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§ 1 Ingame Shop
1.1 All of our supplies and services are provided exclusively on the basis of the version of the following Standard Terms and Conditions which is current when the order is placed. If not expressly agreed in writing, differing terms of business do not apply.
1.2 Both consumers and businesses are a 'customer' within the meaning of these terms and conditions. Consumers within the meaning of the terms and conditions are individuals who conclude contracts for a purpose which can be attributed neither to their commercial nor their professional activities. Business within the meaning of the terms and conditions are individuals or corporate bodies or partnerships vested with legal capacity, which, when the contract is effected, are dealing with us in the exercise of their commercial or independent professional activities.
1.3 As the liability of Nemesis games is limited or excluded according to the following conditions, this also applies to the legal representatives and agents of Nemesis games.
§ 2 Conclusion of contract, formation of the contract
2.1 By your order you make a binding offer to us to enter into the contract with you. We may accept this offer by sending a confirmation of contract to you by email within 24 hours of our receiving your order. The contract comes into being when this confirmation of order is sent.
2.2 You may obtain comprehensive information about the desired product in the respective product description. You can purchase our products by clicking on the [Subscribe Now] button within the respective short product description on the overview page of all products. By doing this, the respective product order form opens. There you will find a detailed description of the product.
If you are not yet an existing customer of ours, please first enter the requested account data (Username and Password), followed by your address data into the form.
If you are an existing customer, and you are logged in via the separate customer log-in (the field Username shows your login name), please check the address data shown.
If you are an existing customer, but not yet logged-in, please first enter your account data (Username and Password) in the login fields in the order form and press the button [Login (for existing clients)]. By doing this, you will have been logged in (the field Username will show your login name). Please check the address data shown.
2.3 During the order process you accept our Standard Terms and Conditions and the information about your rights of cancellation. These consist of the acknowledgement of the "Special information for digital deliveries" and of the "Special information when buying services".
2.3.1 Special information for digital deliveries
“I agree explicitly that you begin with the execution of the contract before the end of the withdrawal period. I am aware that by this consent I lose my right of withdrawal with the start of the execution of the contract.”
2.3.2 Special information when buying services
“I agree and expressly require that you begin with the execution of the contracted services before the end of the withdrawal period. I am aware that with the complete performance of the contract, I lose my right of withdrawal.”
2.4 Additionally you confirm in the order form, that the postal address you entered is correct.
2.5 In the order form, you have the option to register as a business. For companies within the EU, you will be able to enter your international value added tax id to get a reverse charged invoice.
2.6 You can rectify entry errors before sending the form or by breaking off the order process and starting from the beginning again.
2.7 In order to conclude the purchase you must click the [Subscribe with obligation to pay!] button. By doing this, you will transmit the order to us. We then will send you a confirmation of your order by email, by means of which the contract is brought into being.
If you have chosen the "Paypal" payment option, you will be re-directed to Paypal's web site. If you interrupt the process here, you will need to start over by filling in the order form again.
As a new customer you will not be able to login to our web site, until you have made a successful payment. Existing customers with an expired subscription are able to login to our web site, but without having access to the areas available only to active club members.
2.8 In the case of orders in our on-line shop, the contract comes into being with:
Nemesis games
Schlangenstraße 11
D-31162 Bad Salzdetfurth
Phone: +49 (0)15902628271
email: nemesis-gaming@mail.de
§ 3 Storing of the contract wording
We store your order and the order data entered. We will send you a confirmation of order by email containing all the order information. You will have the opportunity to print the Standard Terms and Conditions out before sending the order to us. Likewise, you will have the opportunity to print out the order after sending the order to us. Finally, you may at any time access the orders you have made via your customer account.
§ 4 Cancellation terms and conditions for consumers on delivery of digital content (downloads)
The following cancellation terms are only for consumers on delivery of digital content which is not supplied on a tangible medium:
Cancellation terms and conditions
Right of cancellation
You may revoke your contract statement within a period of fourteen days without giving a reason.
