(1) The following license conditions (EULA = End User License Agreement) apply in addition to the General Terms and Conditions of MesserSoft GmbH (hereinafter referred to as “MesserSoft”) for the purchase, installation, commissioning and utilization of all software supplied to a User by MesserSoft.
(2) The User bindingly, indefinitely and irrevocably agrees upon installing the software to accept these license conditions as well as MesserSoft’s General Terms and Conditions.
§2 UTILIZATION AND EXPLOITATION RIGHTS
(1) MesserSoft furnishes the User with the non-exclusive rights to purchase MesserSoft’s software and to utilize the purchased software in accordance with the conditions of this license agreement. Beyond this, all rights to the software and the documentation remain the property of MesserSoft.
(2) The User is entitled to install and operate the software on the agreed number of clients and servers. Any utilization of the software not included in the agreed scope of this contract is impermissible. The User is obliged to only use the software for own purposes and to not make it available to third parties for free or in return for a fee. Using the software on a server is only permitted if the installation rules out that the software is used by more than the agreed number of clients.
(3) If the User utilizes a terminal server or virtual machines to operate clients, the User must ensure that the client software is installed and can be used on no more than as many terminal server/virtual machine user accounts as the User has purchased licenses for.
(4) The software must only be installed and operated on hardware, operating systems and system software that have been approved by MesserSoft. In all other cases, this indemnifies MesserSoft’s statutory guarantee obligations. In the event that MesserSoft publishes a non-binding statement announcing that it is possible to operate the software under other system prerequisites, MesserSoft assumes no guarantee that the software will always function flawlessly under the changed system prerequisites.
(5) In case the software is protected by hardware copy protection (dongle), the dongle fully represents the utilization rights of that software. Any loss or damage of the dongle implies the loss of all utilization rights. MesserSoft will not provide any replacement for lost dongles. In case of damage of a dongle, MesserSoft will only provide replacement during the guarantee term or within the term of a support contract, and only if the damage is based on a technical malfunction of the dongle.
(6) The User is not entitled to translate, edit, decompile or disassemble the software. The User is not entitled to change or adapt, or have third parties change or adapt, the software even if this is designed to alleviate potential programming errors. The latter does not apply in the event that MesserSoft conclusively refuses to alleviate programming errors in writing. If – in such a case – the User carries out changes or adaptations, or has third parties carry out changes or adaptations, this indemnifies any further guarantee on the part of MesserSoft.
(7) The User is not permitted to change copyright information, trademarks or ownership information relating to the software.
(8) Renting out the software, issuing sub-licenses and utilizing the software as an applications service provider is only permitted with the prior contractually-agreed approval of MesserSoft.
(9) The User is entitled to sell the complete software, including the documentation, to third parties with a simultaneous transfer of the utilization and exploitation rights. This entitlement does not extend to copies of the software or parts thereof. The effectiveness of the transfer of the utilization and exploitation rights is subject to the suspensive condition that the User informs MesserSoft of the transfer in writing and has the third party registered as the new User with MesserSoft. The third party must declare vis-à-vis MesserSoft that it agrees with these license conditions.
(10) With the transfer of the software, the third party acquires all utilization and exploitation rights in accordance with these license conditions and hence replaces the User. At the same time, the User no longer has any rights to the software pursuant to these license conditions. The User is obliged to delete, or destroy in any other way, all copies of the software in its possession immediately and without culpable delay. This also applies to back-up copies.
(11) All above-mentioned utilization and exploitation rights are issued to the User under the suspensive condition that the User has paid the purchase price in full and has registered with MesserSoft before first using the software.
(1) The guarantee term is one year following the purchase of the software by the User, regardless of the time at which the User installs the software. If the length of the mandatory legal guarantee relevant to the purchase of the software between MesserSoft and the User is longer, then this longer guarantee period shall apply.
(2) All software is designed for a number of applications and cannot cover every aspect of every application. MesserSoft has ensured in accordance with industry-standard criteria and to an appropriate extent that the software corresponds to its performance description.
(3) The object of the guarantee is the software exclusively in the version supplied by MesserSoft. Software errors resulting from User or third party adaptations are not covered by the guarantee. Also not covered by the guarantee are hardware, operating system, system software or other third party product errors on the part of the User.
(4) The User must report apparent faults immediately, but no later than two weeks after delivery. Other faults must be reported immediately following detection. The reporting must be submitted to MesserSoft in writing and accompanied by an understandable and complete description of the fault. The warranty is indemnified in the event of faults not punctually reported. The User must appropriately assist MesserSoft in localizing a fault, for example by providing printouts or system descriptions; if necessary in accordance with instructions issued by MesserSoft.
