1. Scope, General
2. Rights of Use
(1) All rights to the Software are held exclusively by the Vendor and his licensors. The Software is protected by copyright law and international agreements for the protection of intellectual property.
(2) The Vendor grants the User a non-exclusive right unlimited in time to use the Software supplied in the object code to the agreed extent, or in the absence of such agreement, to the extent appropriate for the purpose of the contract.
(3) Upon purchase of the Software the User acquires the right to use the Software to archive emails sent and received by a specified number of staff members (“User Licences“). Archiving of emails of natural persons not employed by the User’s business is not permitted. Purchase of 25 User Licences for example permits the archiving of emails of 25 of the User’s staff members. This applies regardless of whether the staff members are in possession of one or more email accounts. Shared mailboxes, public folders and multidrop mailboxes can generally be archived without having to extend the license amount, so long as a user licence has been purchased for each staff member using the respective mailbox. In the case of multiple users needing access to such a mailbox in the archive, it is required that additional user licenses are purchased in the respective quantity. Where it is intended that the Software be used by more staff members than the number initially agreed in the contract, the User is required to extend its rights of use by purchasing additional User Licences.
(4) Purchasing the Software entitles the User to install and use the Software on one of its systems at any one time. Only the MailStore Client Software may be installed on any number of computers or other hardware within the User’s business. To the extent that appropriate User Licences have been purchased the Software may likewise be used by all of the User’s staff members or external contractors to access the archive.
(5) The User may create a copy of the Software for back-up purposes. However, as a general rule strictly one back-up copy only may be created and stored. This back-up copy must be labelled as such and protected from unauthorised access by third parties.
(6) The User may only revise the Software, and in particular carry out modifications and extensions, where this is expressly permitted by mandatory law. The Vendor advises that even minor alterations can lead to significant, unpredictable errors in the running of the Software.
(7) The User is not permitted to reconvert or decode the Software or extract any program elements. It will not decompile or disassemble the Software, carry out reverse engineering or otherwise attempt to derive the source code. Where the User is permitted by mandatory law to undertake reverse engineering or decompilation to achieve full functionality or interoperability with other software programs the User must inform the Vendor in advance of the nature and scope of the intended activity. Decompilation is only permitted if the User establishes a legal, legitimate interest in carrying out these activities.
(8) Copyright notes, serial numbers, version numbers, trademarks or other identifying features of the Software must not, under any circumstances, be modified or removed. The same applies to suppressing the display of such features on the screen.
(9) The rights and obligations set forth in Clause 2 above apply to validation codes and user documentation as appropriate.
3. Leasing and Transfer
(1) Leasing of the Software, in particular by way of “Application Service Providing” (ASP) or “Software as a Service” (SaaS), is not permitted, except where otherwise agreed in advance with the Vendor in writing.
(3) The User will inform the Vendor of each transfer without delay and supply the name and complete address for service of the new user to the Vendor in writing.
4. Third Party Software, Open Source Software
(1) The Vendor accepts unlimited liability for intentional or grossly negligent damage and personal injury, i.e. death, bodily injury or injury to health caused by the Vendor.
(2) Further claims by the User for damages and costs (“Damages Claims”) arising from any cause in law, in particular through breach of contract or liability in tort, are excluded. This does not apply to compulsory liability, e.g. pursuant to the German Product Liability Act (Produkthaftungsgesetz), intentional or grossly negligent acts, or culpable breach of essential contractual obligations by the Vendor. Essential contractual obligations are those concerning supply, performance and protection, which are either essential to fulfil the purpose of the contract or where the User regularly relies and is entitled to rely upon the Vendor’s compliance and where failure to comply would lead to rights and legal positions of the User being removed or limited in such a way that the contractual purpose can no longer be fulfilled. In the absence of intent or gross negligence however Damages Claims arising from the breach of essential contractual obligations are limited to contractually typical, foreseeable damages.
(3) To the extent that liability of the Vendor is limited to contractually typical, foreseeable damages, the Vendor is liable for each damaging event only up to five times the agreed price of the relevant goods and services. Where a significantly higher risk is identifiable in a particular case, the Vendor will offer the User a higher liability sum but reserves the right to adjust the price accordingly.
(4) In case of loss of data the Vendor is only liable to the extent that the User has backed up the data at adequate intervals, no less than once per day, secured in a machine-readable format and thereby ensured that the data can be restored at a reasonable cost. Where the User fails to carry out such back-up procedures Vendor’s liability is limited to the costs which would have been necessarily incurred in restoring the data from properly backed-up data, as well as loss caused by the loss of current data which would have also been lost had backing-up occurred daily.
6. Applicable Law, Place of Jurisdiction
(2) The mutually agreed place of jurisdiction for all legal disputes will be Düsseldorf, Germany. The Vendor however reserves the right to commence an action or other court procedure in the general place of jurisdiction of the User.
7. Final Provisions, Written Form
(2) The User is not permitted to assign rights arising from the contractual relationship with the Vendor without the prior consent of the Vendor.