Allgemeine Geschäftsbedingungen

Software License Agreement

 

IMPORTANT – READ CAREFULLY:

BY CHECKING “I accept the following terms and conditions” AND CLICKING THE “OK” BUTTON, SIGNING AN INDIVIDUAL OFFER OR BY UTILIZING THIS SOFTWARE PRODUCT YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. THIS SOFTWARE PRODUCT IS NOT AVAILABLE TO PERSONS UNDER 13 YEARS OF AGE.

IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT FOR COMMERCIAL USE OR IF YOU DO NOT FULFILL THE AGE REQUIREMENTS TO USE THIS SOFTWARE PRODUCT, CLICK THE “Cancel” BUTTON AND DO NOT USE THIS SOFTWARE PRODUCT.

 

Definitions

 

“speed4work” refers to speed4work UG (haftungsbeschränkt), Brunnerstraße 7, 80804 Munich, Germany, a private limited liability company incorporated under the laws of the Federal Republic of Germany. speed4work UG (haftungsbeschränkt) is the developer of this software product. speed4work UG (haftungsbeschränkt) holds the exclusive and worldwide license and distribution rights for this software product. speed4work UG (haftungsbeschränkt) is the compiler of the installation packages and deliverer of this software product.

“Software” refers to this software product developed by, licensed and distributed under this Software License Agreement for Commercial Use by and compiled into an installation package and delivered by speed4work UG (haftungsbeschränkt) via its customer portal or email. This software product allows its users to create and alter visual presentations in Microsoft PowerPoint. It includes: components, machine-readable instructions and data and license use documents and/or keys.

“SLA” refers to this Software License Agreement for Commercial Use and the terms and conditions set forth by this Software License Agreement for Commercial Use.

“YOU” refers to the individual who registers with speed4work UG (haftungsbeschränkt) for commercial use of this software product or, if this software product is being licensed on behalf of an entity by an individual authorized to register with speed4work UG (haftungsbeschränkt) for the commercial use of this software product on behalf of such entity, then “YOU” refers to such entity.

“Personal Data” refers to personal data in the meaning of Section 3 Para 1 of the German Data Protection Act, i.e., any information concerning the personal or material circumstances of a defined or definable natural person.

 

1 Subject

(1)            This SLA constitutes a software leasing and license agreement which is hereby concluded between YOU and speed4work UG (haftungsbeschränkt) according to the terms and conditions of this SLA.

(2)            This SLA furthermore constitutes a virus inspection and prevention agreement which is hereby concluded between YOU and speed4work UG (haftungsbeschränkt) according to the terms and conditions of this SLA.

(3)            The Software is leased and licensed to YOU by speed4work UG (haftungsbeschränkt) under this SLA and not sold to YOU.

(4)            The Software is protected by applicable national and international copyright laws and treaty provisions.

 

2 Right and License to Use

(1)            During the term of this SLA, pursuant to Section 3 (Term and Termination), below, and subject to the payment of the license fee, pursuant to Section 4 (License Fee), below, speed4work UG (haftungsbeschränkt) hereby grants YOU a worldwide, non‑exclusive, non‑transferable, time‑limited and terminable right and license to use the Software on the limited basis set forth in this SLA. All other right, title and interest in and to the Software and any enhancements or updates remain with speed4work UG (haftungsbeschränkt).

(2)            The right and license to use the Software is subject to the provision of a license key (“Key”) which is issued by speed4work UG (haftungsbeschränkt) and delivered to YOU at the beginning of YOUR license period and expires automatically on the end of YOUR license period.

(3)            The Software and the Key are delivered to YOU electronically by download and/or other electronic means of delivery provided by speed4work UG (haftungsbeschränkt).

(4)            Under this SLA, YOU may use the Software up to the level of use specified in this SLA, and make and install copies, including a backup copy, to support such use. The terms of this SLA apply to each copy made. YOU will reproduce all copyright notices and all other legends of ownership on each copy, or partial copy, of the Software.

