General Terms and Conditions of VservU GmbH
- All licensing agreements between us, the VservU GmbH, Gorch-Fock-Str. 6, 81827 Munich (hereinafter “we” or “VservU”) and you (hereinafter “you” and/or “Customer”) contracted via our online-shop www.megazine3.de (hereinafter “Online-Shop”) shall be governed by these General Terms and Conditions (hereinafter “T&Cs”) in the version which is valid at the time of the order. The Customer accepts these T&Cs as binding with its registration for the Online-Shop.
- Please note that as consumer, specific terms apply to you with regard to the right of withdrawal as stipulated in sec. 3 and the warranty as stipulated in sec. 9 (1). Consumer is an individual, who orders the license for a purpose which is not related to his commercial and/or self-employed activity (§ 13 BGB) (hereinafter “Consumer”).
2. Conclusion of Contract
The offers in the Online-Shop are non binding and constitute an invitation to our customers to bindingly order licenses from us. The Customer sends a binding offer for the purchase of the ordered licenses by submitting the order via using the order button (hereinafter “Order”). VservU will confirm the receipt and acceptance of the Order via email without undue delay (the acceptance of the Order and thus, the respective agreement hereinafter “Agreement”).
3. Information concerning the Right of Withdrawal
As a Consumer as defined in sec. 1, you are entitled to the Right of Withdrawal as stipulated below.
Right of Withdrawal
You may withdraw your contractual declaration within fourteen days, without giving reasons, in text form (e.g., by letter, fax, or e-mail). The prescribed period commences on receipt of this information in written form, but not before receipt of merchandise by customer (in case of repeated deliveries of similar merchandise not before receipt of first partial delivery) and not before fulfillment of our contractual obligation concerning consumer information according to article 246 § 2 connected with § 1 para. 1 and 2 EGBGB together with our obligations according to § 312e para. 1 sentence 1 BGB connected with article 246 § 3 EGBGB. The timely dispatch of the notice of withdrawal is sufficient in order for the deadline for withdrawal to be met.
The notice of withdrawal must be addressed to:
VservU GmbH Gorch-Fock-Str. 6 81827 Munich firstname.lastname@example.org Fax+49 89 43906 708
Consequences of Withdrawal
In the event of a valid withdrawal already rendered services and any benefits derived from them (e.g. interest) must be surrendered. Should you not be able to release the rendered services either completely or partially or only in impaired condition, you must compensate us for the loss of value. You must perform any obligation to refund payments within 30 days. This 30 days period shall commence for you on the date you send us the cancellation statement; the prescribed 30 days period shall commence for us on the date of receipt thereof.
End of the Information concerning the Right of Withdrawal
4. License Key and Software
- After acceptance of an Order by VservU, Customer receives a license key for each license purchased, which is a particular keyword (hereinafter “License Key”) for the software specified in the Agreement (hereinafter “Software”). A pair of one private and one public License Key is provided. The private License Key proves ownership of a valid license and allows the use of the Software. The use of the Software according to the scope of rights granted to the Customer (hereinafter the “License”) will require both the private and public License Key. The public License Key must be provided as license key parameter for each published title (hereinafter “MZ3-Title”). The public Licence Key is readable for the public.
- The Customer can receive the Software by means of downloading it from the Download area of VservU’s Website www.megazine3.de
- The License Key will be either sent to the email address that the Customer has provided to VservU within the Order after payment of the respective invoice or provided in the restricted area that is accessible under the registered user name of the Customer. VservU is only responsible for the action of sending out the License Key to the provided email address and neither for the undisrupted transport to nor the error free reception of the License Key by the Customer.
- Unless otherwise agreed, VservU is not responsible for the installation, implementation, or customizing of the Software.
5. Grant and Scope of License
- In consideration of payment in full of the licence fee set out in the Agreement and in accordance with the T&Cs and the Order, VservU grants Customer a non-exclusive, non-sublicensable right to use the Software on the terms and conditions set out in these T&Cs and any such additional terms specific to Customer’s use of the Software as agreed upon in the Agreement and associated with the ordered Licence type (such specific terms hereinafter “License Terms”) for the term set out in the License Terms. This right extends to the actual version of the Software as made available by VservU (or any prior version).
- The Customer shall receive the License Terms in a respective document (hereinafter “License Certificate”) via email together with the License Key.