The withdrawal period is fourteen days from the date of conclusion of the contract.
To exercise your right of cancellation, you must provide us (Nemesis games, Schlangenstraße 11, D-31162 Bad Salzdetfurth, phone: +49 (0)15902628271, email: nemesis-gaming@mail.de) with a clear explanation (e.g., by means of writing to us by post, fax or email) of your decision to withdraw from this contract. You can use the enclosed specimen form for this, but it is not mandatory.
In order to comply with the time limit for cancellation, it is sufficient to have conveyed your intention to exercise the right of cancellation to us before the withdrawal deadline by the means listed above.
Consequences of cancellation
If you withdraw from this contract, we will refund you any and all payments that we have received from you, including delivery costs (with the exception of any additional costs arising from the fact that you have chosen a type of delivery other than the very low standard delivery offered by us) immediately, at the latest within fourteen days from the date on which we have received the message of your cancellation of this contract. For this refund, we will use the same payment method that you used for the initial transaction, unless you have explicitly agreed otherwise; in no case you will be charged fees for this refund.
The right of cancellation expires in a contract for the supply of digital content on a non-tangible disk, if the entrepreneur has started the execution of the contract, after the consumer
. has expressly agreed that the entrepreneur begins with the execution of the contract before the end of the withdrawal period, and
has confirmed his knowledge that he loses his right of withdrawal by his/her agreement with the start of execution of the contract.
§ 5 Cancellation terms and conditions for consumers on purchase of services (membership, support, online content)
The following cancellation terms are only for consumers on purchase of services:
Cancellation terms and conditions
Right of cancellation
You may revoke your contract statement within a period of fourteen days without giving a reason.
The withdrawal period is fourteen days from the date of conclusion of the contract.
To exercise your right of cancellation, you must provide us Nemesis games, Schlangenstraße 11, D-31162 Bad Salzdetfurth, phone: +49 (0)15902628271, email: nemesis-gaming@mail.de) with a clear explanation (e.g., by means of writing to us by post, fax or email) of your decision to withdraw from this contract. You can use the enclosed specimen form for this, but it is not mandatory.
In order to comply with the time limit for cancellation, it is sufficient to have conveyed your intention to exercise the right of cancellation to us before the withdrawal deadline by the means listed above.
Consequences of cancellation
If you withdraw from this contract, we will refund you any and all payments that we have received from you, including delivery costs (with the exception of any additional costs arising from the fact that you have chosen a type of delivery other than the very low standard delivery offered by us) immediately, at the latest within fourteen days from the date on which we have received the message of your cancellation of this contract. For this refund, we will use the same payment method that you used for the initial transaction, unless you have explicitly agreed otherwise; in no case you will be charged fees for this refund.
If you request the services to begin during the withdrawal period, you will be liable to pay us a reasonable amount which corresponds to a share of the service, comparable to the total extent of the service as provided in the contract, which has already been provided up to the date on which you notify us of the execution of the right of withdrawal.
The right of cancellation expires in a contract for the provision of services, if the entrepreneur has performed the service fully and has started the execution of the service, only after the consumer has given his explicit consent, and has confirmed at the same time his knowledge that he loses his right of cancellation with the complete performance of the contract by the entrepreneur.
§ 6 Specimen form for cancellation
(If you want to cancel the contract, please fill out this form and send it back.)
To
Nemesis games
Schlangenstraße 11
D-31162 Bad Salzdetfurth
Email: nemesis-gaming@mail.de
Hereby I/we (*) cancel the from me/us (*) concluded contract for the purchase of the following products (*)/performance of the following services (*)
Ordered at (*)/received at (*)
Name of the consumer(s)
Address of the consumer(s)
Signature of the consumer(s) (only with message on paper)
Date
(*) Delete as applicable.
§ 7 Prices, discounts and shipping costs
7.1 All prices consist of the net amount of the product (the membership), minus a possible discount, and if applicable, of the Value Added Tax of the home country of the purchaser. The costs are determined by the extent and duration of the chosen membership.