(5)            Under this SLA, YOU are entitled to grant any of YOUR employees the right and license to use the Software, provided that YOU have included the specific employee whom YOU grant the right and license to use the Software in the number of individual users, pursuant to Section 4 (License Fee), below. Any such grant of right and license to use the Software is restricted to the use of the Software for YOUR commercial purposes according to YOUR instructions. Private use of the Software by YOUR employees is never permitted.

(6)            YOU may not 1) use, copy, modify, or distribute the Software except as provided in this SLA; 2) reverse assemble, reverse compile, or otherwise translate the Software except if and as specifically permitted by this SLA or by mandatory statutory law without the possibility of contractual waiver; or 3) sell, sublicense, rent, or lease the Software. If the applicable laws under YOUR jurisdiction allow YOU to modify the Software, e.g., in case of a defect that is not eliminated by speed4work UG (haftungsbeschränkt) within reasonable time or to establish compatibility with other software, YOU are not allowed to delegate the modification to a contractor that is or might become a potential competitor of speed4work UG (haftungsbeschränkt).

(7)            YOU must ensure that anyone who uses the Software (accessed either locally or remotely) does so only for YOUR authorized use and fully complies with the terms and conditions of this SLA. YOU must protect YOUR Key against unauthorized use by third parties. In case a third party, including YOUR employees, infringes the terms and conditions of this SLA and/or the intellectual property rights of speed4work UG (haftungsbeschränkt), YOU must inform speed4work UG (haftungsbeschränkt) without undue delay after finding out about the infringement. Furthermore, YOU must closely co-operate with speed4work UG (haftungsbeschränkt)to stop the infringement. The same applies if YOU receive a request from an unauthorized third party to allow and grant access and use of the Software.

(8)            The right and license to use the Software will expire at the termination of this SLA, pursuant to Section 3 (Term and Termination), below.

 

3 Term and Termination

(1)            The term of this SLA starts with the issuing and delivery of the Key to YOU.

(2)            The term of this SLA ends on the expiration date of the Key issued and delivered to YOU. The duration of the license is a least 12 months. Notice of termination must be given in writing three months before the expiration date of your license. Otherwise, your license will be prolonged for another 12 months.

(3)            During the term of this SLA the parties are entitled to terminate this SLA only for a good cause. In particular, think‑cell Sales is entitled to terminate this SLA, without prejudice to any other rights or remedies, at any time without prior written notice to YOU in the event that YOU engage in, or participate with any third party in, the unauthorized manufacture, duplication, distribution or use of the Software or otherwise infringe any other intellectual property right of think‑cell Software, think‑cell Sales and/or think‑cell Operations.

(4)            At the end of the term or upon termination of this SLA, YOU must destroy all copies of the Software licensed under this SLA and all Keys provided to YOU.

(5)            YOU shall not be entitled to derive any rights and claims against speed4work UG (haftungsbeschränkt)by the continued use of the Software after the end of the term or upon termination of this SLA. In particular, the continued use of the Software by YOU after the end of the term or upon termination of this SLA without the explicit consent of speed4work UG (haftungsbeschränkt)cannot be interpreted as an implicit approval of speed4work UG (haftungsbeschränkt)to the continued use and/or an extension of this SLA.

 

4 License Fee

(1)            The license fee (“Fee”) depends on the current price list effective on the day YOUR order is received by speed4work UG (haftungsbeschränkt). The Fee is in particular subject to the number of individual users of the Software nominated by YOU to speed4work UG (haftungsbeschränkt)and the designated license period.

(2)            YOU will inform speed4work UG (haftungsbeschränkt)without undue delay about any increase in the number of individual users stated in YOUR initial order, place an according supplemental order for the additional individual users with speed4work UG (haftungsbeschränkt)and pay the according additional Fee as invoiced by speed4work UG (haftungsbeschränkt). The additional Fee depends on the current price list effective on the day YOUR supplemental order is received by speed4work UG (haftungsbeschränkt). The additional Fee is in particular subject to the number of additional individual users of the Software nominated by YOU to speed4work UG (haftungsbeschränkt)and the designated remaining license period.

(3)            The Fee plus applicable VAT is payable in advance for the whole term of this SLA in accordance to the payment terms stated in the invoice sent to YOU with the delivery of the Key.