- Customer may:
- install/implement and use the Software for Customer’s business operations only on as many computers/servers of Customer as needed;
- subject to sec. 5 (4), modify the Software, provided that Customer marks any modification with a respective description, the date of the modification and the name of the author of the modification;
- publish or distribute documents (books, papers etc.) as specified in the License Terms;
- transfer and (re)sell the License under the condition that
- The license term for the pertaining License is perpetual;
- the original License Certificate and the License Key are transferred to the new owner;
- the new owner accepts the T&Cs and the License Terms as binding;
- the Software is no longer used by the old owner of the License and
- the License Key is no longer used by the old owner
- Customer must not
- modify (in particular delete, rename, move, change) the class "http://svn.megazine3.de/megazine/trunk/src/de/mightypirates/megazine/MegaZine.as" in a way that the functionality of the Software is affected;
- delete or modify any copyright statements, labels, instructions or trade mark signs;
- give the appearance to be the developer or owner of a combination of the Software and modifications and/or third party extensions (hereinafter “Combined Work”) without explicit referral to the intellectual property rights of VservU;
- publish or distribute more documents and pages than covered and explicitly granted with the License;
- distribute or provide access to the modified or unmodified sources of the Software, other than through a link to the official download page of VservU.
- Customer must set the license key parameter to the public License Key that comes with the License Certificate. This must be done for every instance of a document published with the Software. No other value than the valid public key that was provided together with the private key of the license must be used.
- Limitations of the License term and/or the allowed number of documents or document pages to be published with the Software (if any) depend on the license type and are defined in the License Terms.
- Customer must not remove or change the "powered by MegaZine3" logo, unless granted by the License.
- Customer undertakes not to:
- do anything inconsistent with VservU’s rights in the Software or the License granted to it;
- except as expressly permitted by § 69 e UrhG, disassemble, reverse engineer or decompile the Software or any part, or otherwise derive its source code, to the extent the Software was not provided in source form;
- notwithstanding sec. 5 (3) d), make the Software and/or the Licence Key accessible to third parties or to employees other than those who have been appointed by Customer to work in connection with the Software;
- Except as set out in this sec. 5, VservU expressly reserves all other rights to publish, duplicate, process, use or exploit the Software.
6. Customer’s Obligations
- keep the private Licence Key confidential and disclose it only to those employees or third parties as necessary for the purpose of the Agreement, provided that Customer ensures that any such employee or third party has a legal obligation to keep the private Licence Key confidential (both during and after their current employment or engagement),
- pay the fees to VservU as defined and agreed in the T&Cs respectively the Agreement.
7. Fees and Payment
- Customer shall pay to VservU the fees as outlined in the pertaining Agreement (hereinafter the “Fees”).
- VservU will invoice the Fees upon acceptance of an Order and if the license term is not perpetual annually in advance at any anniversary of such date during the license term. Any delay in issuing an invoice by VservU may not be deemed as a waiver to its rights pertaining to the Fees. The invoiced amount shall become due in full and without deduction fourteen (14) days after the invoice was issued to the Customer.
- The Customer may offset own claims only if and to the extent its respective claims have been acknowledged by a finally binding court decision or have been acknowledged by VservU. The Customer can only assert a right of retention if its counterclaim relates to the same contractual relationship.
- All invoiced amounts are in each case payable in EURO (€) and exclusive of the applicable taxes such as VAT which shall be paid in addition at the relevant statutory rate.
8. Intellectual Property Rights
- Customer acknowledges that all intellectual property rights in the Software and pertaining documentation are vested in and shall remain with VservU, and Customer acknowledges that it has no right in any intellectual property rights in the Software and pertaining documentation, except for the right of use provided in sec. 5.
- VservU warrants that the Software shall not infringe Intellectual Property Rights of third parties for the warranty period set out in sec. 9.
- Subject to sec. 8 (5) and 8 (6), VservU undertakes during the warranty period at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of these T&Cs infringes the intellectual property rights of a third party (hereinafter “Claim”) and shall be responsible for any reasonable damages and costs (including statutory legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim.
- In the event that the Software or parts thereof infringe the intellectual property rights of a third party during the warranty period, VservU shall at its sole option and expense either:
- replace or modify the infringing Software to make its use non-infringing without loss of substantial functionality; or
- obtain a licence for Customer to continue using the infringing Software; if VservU in its sole discretion determines that neither of the possibilities set out above are commercially feasible, then the Customer shall have the right either to demand a reduction of Fees or to rescind from the Agreement, in which later case VservU shall refund the received Fee.
- VservU shall not be liable to Customer for Claims resulting from any infringement of the intellectual property rights of a third party to the extent the infringement is a result of:
- unauthorised changes to the Software carried out by Customer, or at Customer’s request or
- use of the Software otherwise than in accordance with the provided documentation and the T&Cs and/or the Agreement.
- VservU’s indemnity obligations set out in sec. 8 (3) will depend on the Customer:
- providing VservU with prompt written notice of a Claim;
- permitting VservU to control the defence and settlement of the Claim;
- refraining from entering into any settlement or compromise of any such Claim;
- providing VservU with reasonable information and assistance for the defence or settlement of the action; and
- using all commercially reasonable efforts to mitigate any loss, damage or costs related to the Claim.
