End-User License Agreement
End-User License Agreement
Last changed: 09 July 2015
Art. 1 Scope of Application
- The subject matter of this End-User License Agreement (hereinafter referred to as “License Agreement”) is the granting of rights in and to the software of yasoon (hereinafter referred to as “Software”) by yasoon GmbH, Waldparkstraße 8, 68163 Mannheim, Germany (hereinafter referred to as “yasoon”) to the end-user (hereinafter referred to as “Licensee”).
- This License Agreement applies both to companies and legal entities under public law as well as to consumers. It applies to the provision of the Software free of charge (e.g., during a test phase) and to the purchase of a license of the Software for remuneration.
- General terms and conditions of Licensee deviating from this License Agreement will not become a part of this Agreement, including all cases where yasoon does not ex-pressly object to them.
Art. 2 Test Phase, Conclusion of License Agreement
- Licensee is granted the right to use the Software for testing purposes during an initial term of 30 days following the download; this use will not be subject to license fees. During this test phase, Licensee may discontinue the use of the Software at any time. Licensee’s right to use the Software free of charge will automatically expire at the end of the test phase and Licensee shall delete any Software copies, unless it purchases a license.
- In the event that Licensee purchases a license of the Software via the Internet, the presentation of the Software on the yasoon website does not constitute a legally binding offer by yasoon, but only a non-binding invitation to Licensee to submit an offer on its part. When the ordering process is completed by Licensee by clicking the “Pay” button, Licensee submits a binding offer for the conclusion of a License Agreement that is subject to license fees. Prior to the completion of the ordering process, Licensee will have the opportunity to check its ordering data for errors and, if applicable, make corrections and/or abort the ordering process.
- yasoon will confirm the receipt of the electronic order from Licensee by emailing an automatic receipt confirmation. In this receipt confirmation, yasoon also declares that Licensee’s offer was accepted so that a binding License Agreement is concluded when Licensee receives this email confirmation. In addition to the ordering data of Licensee, this email confirmation will also include the invoice and this License Agreement as (printable) attachments. yasoon will activate the Software for Licensee’s use directly upon the completion of the ordering process.
- yasoon will store Licensee’s individual ordering data electronically. Licensee can print its ordering data in the course of the ordering process and will automatically receive them as part of the receipt confirmation. The License Agreement in its then current version may also be retrieved and printed from the yasoon website at any time. The Agreement is concluded in the English language.
Art. 3 Right to Revocation
Consumers that have purchased a license of the Software against remuneration have the right to revoke the License Agreement. Consumers are individuals that enter into a legal transaction for a purpose that cannot be primarily attributed to their commercial nor self-employed activities. For further information on consumer’s right to revocation please refer to the Exhibit of this License Agreement.
Art. 4 Provision of Software and Pre-Conditions for its Use
- When Licensee purchases a license, yasoon will activate the Software for permanent use. The Software will be provided to Licensee exclusively in machine code (executable version); Licensee has no right to receive or use the source code. User documentation is available to Licensee in the English language in the form of a help portal on the yasoon website. Licensee will be responsible for installing the Software on its system.
- The scope of functionality of the Software is set forth in the product description published by yasoon and in the user documentation. Prior to the conclusion of the License Agreement, Licensee has verified that the Software and its functionality meet its requirements and expectations. It is familiar with the key features and the operating conditions of the Software.
- In the event that Licensee orders Software updates it will be responsible for their installation. If an update replaces a previous Software version, Licensee’s rights under this License Agreement will expire with regard to the replaced Software version as soon as it has installed the update.
- The system requirements that are required for the trouble-free use of the Software at Licensee’s facilities are described on the yasoon website. Licensee bears the sole responsibility for meeting these system requirements. yasoon expressly advises Licensee that it is not possible to check and test the Software for its compatibility with and operability in all system environments that may be used. yasoon does not warrant the future operability of the Software, e.g., following a hardware or operating system change at Licensee’s facilities.
- The Software will be embedded in Licensee’s software landscape as an add-on or plug-in (in particular, in connection with the email program Microsoft Outlook). Due to this close technical integration and interdependencies with other programs of Licensee, yasoon does not warrant the future operability, interoperability and compatibility of the Software in the event of a release change in Licensee’s software environment. In particular, a release change within Licensee’s software environment (especially when Microsoft Outlook is updated) may require Licensee to acquire and install a new update of the Software.
Art. 5 Grant of Rights
- yasoon reserves any copyrights and other rights in and to the Software (including all updates) for itself and/or its licensors with regard to the business relationship with Licensee. Licensee is granted a non-exclusive right to use the Software in accordance with the provisions set forth below subject to the condition precedent of payment of the full licensee fees.
