Terms and Conditions (EULA)
Applicability and contracting party
a.) These general terms and conditions govern the entire contractual relationship between ProjectWizards GmbH and Clients who acquire software-products („software“) from ProjectWizards or a reseller.
The offer is mainly directed at businesses as defined in Section 14 German Civil Code (BGB).
b.) Contracting Party is:
Lichtenrader Straße 11
As far as the following Terms and Conditions do not require differentiating the Contracting Partners, the respective company is in short referred to as “ProjectWizards”.
Granting of Rights of Use
a.) Subject to the condition precedent of final and full payment of the purchase price, ProjectWizards grants the Client a non-exclusive (basic), restricted, non-transferable, non-sublicensable right, which is unlimited in time and geographical reach, to install and use the software in the form it was delivered by ProjectWizards for the contractually intended use, unless expressly specified otherwise in the product description, on one device.
b.) Subject to Sections 69c Nr. 3 Sentence 2 and 69d para. 2 and 3 German Copyright Act (UrhG), the Client is granted no further or additional rights. Where this would exceed the contractually intended use, the Client is especially not entitled to duplicate, rent, lease, translate, edit or otherwise alter the software in whole or in part, to grant a sublicense or otherwise make such software available to third parties without authority.
c.) Moreover, the Client is not permitted to reverse engineer, decompile or disassemble the software, except were this is permitted by Section 69e German Copyright Act.
d.) ProjectWizards exclusively holds all rights to the source code. The Client is not entitled whatsoever to access the source code.
e.) As long as and as far as the Client uses the software as a demo version, the rights granted by ProjectWizards under clause 2.a are restricted to the use as a demo version as an independent type of use. The Client may register his copy of the software by purchasing a Registration Number on http://www.projectwizards.net/. By activation of the software with a lawfully acquired and paid in full Registration Number, the above mentioned restriction is repealed and the entire range of the software’s functions is released. The Registration Number may only be transferred if such transfer is within the scope of Section 69d Nr. 3 Sentence 2 German Copyright Act.
Updates and Improvements
The granting of rights pursuant to Sec. 2, including all its restrictions, also applies to updates and improvements which ProjectWizards subsequently and at its sole discretion provides.
Retransfer of Rights
If the Client makes use of a “Money Back Guarantee”, or exercises his right of withdrawal or another right to reverse the sales contract for the software, any rights to the software transferred under this contract for the purpose of the sale revert to ProjectWizards.
Obligations of the Client
a.) The Client will pay the remuneration for the licensing of the software and the granting of rights as stipulated by Section 6.
b.) The Client will inform and familiarize himself with the essential functional characteristics and system requirements of the software prior to the conclusion of the contract and will examine the software for usability and potential defects in the configuration of hard- and software prior to its productive use. Section 377 German Commercial Code (HGB) remains unaffected.
c.) The Client adheres to the instructions for the installation and operation of the software given by ProjectsWizards and will obtain up-to-date instructions on www.projectwizards.net at regular intervals and take such instructions into account when operating the software.
d.) The Client takes adequate measures in case the software does not operate properly, in whole or in part, especially by creating regular and risk-appropriate security backups, to ensure reconstruction in case of data loss.
a.) For the licensing and use of the software, the Client will pay the remuneration stipulated upon conclusion of the contract. The specified prices – unless otherwise agreed – include the respective statutory value added tax (VAT).
b.) The fee for the licensing of the software product is due immediately and without deductions.
a.) ProjectWizards warrants the software in accordance with the applicable statutory rules and the following provisions.
b.) The Client shall document any potentially arising material defects in a manner that is comprehensible and – if possible – reproducible by ProjectWizards and notify ProjectWizards immediately after discovery of such defects. To a reasonable extend, the Client will provide ProjectWizards with all information needed by ProjectWizards to evaluate and remedy the defect. The Client is also obliged to contribute to the restriction and/or containment of defects.
c.) ProjectWizards will initially assume warranty by granting supplementary performance and, on its own discretion, either rectifies the defect or licenses the client a new software version which is free of defects. Provision of a workaround, which enables the Client to reasonably avoid the defect and use the software as contractually intended, is also considered rectification of the defect. The Client is obliged to take over a new software version, provided the contractually agreed condition is maintained.
