License terms and conditions and terms and conditions of use for digital content and software from Emulation S.Hein
Article 1 Scope and general information
1. These license terms and conditions and terms and conditions of use (hereinafter referred to as the “Terms”) shall be agreed between Emulation S.Hein (hereinafter referred to as “Emulation S.Hein”) and the customer and apply to the provision of ordered software licenses (hereinafter referred to as the “License/Licenses”), including user documentation and other supporting material. These Terms shall supplement the Terms of Service of Emulation S.Hein.
2. These Terms shall apply exclusively. Any General Terms and Conditions of the customer that deviate from, conflict with or supplement these Terms shall only become part of the contract if and to the extent that Emulation S.Hein has expressly agreed to them in writing.
3. Individual case-by-case agreements made with the customer (including ancillary agreements, additions and amendments) shall, in any event, prevail over these Terms. The content of such agreements must, however, be set forth in a written contract with or written confirmation from Emulation S.Hein.
4. Any legally significant declarations and notifications that the user is required to provide to Emulation S.Hein following the conclusion of the contract (such as deadlines, notifications of defects or declarations of withdrawal or reduction) must be made in writing to be valid.
5. Emulation S.Hein is entitled, with the user’s consent, to amend the content of the existing contract and these Terms provided that this amendment is reasonable for the customer taking into account the interests of Emulation S.Hein. The customer’s consent to such an amendment to the contract shall be deemed to have been given if the customer has not objected to the amendment within one month after receiving the notification of the amendment. Emulation S.Hein agrees to inform the customer of the consequences of not objecting when it notifies the customer of the amendment.
6. Emulation S.Hein offers the licenses exclusively for commercial use by e.g. businesses and public-sector bodies. The customer declares that it acts as, or on behalf of, a business, i.e. in the exercise of a commercial or independent professional activity, or on behalf of a public-sector body.
Article 2 Rights of use
1. As part of these Terms Emulation S.Hein grants the customer the non-exclusive, temporary and revocable right to download the software and use it as a single License on a physical terminal for the agreed period of service.
2. The software is licensed, but not sold, for the customer’s own use under the terms of this agreement. The software shall remain the property of Emulation S.Hein. Emulation S.Hein shall retain all rights to any full or partial reproductions of the software, including its documentation, logos, trade marks and interfaces.
3. The customer is not entitled to sell, lend, lease, hire out or sublicense the Licenses, the software itself or any variations thereof. Transferring the software or variations thereof in exchange for payment is expressly prohibited.
4. The customer acknowledges that it is not permitted to remove, conceal or modify any indications of ownership rights that are contained in the software or have been added thereto. The same shall apply to copyright and trade mark signs.
5. The license agreement covers all types of currently known and unknown uses that are or will become necessary for achieving the purpose of the contract, even if they only become valid for the software covered by this contract following a change in the law or for other reasons or only become known at a later point in time.
6. All other rights not expressly granted to the customer by Emulation S.Hein in this paragraph shall be reserved exclusively by Emulation S.Hein. The right to privacy shall remain unaffected.
7. The License Agreement shall only become effective once the customer has paid the amount owed in full. Emulation S.Hein may allow a provisional use of the software prior to this time. The rights laid down in this paragraph shall not be transferred if such provisional permission is granted.
8. Emulation S.Hein shall offer limited support for new versions of the software (such as patches, bug fixes, updates and upgrades) for the duration of the agreed period of service only. Any support outside of this period shall be subject to the conclusion of a separate support agreement.
Article 3 Contract and License period and Cancellation
1. Contracts concluded between Emulation S.Hein and the customer for the purchase of software and licenses for this software from Emulation S.Hein are concluded for a certain period of time ("service period").
2. The License Agreement based on these Terms shall commence with the payment of the License fee and end with the expiration of the agreed period of service. The Terms of Service of Emulation S.Hein shall apply in addition.
3. Contracts with a term of one (1) year may be terminated by giving four (4) weeks' notice to the end of their billing period and shall each be extended for a further period of one year unless the cancellation is terminated in good time at Emulation S.Hein has been received.
4. Contracts with other terms are terminable at any time and have no notice period. These contracts extend automatically as soon as the current month is over.
5. This does not affect the right of both contracting parties to terminate the contract without notice for good cause. An important reason exists in particular if:
- the customer does not accept the changes to these terms,
- the customer is in arrears with the due payments more than four weeks,
- a breach by the customer against legal prohibitions, in particular the violation of copyright, competition law, name law or data protection regulations exists.
6. Ordinary and extraordinary cancellation must be in writing in order to be effective. A cancellation without notice requires in principle that the customer is warned in writing and asked to eliminate the alleged reason for cancellation without notice in a reasonable time, unless there are special reasons, that make Emulation S.Hein adherence to the contract even without prior warning.
7. Without prejudice to any other rights of Emulation S.Hein, the License granted to the customer shall lapse automatically if the customer breaches the License Agreement, the other provisions under these Terms or the Terms of Service of Emulation S.Hein. In such a case, the customer is obliged to destroy the software and any copies thereof and stop using it immediately.
Article 4 Liability
1. The customer guarantees that it will obtain or has already obtained all rights, other than the License covered by this contract, necessary for the intended use and, in this connection, releases Emulation S.Hein from any third-party claims.
2. Emulation S.Hein shall have unlimited liability for prejudice caused intentionally or through gross negligence by it or any of its agents or legal representatives. For slight negligence, Emulation S.Hein shall be liable only insofar as the breach concerns a duty considered of essential importance for achieving the object of the contract (cardinal duty). In this case, however, the amount shall be limited to foreseeable prejudice typically associated with this type of contract.
3. Emulation S.Hein shall further be liable for claims under the Product Liability Act, and also on the grounds of other compelling statutory liability provisions. In the event of prejudice due to injury to life, limb and health, Emulation S.Hein or any of its legal representatives or agents shall have unlimited liability in terms of amount, even for a simple breach of duty.
4. The availability of the software shall exclude times in which Emulation S.Hein’s server is not available over the internet for technical reasons (such as maintenance) or for reasons beyond the control of Emulation S.Hein. Emulation S.Hein accepts no liability for events of this kind.
5. Emulation S.Hein accepts no liability for malfunctions caused by third-party services for server hardware, storage capacities or network services.
Article 5 Final provisions
1. These Terms and all legal relationships arising therefrom between Emulation S.Hein and the customer shall be subject to the law of the Federal Republic of Germany. Application of the United Nations Convention on Contracts for the International Sale of Goods shall be excluded.
2. No verbal ancillary agreements have been made. Any amendments or additions to these Terms must be made in writing. The same shall apply to changes to this written form requirement.
3. The place of performance and the place of jurisdiction for any disputes shall be Freiburg im Breisgau, Germany.
4. If translations of these Terms are made in other languages, the German version shall remain the only legally binding version.
Version dated 17.04.2019