- yasoon grants Licensee a non-exclusive, indefinite and world-wide right to use the Software for its own purposes. Licensee has the right to use the Software with the licensed number of Named Users. “Named User” means that access to the Software is restricted to the Licensee itself and/or the individuals that were named by Licensee and for whom valid licenses had been acquired under this License Agreement. Licen-see and/or the Named Users are authorized to install the Software on the agreed num-ber of devices and to load it into the memory of such devices to the extent required for the Software use within the licensed scope.
- Licensee has the right to make the necessary backup copies of the Software. A backup copy on a moveable data medium shall be marked as such, and the copyright notice of the original data medium shall be attached to it. Licensee shall not change, modify or remove copyright notices contained in the Software or other notices, numbers, marks, or features serving the purpose of program identification.
- yasoon reserves any other rights, in particular, the right to distribute the Software in any manner, including renting, the right to rearrange or modify the Software, and to make the Software publicly and non-publicly available (e.g., on a network). Any use of the Software by or on behalf of third parties (e.g., within the scope of data center operations, Software as a Service, cloud computing, etc.) requires the prior written consent from yasoon.
- Prior to any decompiling for the purpose of achieving interoperability of the Software, Licensee shall request yasoon in writing to make available the necessary information and records within a reasonable period of time. Licensee is not permitted to decompile until the time period granted for providing information and records has expired without result and only within the statutory limits set forth in § 69e of the German Copyright Act. Prior to commissioning third parties with the decompiling of the Software, Licensee shall submit a written declaration from such third party to yasoon in which this third party agrees to be bound to confidentiality directly vis-à-vis yasoon.
- Licensee shall not provide the Software to a third party, unless it fully and finally discontinues its own use of the Software. The temporary or partial transfer to third parties or the transfer to several third parties is not permitted. Any transfer of the Software requires the prior written consent from yasoon. yasoon shall grant its consent provided that Licensee submits a written declaration from the third party in which it agrees vis-à-vis yasoon to comply with the license terms, and if Licensee confirms in writing that it has provided all original copies of the Software to the third party and that it has deleted in an unrecoverable manner any Software copies that it had made itself.
- With regard to test installations, Licensee’s rights to use are restricted to the term of the test period and to such acts that serve the evaluation of the state and properties of the Software, its suitability for the use intended by Licensee and the examination of its compatibility with the system and software environment of Licensee.
- Any use of the Software that exceeds the rights granted to Licensee requires the prior written consent from yasoon. In the event of an exceeding use without this consent, yasoon may charge Licensee for the exceeding use (including in the past). Any other rights of yasoon due to the exceeding use remain unaffected.
Art. 6 License Fees
- Prices quoted to consumers include the then-valid statutory value added tax, and prices quoted to business persons are subject to the applicable statutory value added tax (if applicable) plus any customs duties, charges or other public levies or taxes (if any).
- If Licensee purchases a license yasoon will provide Licensee with the Software for payment of a one-time license fee. The amount of the license fee is indicated on the offer submitted by yasoon and/or will be displayed to Licensee in the course of the on-line ordering process; alternatively, it is set forth in the product-specific yasoon pricelist that can be retrieved via the yasoon website. The license fee will become due for payment promptly upon the purchase of the Software license. The license fee will be collected via credit card; companies and business persons may also request payment against invoice.
- In the event that yasoon provides professional services to Licensee (e.g., consulting services) they will be invoiced on a time and material basis subject to the agreed hourly rate, unless the parties have agreed otherwise. yasoon will issue invoices to Licensee for these services on a monthly basis at the beginning of the month following the service provision together with the activity reports customarily used by yasoon.
- Invoices issued by yasoon shall be due for payment within fourteen (14) days after the invoice date with no deductions. In the event that Licensee is in default with its payment for an invoice, yasoon may exercise its statutory rights without any restrictions.
Art. 7 Claims for Defects
- If Licensee is a consumer and purchases a license against remuneration, the following Articles 7, 8 and 10 below will not apply. In the event of Software defects, consumers have the right to assert unrestricted warranty claims according to the applicable statutory provisions.
- In the event that yasoon provides the Software under a license for remuneration (purchase agreement), yasoon warrants that the Software complies with the description on the yasoon website, in the user documentation and in this License Agreement. Licensee shall promptly report any defects of the Software. The report shall include, to the extent possible, a comprehensible description of the error symptoms, supported by written records (e.g., error logs). To the extent that statutory provisions require Licensee to inspect the Software for defects and to notify yasoon, these obligations remain unaffected.