(4)            If YOU are in default with the payment of the Fee for fourteen (14) calendar days or more, speed4work UG (haftungsbeschränkt) may suspend the right and license to use the Software or immediately terminate this SLA by written notice.

(5)            Any official duties, taxes, levies or fees for YOUR use of the Software have to be paid by YOU and are not included in the Fee.

 

5 Installation, Support

(1)            The Software is installed by YOU at YOUR own risk.

(2)            During the term of this SLA, pursuant to Section 3 (Term and Termination), above, and subject to payment of the Fee, pursuant to Section 4 (License Fee), above, speed4work UG (haftungsbeschränkt) hereby grants YOU the right to receive free written technical support regarding the Software. The provision of the free written technical support is subject to capacity. Support requests can be mailed to speed4work UG (haftungsbeschränkt) by postal mail, facsimile, or electronic mail. Support is only available for the latest version of the Software.

 

6 Virus Inspection and Prevention Agreement

(1)            speed4work UG (haftungsbeschränkt) shall be responsible under this SLA that the Software are delivered to YOU free of Viruses. For this purpose, YOU hereby explicitly assign and instruct speed4work UG (haftungsbeschränkt) to inspect the Software and leased and licensed to YOU under this SLA before delivery to ensure that the Software are free of Viruses. speed4work UG (haftungsbeschränkt) will confirm to YOU that the Software are free of Viruses by electronically signing the Software with its code signing certificate.

 

7 Use and Protection of YOUR Personal Data

Please note: YOU hereby declare YOUR consent to the storage, processing and transfer of YOUR Personal Data by speed4work UG (haftungsbeschränkt) in accordance with the following data protection and usage provisions:

(1)            speed4work UG (haftungsbeschränkt) is entitled to collect, store, and use and process YOUR Personal Data exclusively for the conclusion and execution of this SLA.

(2)            YOUR Personal Data will only be collected from and provided by YOU if not otherwise admissible according to the German Federal Data Protection Act (“Bundesdatenschutzgesetz”).

(3)            speed4work UG (haftungsbeschränkt) is entitled to publish YOUR name in the public list of references which may be provided to third parties.

(4)            speed4work UG (haftungsbeschränkt) will observe all mandatory statutory provisions of the German Federal Data Protection Act, the Telemedia Act (“Telemediengesetz”) and all other applicable statutory laws regarding the collection, storage, usage and processing of YOUR Personal Data.

 

8 Warranty and Liability

(1)            The Software is provided “as is” and “as available”. speed4work UG (haftungsbeschränkt) provides YOU with no contractual warranties or conditions either expressed or implied, including but not limited to, the implied warranties or conditions of merchantability, fitness for a particular purpose, and non-infringement, regarding the Software or support. YOU assume responsibility for the selection of the Software to achieve intended results and for the installation, use and results obtained from the Software. Further, there is no contractual warranty of title, enjoyment, lack of infringement or that the operation of the Software will be uninterrupted or error-free.

(2)            YOUR statutory warranty rights under this SLA are subject to the following restrictions:

  1. speed4work UG (haftungsbeschränkt)’ liability regardless of negligence or fault with regard to initial defects of the Software is hereby excluded.
  2. In the event of a defect of the Software, YOU are only entitled to claim supplementary performance and delivery of the Software free of defects, pursuant to Section 5 (Installation, Support), above.
  3. In case that the supplementary performance and delivery of the Software finally fails within reasonable time or if the supplementary performance and delivery of the Software is not reasonable at all, YOU shall be entitled to withdraw from this SLA by giving written notice to speed4work UG (haftungsbeschränkt). In the event of YOUR withdrawal from this SLA YOUR claims for damages due to the termination of this SLA are restricted to the reimbursement of the Fee paid to speed4work UG (haftungsbeschränkt), pursuant to Section 4 (License Fee), above. The reimbursement of the Fee is limited on a pro-rata basis to the time period during which YOU are not able to use the Software.