d.) In the event the Client sets a time period for ProjectWizards to remedy defects, the Client is to immediately explain, after any effectless expiration of such time period, how to deal with the contract henceforth. If the Client does not render such explanation immediately, ProjectWizards will and is entitled to assume that the contract is to continue unchanged.
e.) If ProjectWizards renders services during troubleshooting without being legally required to, ProjectWizards may demand remuneration for the work performed on the basis of its usual hourly rate. This shall apply in particular if a defect is either not verifiable or not attributable to ProjectWizards. The additional expenditure on part of ProjectWizards, which results from a breach of the Client’s duties as stipulated in clause 5, is also to be compensated.
f.) Where third parties allege claims preventing the Client from exercising his contractual Rights of Use, the Client immediately and in writing informs ProjectWizards and authorizes ProjectWizards to take actions against such third parties in and out of court on its own responsibility. In the event the Client gets sued, he will not acknowledge the claim brought against him and will make no declarations nor take any legal actions prior to or without consulting with ProjectWizards.
g.) The Client may only derive rights from any other breach of duty where he has alleged such breach towards ProjectWizards in writing and set a grace period for remedy. This does not apply as far as no remedy is available for reason of the nature of the breach of duty.
h.) The warranty period is 1 Year starting with the provision of the software. The same time period is applicable for all other claims against ProjectWizards. The statutory period of limitation applies for intent, gross negligence, fraudulent or malicious non-disclosure of a defect, personal injury, legal defects pursuant to Section 438 para. 1 Nr. 1a German Civil Code, guarantees which are expressly declared as such, or claims pursuant to the German Products Liablity Act (ProdHaftG).
a.) ProjectWizards shall be fully liable for intent and gross negligence as well as for damages caused by injury to life, body or health.
b.) In an event of slight negligence, ProjectWizards shall be liable only for breaches of a material contractual obligation. A material contractual obligation in the meaning of this provision is an obligation whose fulfilment makes the implementation of this contract possible in the first place and of which the contractual partner may therefore generally rely.
c.) In a case according to Sec. 8.b, ProjectWizards shall not be liable for any lack of commercial success, lost profits and indirect damages.
d.) Liability in accordance with the above Sec. 8.b shall be limited to the typical and foreseeable damages at the time this Agreement was concluded.
e.) The foreseeable damage is limited to the amount of the remuneration paid by the Customer.
f.) The Client is obliged to regularly perform backups of his data. Notwithstanding the other provisions of this Sec. 8, ProjectWizards is only liable for costs in connection with the recovery of lost data to the extent that such costs would also have incurred or been necessary in the event of correct data backup.
g.) The limitation of liability shall apply mutatis mutandis to the benefit of the employees, agents and vicarious agents of ProjectWizards.
h.) Any potential liability on the part of ProjectWizards for any warranties and for claims based on the German Product Liability Act shall not be affected.
i.) In deviation from clause 8.b, ProductWizards is only liable for errors or legal defects to updates and improvements to the software that do not constitute a rectification and were provided voluntarily and free of charge, if ProjectWizards maliciously withheld such error or defect.
j.) Any further liability is excluded.
a.) Exclusive place of jurisdiction for all disputes arising from this contract is Osnabrück, Germany.
b.) This contract is subject to the law of the Federal Republic of Germany to the exclusion of the UN Sales Convention (CISG).
c.) Amendments and subsidiary agreements to these Terms and Conditions have to be in writing. This also applies to this provision concerning the written form.
d.) The official language of these Terms and Conditions and of all documents in connection with the software is German. Translations into other languages are not legally binding.
e.) Should individual provisions of these Terms and Conditions be or become invalid and/or inconsistent with statutory regulations, the validity of the remaining provisions of these Terms and Conditions shall remain unaffected. The contracting parties shall jointly replace the invalid provision with a legally valid provision which comes closest to the commercial purpose of the invalid term. The foregoing rule shall apply correspondingly for regulatory gaps.
As of: July 10th, 2017