- Defects within the meaning of this warranty clause shall only be such defects that are reproducible and caused by quality deficiencies of the Software. Thus, a functional impairment that, e.g., results from a change of the operating system, a release change within Licensee’s software environment, mal-operation or other reasons for which Licensee is responsible shall not be deemed to be a defect. Furthermore, yasoon shall be released from its liability for defects if Licensee has modified the Software or used it in violation of the License Agreement, unless Licensee is able to show that the defect is not related to these circumstances.
- In the event that a defect of the Software can be shown to exist, yasoon initially has the right and obligation to subsequent performance. At the option of yasoon, subsequent performance shall be fulfilled by the rectification of the defect, by making available an update or by providing to Licensee a reasonable possibility to avoid the consequences of the defect (workaround). In the event that a defect does not affect the Software functionality or only causes a slight impairment, yasoon has the right to rectify the defect by providing a new update within the scope of its scheduled release planning.
- In the event that subsequent performance finally fails (for each notified defect no less than two (2) attempts are permissible) or if yasoon refuses to carry out activities for subsequent performance, Licensee has the right to either reduce the license fee or – in the event of a material defect – to rescind the License Agreement. Claims to damages and reimbursement of wasted expenditures are subject to Art. 9 of this License Agree-ment.
- With regard to Software updates Licensee may only assert claims based on defects, if any, for the respective new features included in the update. Any claims based on defects that already existed in the previous Software version, but had not been discovered, remain unaffected.
Art. 8 Infringement on Proprietary Rights
- yasoon warrants that the Software provided to Licensee is free from third-party proprietary rights and indemnifies and holds Licensee harmless from and against third-party claims based on the infringement on proprietary rights subject to the following provisions.
- In the event that third parties assert claims against Licensee based on the infringement on their proprietary rights as a consequence of the use of the Software in compliance with this Agreement, Licensee shall notify yasoon promptly and comprehensively in writing. yasoon has the right, but is not obligated to handle the dispute with the third party in court and out of court in its sole responsibility. In the event that yasoon acts upon this authorization, Licensee shall reasonably assist yasoon free of charge. Licensee shall not recognize any third party claims at its own discretion.
- In the event that it can be shown that defects as to title existed at the date of the passing of the risk, yasoon will procure the lawful right to use the Software and grant it to Licensee. Alternatively, yasoon has the right to replace the Software affected with an-other, equivalent software, provided, however, that Licensee can be reasonably expected to accept this. In the event that the infringement on third party proprietary rights and/or a legal dispute regarding the corresponding third party rights can be avoided or settled by Licensee using the current Software version that had been provided by yasoon, Licensee is obligated to install and use this Software version within the scope of its duty to minimize damage, unless Licensee proves that it cannot be reasonably expected to use the current Software version.
- yasoon shall indemnify and hold Licensee harmless from and against any damage caused by infringements on proprietary rights within the liability limitations set forth in Art. 9, provided, however, that this damage was caused by a defect as to title for which yasoon is liable. In all other regards, the provisions regarding defects as to quality set forth in Art. 7 shall apply accordingly to any claims based on defects as to title.
Art. 9 Liability
- yasoon shall only be liable for damage resulting from the use of the Software provided free of charge and/or during a test phase which is not subject to remuneration in the event of intentional wrongdoing or gross negligence.
- Apart from that, yasoon shall only pay damages and reimburse wasted expenditures within the limits set forth below, irrespective of the legal cause (e.g., contractual liability, tort):
- in case of intentional wrongdoing and gross negligence for the full amount;
- in all other cases only for violation of a contractual duty that is of such material im-portance that the attainment of the purpose of the Agreement would be jeopardized so that Licensee may rely on compliance with the same (Kardinalpflicht). In these cases, yasoon shall only be liable for the foreseeable and typical damages.
- If Licensee is a company or business person, the typical and foreseeable damage within the meaning of the foregoing sub-paragraph is limited to the contract volume, however, not less than EUR 10,000.00 per damage incident (as a maximum liability cap).
- Except in case of intentional wrongdoing and gross negligence, liability for data loss is limited to the expenses typically incurred for data restoration, provided that Licensee has made backup copies on a regular basis and in a manner that is reasonable in view of the level of risk.
- Liability for personal injury and under the Product Liability Act (ProdHaftG) remains unaffected by the above provisions.
Art. 10 Statute of Limitations
- The limitations period for claims of Licensee resulting from defects and for damages and reimbursement of wasted expenditures is one (1) year. This shall not apply if the defect exists in the form of an id rem right of a third party and if the third party may claim the surrender of the Software based on this right.