(3)            speed4work UG (haftungsbeschränkt)’ liability under this SLA is furthermore subject to the following restrictions:

  1. speed4work UG (haftungsbeschränkt) is liable without any restriction 1) in case of willful misconduct or gross negligence, 2) in case of bodily injury and/or injury of health, and 3) according to the applicable provisions of the German Product Liability Act.
  2. In case of a slightly negligent violation of a main contractual duty of this SLA, which has to be fulfilled in order to enable the execution of this SLA in an orderly manner and on whose fulfillment YOU could usually rely and whose violation would endanger the achievement of the purpose of this SLA, YOUR claims against speed4work UG (haftungsbeschränkt) under this SLA are limited to direct losses which are foreseeable and typical for this type of software license agreement. The liability of speed4work UG (haftungsbeschränkt) for loss of, or damage to, data is limited to the refund of the typical effort for data recovery in case of regular and suitable security backups by YOU.
  3. speed4work UG (haftungsbeschränkt) shall not be liable for any other slightly negligent violation of any contractual and/or statutory duty. Under no circumstances speed4work UG (haftungsbeschränkt) shall be liable for any loss of use, interruption of business, or any direct, indirect, special, incidental, and/or consequential damages of any kind, including loss of, or damage to, data, lost profits, business, revenue, goodwill, or anticipated savings, even if informed of their possibility. YOU assume the entire risk as to the quality and performance of the Software. As some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, the above limitation or exclusion may not apply to YOU in full, but shall be interpreted to apply to the maximum extent permissible under applicable law.
  4. speed4work UG (haftungsbeschränkt) is not liable for damages of any kind which are caused by unauthorized use of the Software and/or use of software that is not authorized by speed4work UG (haftungsbeschränkt). Software is authorized by speed4work UG (haftungsbeschränkt), if and only if it is electronically signed by speed4work UG (haftungsbeschränkt)’ code signing certificate.

(4)            The liability restrictions provided in this Section 8 are applicable to the employees, e.g., directors, software developers, sales and support staff, technicians, subcontractors and suppliers of speed4work UG (haftungsbeschränkt).

 

9 Entire Agreement and Modifications

(1)            This SLA constitutes the entire understanding and contract between the parties and supersedes any and all prior and contemporaneous, oral or written representations, communications, understandings, and agreements between the parties.

(2)            This SLA may not be modified or amended unilaterally by YOU, including by custom, usage of trade, or course of dealing, except by an instrument in writing signed by duly authorized representatives of both parties.

(3)            speed4work UG (haftungsbeschränkt)reserves the right to unilaterally change or modify any of the terms and conditions of this SLA. think‑cell Sales shall give written notice to YOU of any such changes. In the event of a change, YOU shall have the right to terminate this SLA for a good cause by written notice within four (4) weeks after having received the written notification from think‑cell Sales. In case of termination the Fee paid to think‑cell Sales will be reimbursed to YOU on a pro-rata basis for the remaining term of this SLA. By continuing to use the Software following speed4work UG (haftungsbeschränkt)’ notice of change, YOU accept the changes of this SLA which were unilaterally provided by speed4work UG (haftungsbeschränkt) and agree to be bound by such changes.

 

10 Governing Law and Attorneys’ Fees

(1)            The validity and interpretation of this SLA and the rights and obligations of the parties hereunder shall be exclusively governed by the law of the Federal Republic of Germany. The parties hereby waive the application of the rules on the conflict of laws and the United Nations Convention on the Sale of Goods (CISG).

(2)            All disputes arising out of this SLA and/or in connection with this SLA shall be subject to the exclusive jurisdiction of the local court of Munich.

(3)            In any action or suit to enforce any right or remedy under this SLA or to interpret any provision of this SLA, the prevailing party shall be entitled to recover its costs, including reasonable attorney’s fees.

 

11 Severability and Survival

(1)            In the event that any provision is found invalid or unenforceable pursuant to judicial decree or decision, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this SLA shall remain valid and enforceable according to its terms. The same applies for loop-holes in this SLA.

(2)            The provisions of Sections 1, 2 (6-8) and 8 through 11 shall survive the expiration or termination of this SLA. The mandatory statutory provisions applicable between the parties remain unaffected.

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