§ 1 Scope of Application, General
(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.
(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
§ 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.
(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.