(5) The User is responsible for the regular backup and maintenance of its own data. MesserSoft informs the User that a backup is essential, particularly in the event of a guarantee claim.
(6) MesserSoft is autonomously entitled to alleviate faults by removing them or by supplying fault-free software. MesserSoft is entitled to alleviate faults by issuing a new release of the software or by making changes to the software deemed necessary as a result of the faults insofar as this does not considerably change the contractually-agreed performance.
(1) For a fee, MesserSoft offers directly or via third party support contracts for software. These support contracts always relate to the release that the User is utilizing at the time the support contract is signed.
(2) If the User carries out an update to a new release within the context of the support contract, the support contract’s performance duty is transferred to this new release and MesserSoft’s support obligation for the old release expires.
(3) In the event of a guarantee or support contract claim, MesserSoft is entitled to eliminate errors by means of supplying a new release of the software. Alternatively, MesserSoft can – for the release of the software affected by the error – provide a hotfix or service pack. The User is not entitled to choose any specific form of alleviation.
(4) If MesserSoft has published a service pack for a specific release of the software, hotfixes will only be created on the basis of this service pack from this time onwards.
(5) If a User receives a hotfix for a specific release of the software from MesserSoft, the User receives no guarantee that the same fault alleviation will be provided for later releases by means of a hotfix or service pack.
(6) Prior to installing a hotfix, a service pack or a new release of the software, the User must ensure – at its own risk and cost – that the User’s specific configuration of the software is tested and approved in terms of its compatibility with the hotfix, the service pack or the new release. This also applies in the event that MesserSoft provides such configuration within the context of a service contract.
(7) Fundamentally, MesserSoft will configure the software for the User for an appropriate fee. The User is not given any guarantee – either within the context of the guarantee or a support contract – that the User’s specific configurations will function, or can be used, error-free following an update to a new release of the software. However, the User can, for an appropriate fee, commission MesserSoft to transfer the User’s specific configuration to the new release of the software.
(1) MesserSoft is only liable for claims for damages if these are due to intent or gross negligence on the part of MesserSoft, its legal representatives or agents and for damage to life, body and health caused by an infringement that was initiated by MesserSoft, its legal representatives or agents.
(2) For other culpable infringements, MesserSoft is, regardless of the legal foundation, only liable on the merits of the respective infringements. This does not affect the legal right to withdrawal; however, MesserSoft is only liable to the extent of the typically predictable damage.
(3) Insofar as MesserSoft is liable in accordance with the above provisions, this liability is limited to the indemnity limits of MesserSoft’s business liability insurance. All other liability on the part of MesserSoft is excluded.
(4) MesserSoft is not liable for damages insofar as, and to the extent that, the User could have prevented said damage by initiating tolerable measures such as data backup, in particular.
(5) All provisions relating to liability also apply to MesserSoft’s legal representatives and other agents.
(6) This does not affect the provisions of German product liability laws.
§6 DATA PROTECTION
(1) The User is informed in accordance with §33 BDSG (German Federal data protection law) and agrees by installing the software, that MesserSoft will collect, store and process utilization data in machine-readable form. In case the user has checked on installation, the software can transmit via internet utilization data within the product improvement program of MesserSoft. The installation itself, registration data, download of license data and other data, especially related to the legal use of the software, can be transmitted via internet to MesserSoft.
(2) MesserSoft will handle the User information and data made available to MesserSoft as a result of the business relationship in accordance with the pertinent data protection guidelines and provisions. German Federal data protection law in its respectively valid version applies in particular.
(3) In case the utilization rights for the software require MesserSoft to make statements to any third party, MesserSoft is granted the right to make these statements and transmit all data to the third party related to the statements. This is especially the case when MesserSoft is just a reseller of utilization rights of a third party.
§7 FINAL PROVISIONS
(1) No verbal subsidiary agreements shall apply. Any modifications or amendments to this license contract must be in writing. This also applies to changing the written form requirement. If any provision of this agreement should be or become inoperative, this provision will be replaced with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The validity of the remainder of the provisions shall not be affected by this.
(2) The written form as per the above provisions as described also includes electronic transmission by means of fax or e-mail.
(3) In the event that the provisions in these license conditions contradict MesserSoft’s General Terms and Conditions, the provisions of the General Terms and Conditions take priority.
(4) Place of performance and legal venue are Dortmund.
(5) The contractual relationship between MesserSoft and the User is subject to the laws of the Federal Republic of Germany.