- The commencement of the statute of limitations period is subject to the applicable statutory provisions. If a maximum period is defined in the statutory provisions, the claim shall come under the statute of limitations no later than upon the expiration of five (5) years from the date on which the claim arose.
- The statutory limitations period for claims against yasoon due to an intentional or grossly negligent violation of a duty, in particular, in the event of the malicious concealment of a defect, assumption of a guarantee and personal injury or under the Product Liability Act (ProdHaftG) remains unaffected.
Art. 11 Confidentiality and Data Protection
- Licensee agrees to treat any business and trade secrets of yasoon and any other business information of an obviously confidential nature that are disclosed to Licensee or of which it may become aware in any other manner in strict confidence. It shall use such information only for the purpose specified in the Agreement and shall not disclose it to unauthorized third parties. In particular, confidential information shall include the Software provided to Licensee. Licensee shall ensure that unauthorized third parties are unable to gain access to confidential information.
- Licensee will have to enter a valid email account prior to the initial download of the Software. In the event that Licensee acquires the license under a purchase agreement, additional data will have to be entered (e.g., name, address, user data, payment data, etc.). yasoon will store and process such personal data of Licensee only to the extent required for processing and performing the License Agreement or to the extent that Licensee has granted its consent to the processing of its data. The processing of credit card payments is outsourced to an external payment service provider that will be allowed access to Licensee’s payment data for processing the payment transactions.
- In addition, yasoon will also store Licensee’s computer name in order to monitor its compliance with the license terms and conditions, in particular, with the licensed scope of Software use. Licensee hereby grants its express consent to this form of data processing.
Art. 12 Final Provisions
- Licensee is not allowed to assign or transfer any contractual rights or duties to third parties – including any affiliated companies of Licensee – unless it has obtained the prior written consent of yasoon.
- In the event that Licensee materially violates any provision of this License Agreement or if it is in default with its payment of the license fee, yasoon has the right – in addition to other rights that remain unaffected – to revoke the right to use the Software granted to Licensee.
- This License Agreement is governed by German law, and the UN Convention on the Sale of Goods is excluded. Mandatory national consumer protection law at Licensee’s place of residence remains unaffected. Mannheim, Germany, is the place of jurisdic-tion for all disputes arising out of or in connection with this License Agreement, if Licensee is a business person or treated as such, or if its place of business or residence is abroad. yasoon has the right to bring action against Licensee before any other national or international court having jurisdiction.
- If any provision of this License Agreement is or should become invalid or unenforceable, or in the event of a gap in this License Agreement, the remaining terms and provisions governing the contractual relationship shall remain in full force and effect. The invalid, unenforceable or missing provision shall be replaced by such a valid provision that most closely reflects the economic and business intention of the parties at the time the License Agreement was concluded.
Consumers have a right to revocation as set forth below. A “consumer” is any individual that enters into a legal transaction for purposes that cannot be primarily attributed to their commercial nor self-employed activities:
Information on the Right to Revocation
Right to revocation:
You have the right to revoke this Agreement within fourteen (14) days without giving reasons.
The period for the revocation of the License Agreement begins to run fourteen (14) days from the date on which the License Agreement is concluded.
In order to exercise your right you need to notify us,
of your decision to revoke this Agreement by a clear statement (e.g., a letter sent by mail, fax or email). You may use the attached specimen form for revoking the Agreement, however, its use is not mandatory.
The revocation period shall be deemed to have been complied with if you dispatch the no-tice on the exercise of the right to revocation prior to the end of the revocation period.
Consequences of a revocation
If you revoke this Agreement, we shall refund any payments that we have received from you, including shipping charges (with the exception of additional costs that were incurred because you selected another form of shipment than the standard delivery that was the cheapest option offered by us) promptly and not later than within fourteen (14) days from the date on which we received your notice regarding the revocation of this License Agreement. We shall use the same payment mode for this refund that you had used for the original transaction, unless we expressly agree otherwise with you. You will not be charged any fees for this refund in any event.
End of information on the right to revocation
Specimen Form for Revocation
- (If you wish to revoke the Agreement, please fill in this form and return it to us.)
- yasoon GmbH
- Waldparkstr. 8
- 68163 Mannheim
- I/we (*) hereby revoke the Agreement on the purchase of the following goods (*) / the pro-vision of the following services (*) signed by me/us (*)
- Ordered on (*) / received on (*)
- Name of consumer(s)
- Address of consumer(s)
- Signature of consumer(s) (only if in paper form)
- (*) Delete anything that is inapplicable.