- Perpetual Licenses
For Licenses with a perpetual license term the warranty provisions set out in sec. 9 (1) a) and b) apply.
- Warranty towards Consumers (B2C)
In the event the Customer is a Consumer as defined in sec.1, the statutory warranty period of two years shall apply and VservU warrants – subject to sec. 9 (3) – that the software, which had been unlocked with the Licence Key according to the provision of these T&Cs (hereinafter “Unlocked Software”) shall substantially perform as specified in the provided documentation when used in accordance with such documentation, the T&Cs and/or the Agreement.
- Warranty Business to Business (B2B)
In the event the Customer is not a Consumer as defined in sec.1, the statutory warranty period shall not apply. In this event, VservU warrants – subject to sec 9 (3) – for the period of twelve (12) months from the date of receipt of the Licence Key by the Customer that the Unlocked Software shall substantially perform as specified in the provided documentation when used in accordance with such documentation, the T&Cs and/or the Agreement. However, in the event of wilful misconduct or gross negligence of VservU, death or bodily injury, defects of title according to § 438 para. 1 no. 1 a BGB, as well as fraudulent concealment of defects and explicit guarantees, the statutory warranty period shall apply.
- Warranty towards Consumers (B2C)
- Temporary Licences
For Licenses with a temporary license term the following warranty provisions apply:
VservU warrants – subject to sec. 9 (3) – for the License term that the Unlocked Software shall substantially perform as specified in the provided documentation when used in accordance with such documentation, the T&Cs and/or the Agreement.
- VservU does not warrant:
- the performance of the Unlocked Software outside the scope of the provided documentation, unless it has been expressly agreed in writing between Customer and VservU;
- the use of the Unlocked Software with any third party software or third party services if such third party software or third party services cause the problem(s) reported by Customer;
- Unlocked Software related problems caused by misuse, improper testing, unauthorised attempts to repair, modifications or customisations to the Unlocked Software by Customer;
- that the Unlocked Software will achieve Customer’s intended results, nor that the Unlocked Software has been developed to meet the individual requirements of Customer.
- In the event the Customer is not a Consumer as defined in sec.1, Customer agrees to inspect the Unlocked Software for obvious defects on receipt of the Licence Key, and any such suspected defects must be notified in writing (and documented in a comprehensible manner) to VservU without delay, at the latest within fourteen (14) days after receipt of the Licence Key. Following expiry of the time limit, the assertion of obvious defects shall be excluded, except in the case of fraudulent concealment.
- Should a warranty breach occur during the warranty period, VservU will, at its sole discretion and expense either:
- repair the Unlocked Software or parts therein;
- replace the Unlocked Software or parts therein; and
- if VservU cannot reasonably repair or replace the Unlocked Software or parts therein within a reasonable time period which shall be in any event not less then one (1) month, than the Customer shall have the right either to demand a reduction of the Fee or to rescind from the respective Agreement, in which case VservU shall refund the received Fee for the License.
- The Customer shall notify VservU and provide all the information that may be necessary to assist VservU in resolving the defect or fault (including a documented example of any defect or fault, or sufficient information to enable VservU to recreate the defect or fault).
- Where a Customer notifies VservU of a suspected warranty breach where there is no such breach, then VservU reserves the right to charge Customer for associated costs of the required review, which shall be calculated in accordance with the then current price list.
10. Limitation of Liability
- VservU shall be liable for damages in accordance with the statutory provisions
- for damages which are caused by VservU through fraud or fraudulent misrepresentation, wilful misconduct and gross negligence;
- for damages due to death, personal injury, or damage to health (personal injury);
- upon giving a guarantee as well as damages under German statutory product liability law (ProdHaftG);
- for damages which are caused by a ordinary negligent breach of fundamental contractual obligations, the performance of which is an indispensible prerequisite for the proper performance of the agreement with VservU and upon compliance with which the contract partner usually relies and can rely (hereinafter “Material Contractual Obligations”).
- If damages are caused by VservU due to an ordinary negligent breach but without breaching the Material Contractual Obligations, VservU’s liability shall be limited to the foreseeable damage or loss that is typical of such contract.
The T&Cs shall be incorporated in any Agreement. In case of any conflict between the stipulations in the T&Cs and the Agreement the Agreement shall supersede the T&Cs.
12. Jurisdiction and Governing Law
- Governing Law
These T&Cs and all Agreements hereunder shall be governed by and construed in accordance with German Law, without reference to its principles of conflicts laws, and without reference to the UN Convention on Contracts for the International Sale of Goods (CISG).
- Place of Jurisdiction
In case the Customer is a merchant according to § 1 HGB, the parties to an Agreement hereby acknowledge and submit any disputes arising out or in connection with these T&Cs and/or the Agreement(s) to the sole and exclusive jurisdiction of the courts of Munich, Germany.
Munich, June 14, 2011