, which data would have also been lost in the event of daily data back-up.

(4) Before using the Freeware, the User shall under all circumstances be under the obligation to test the Freeware as regards fundamental functional qualities by using test data.

§ 5 Applicable Law, Jurisdiction

(1) The laws of the Federal Republic of Germany shall govern the provision of Freeware as well as all legal relations in this connection between the Vendor and the User. Applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) shall be precluded.

(2) In the event that the User should be (i) a registered businessman within the meaning of the “Handelsgesetzbuch” / German Commercial Code, (ii) a legal entity under public law or a special fund under public law, or (iii) if the User maintains no general venue of jurisdiction within the territory of the Federal Republic of Germany, Düsseldorf, Germany is agreed as venue of jurisdiction. However, the Vendor shall reserve the right to raise action or implement other court proceedings at the venue of the User’s general jurisdiction.

§ 6 Closing Provisions, Written Form Requirement

(1) The User’s general terms and conditions shall also then not be binding, if teh Vendor should not once more expressly contradict same. The User’s general terms and conditions shall also not become a contractual component through rendering of services.

(2) Amendments and supplements to these Terms of Use have to be in the written form. This shall also apply to amendment of the written form requirement itself. The written form requirement shall not be complied with by way of e-mail or other means of electronic communication.

(3) In the event that any provision set forth under these Terms of Use should be ineffective or become ineffective, the effectiveness of the remaining provisions set forth hereunder shall not be affected thereby. A provision shall be deemed as having been agreed in replacement of such ineffective provision, which comes as close to the economic purpose of the ineffective provision as possible. The same shall apply in the event that these Terms of Use contain any gaps.

(4) Assignment of the User’s rights arising from and in connection with contractual relations with the Vendor shall solely be permissible after the prior approval of the Vendor has been obtained.

(5) These Terms of Use are a translation of the legally binding German version. In the event of any conflict or ambiguity, the wording of the German version shall prevail as legally binding.
Microsoft® Outlook®, Microsoft® Outlook® Express, Microsoft® Windows® Mail, Microsoft® Exchange Server and Microsoft® Internet Explorer® are registered trademarks of the Microsoft Corporation in the United States and in other countries. Mozilla® Thunderbird™, Mozilla® Seamonkey® and Mozilla® Firefox® are trademarks or registered trademarks of the Mozilla Foundation, USA. Google™, Gmail™, Google Apps™, Google+™, g+™ and Google Chrome™ are trademarks of Google Inc, USA. Apple®, iPhone™, iPod® and Safari® are registered trademarks of Apple Inc. in the United States and in other countries. All other trademarks or registered trademarks are the property of their respective owners. MailStore Server® and MailStore Home® are registered trademarks of MailStore Software GmbH in the United States. MailStore™ e-mail-archiving software is a registered trademark of MailStore Software GmbH, Germany.
The MailStore Software versions contain licensed software from the following third party vendors:

Copyright (c) Igor Pavlov
Copyright (c) Add-in Express Ltd.
Copyright (c) The FirebirdSQL Project – Individual Contributors
Copyright (c) Inprise Corporation
Copyright (c) The Firebird ADO.NET Data Provider Project – Individual Contributors
Copyright (c) Christoph De Baene
Copyright (c) The Apache Software Foundation
Copyright (c) Microsoft Corporation
Copyright (c) The Npgsql Development Team – Individual Contributors
Copyright (c) ExpertPDF Components
Copyright (c) Rebex CR s.r.o.
Copyright (c) Code Systems Corporation
Copyright (c) Jordan Russell
Copyright (c) Martijn Laan
Copyright (c) Indigo Rose Corporation
Copyright (c) Richard Grimes
Copyright (c) Dennis Austin
Copyright (c) David Hall
This product includes software developed by vbAccelerator (http://vbaccelerator.com/)