EULA - End User License Agreement
IMPORTANT - PLEASE READ CAREFULLY: This EULA is a legal contract between you (either as a natural or legal person) and CONTENTSERV AG, CONTENTSERV GmbH, CONTENTSERV Europe GmbH, CONTENTSERV Vision, and CONTENTSERV Benelux NV for “CONTENTSERV” software, which comprises the computer software, the corresponding media, printed material, and documentation in the “online” or electronic format („Software“). At the time of purchase of the software and/or at the latest when you install, copy or use the software in any other way, you agree to be bound to the provisions of this EULA. If you do not agree to the provisions of this EULA, you are not entitled to install or use the software.
§ 1 DEFINITION OF TERMS
(01) The user of CONTENTSERV software is whoever acquires the software either as a direct contractual partner of CONTENTSERV or as a contractual partner of a reseller or provider who acquires software within the framework of a sales or lease contract or rental agreement. (02) In the following the term “manufacturer” refers to CONTENTSERV. (03) Software components are individual components and modules of the software
§ 2 SCOPE OF USE
(01) The manufacturer entitles the user to the simple, non-exclusive right and in terms of time non-restricted right to use the software purchased by the user within the scope stipulated in the sales or lease contract or rental agreement. The scope of use is determined in particular according to the specific software components and users. There is no connection between this granting of right of use and the additional acquisition of rights.
(02) The software is licensed per physical server and project and is thus only permitted to be used per licensed server.
(03) The user must ensure that the restrictions for use are complied with.
(04) The user is only entitled to transfer the software if the recipient agrees to this EULA. The recipient must confirm its agreement to the EULA by means of a statutory declaration which is to be served to the manufacturer. The user must inform the manufacturer of the recipient’s name and address. The user must ensure that the recipient is made aware of this EULA. The user must hand over the latest update as well as all previous software versions. The transferring user must hand over all backup copies that are still in its possession to the recipient or destroy them immediately. The transferring user shall observe existing national and international export restrictions which apply to the transfer of software.
(05) The transfer of the authorization to use in the case of a relationship involving permanent debt (i.e. rental, leasing), which serves the financial or economic interests of the user is not permitted, unless the manufacturer has consented to the transfer in writing. In this case the contractual partners of the party providing these services must also agree to this EULA which is applied accordingly. It is up to every provider to ensure that its contractual partners are made aware of the EULA and that they give their consent to it..
(06) In the case of termination of the right of use, the user is obligated either to destroy the original data carriers, all copies of the software as well as the written material made available to the user, or to send it back to the manufacturer and erase all entries relating to the software system. The software and the documentation are not permitted to be made accessible either completely or partially to third parties without the consent of the manufacturer. This also applies after termination of this agreement.
§ 3 COPYRIGHT AND TRADEMARK RIGHTS / THIRD PARTY RIGHTS
(01) The user acknowledges the copyright of the manufacturer and thus the exclusive right of use and right of exploitation to the software. The exclusive right of use and right of exploitation also exist with regard to software enhancements or changes, which the manufacturer or authorized representative has made for the user in accordance with the user’s order.
(02) The user acknowledges the trademark rights, name rights, and patent rights of the manufacturer to the software and the corresponding documentation. The user is forbidden to remove, alter or otherwise obliterate indications of copyright, existing trademark rights, or source code.
(03) The software contains licensed third-party software, which is either embedded in the software or delivered with the software. The user declares its agreement to the re-spective end user license provisions and/or EULA of this third-party software.
§ 4 USER'S RIGHT OF REPRODUCTION
(01) The user is permitted to copy the delivered software in so far as the particular copy is necessary for the use of the software in accordance with this agreement. Necessary copies include those required for the installation of the software from the original data carrier to the mass memory of the hardware being used, as well as those required for the downloading of the software to the main memory.
(02) Furthermore the user may make a backup copy for security reasons. As a rule, however, only a single backup copy may be made and kept. The backup copy must be labelled as such.
(03) If for reasons of data security or if in order to ensure the rapid reactivation of the computer system after a system failure, the regular backup of the complete data stock including the computer programs being used is essential, the user may make the number of backup copies that are absolutely necessary. The respective data carriers must be labelled accordingly. The backup copies are permitted to be used for archiving purposes only.
§ 5 LICENSE KEY AND MULTIPLE USE
(01) The user must use a license key supplied by the manufacturer for the application of the entrusted software and specially licensed software components.
(02) The user may use the software on any hardware at its disposal. If the user changes the hardware, however, it must erase the software and the license key from the previously used hardware and confirm this in writing to the manufacturer. The user shall then require a new license key.
(03) For the use of special software components, which are licensed pro server, the user must obtain the corresponding number of licenses for the server.
§ 6 USER'S DUTY TO COOPERATION
(01) At regular intervals, the software of the manufacturer searches for updates for the software components licensed to the user, so that the user can be made aware of them. The user shall not make any arrangement in order to prevent or stop the search for updates. Personal data or data which have nothing to do with the software installation will not be transferred during this process. Updates and other changes to the source code shall not be performed automatically; the decision whether to perform these changes shall be left up to the user.
(02) In the case that the user is not using the purchased software components in accordance with the acquired licenses or with the use stipulated in the sales or lease contract or rental agreement, but rather in a way to which it is not entitled, the user shall be obligated to pay the license fees which would have been owed in the case of proper operation in accordance with the contract retroactively. This obligation does not exclude the claim for additional damage or penalties for breach of contract.
§ 7 DECOMPILATION AND PROGRAM MODIFICATION
(01) The user is prohibited from decompiling the provided program code to other code forms or from reverse engineering the different manufacturing steps of the software in any way, including program modification in the case of software components whose source code has not been made accessible to the user by the manufacturer.
(02) The removal or alteration of copyright marks, serial numbers, or other program-identification marks is prohibited.
(03) The removal of copy protection or similar protection routines is not permitted without the written declaration of consent of the manufacturer.
§ 8 WARRANTY, LIABILITY
Warranty and liability comply with the General Terms and Conditions of the manufacturer.
§ 9 PENALTIES FOR BREACH OF CONTRACT
For every infringement of the fundamental obligations based on the individual and contractually existing provisions, the user promises to pay the manufacturer a contractual penalty in the amount of 10% of the affected license fees, the minimum amount, however, shall be 25,000 euros. The user waives the defense that several infringements of the same kind be treated as one single infringement for the purpose of this clause.
§ 10 FINAL PROVISIONS
(01) German law shall apply to all claims arising from this EULA. The provisions of the United Nations Convention for the International Sale of Goods (CISG) shall not apply.
(02) The exclusive place of jurisdiction for all conflicts arising from and in connection with this agreement shall be the district court for Rohrbach an der Ilm, provided that the customer is a business person, a body corporate organized under public law or a special fund under public law..
(03) All agreements which imply a modification, amendment, or clarification of this EULA, as well as special agreements and stipulations must be set out in writing.
(04) Should a provision of this EULA be invalid, the remaining provisions of this EULA shall maintain their validity. The invalid provision is to be replaced amicably by an appropriate provision with consideration of the specific interests of the contractual parties in order to meet the desired economic intent.