The for the purchaser valid Value Added Tax will be shown in the order form together with the resulting total amount charged after entering all data.
7.2.1 We offer discounts for our SobiPro club memberships on various occasions. These discounts are activated via a coupon code, which must be entered in the corresponding field (coupon code) BEFORE the purchase of the membership.
7.2.2 Furthermore, we can offer discounts for renewing SobiPro Club memberships (Bronze, Silver, Gold). The renewal must be done before expiry of the current membership. The amount of the discount granted depends on the remaining term of the current membership. The reduced price is displayed together with the regular price. The discount is automatically deducted. The new membership seamlessly connects to the ongoing membership. A discount for renewing is only granted if the same or a higher plan is chosen. No discount for renewing will be granted if a lower plan is chosen, or after expiry of the membership.
7.2.3 We do not grant discounts for product memberships.
7.2.4 Discounts are not combinable. If a renewing discount is applicable and a valid coupon code is entered, the higher of the two discounts is granted but not both.
7.2.5 No discount can be granted after conclusion of the contract. The final price (Total charge) displayed at the time of the purchase (pressing the button "Subscribe with obligation to pay!") is final. Problems with activating a discount have to be indicated before purchase.
7.2.6 All discounts granted are a voluntary service on our part. We can change the amount of discounts at any time or cease them completely. There is no entitlement to a discount or to a certain amount of a discount.
7.3 Since we supply digital downloads and services exclusively, there are, in principle, no shipping costs. In the case of supply by downloading via a network, the seller bears the costs of making the software available for download on the network, and the purchaser bears the costs of the download and the accruing costs to access the Internet to get support and the online documentation.
§ 8 Payment conditions
8.1 Payment is to be made in advance, either by bank transfer or via PayPal. We reserve the right to refuse individual methods of payment. When you choose the bank transfer payment method, we will provide our bank account details to you in the confirmation of order. Please always quote the order number as a reference, because otherwise we cannot allocate your transfer.
The invoice amount is to be transferred to our account within 10 days. The club access is enabled only after the money has reached our bank or PayPal account.
8.2 If you have a valid Value Added Tax number in another EU country, then, in accordance with § 4 No.1 b of the UStG [Value Added Tax Act] or Reverse Charge Procedure, we can send you an invoice excluding Value Added Tax once you have advised the number to us in the order form.
The validation of the Value Added Tax number is done automatically after leaving the input field for the number [VAT Number (for EU customers)]. Please check if you see "VAT number correct" appearing. We can issue an invoice without Value Added Tax Only in this case.
If the value of the order is less than €100.00 net, we may charge a processing fee of €5.00 for this.
8.3 Purchases from non-EU countries are generally regarded as VAT-exempt.
8.4 Once payment becomes overdue, interest will be charged on the purchase price at a rate of 5% above the base rate during the overdue period. We reserve the right to substantiate, and claim for, any greater loss resulting from the delay in payment.
§ 9 Warranty and liability
The warranty is provided in accordance with the statutory provisions.
We bear no liability whatsoever for free software which we provide for download, nor for software from third party providers, and we likewise do not provide any warranty in respect of such software.
§ 10 Customer service
Please contact us if you have any queries or complaints, or if you wish to make a claim. To do this, use our contact form at nemesis-gaming@mail.de.
§ 11 Duties of the purchaser
11.1 You have a duty to retain your shop access data and a duty of care in relation to it. Without this data you will have no access to updates, support and documentation resp. to the club area. The password must not be given to third parties.
11.2 Please make sure that the email address you have provided is correct, since otherwise the confirmation of order cannot be sent to you.
11.3 If you have lost your password, please use the reminder facility on the log-in form. For security and data protection reasons it is only possible to send a lost user name to the email address stated in the user data. If you don't know either your user name or your email address, you cannot be given access to a user account.
11.4 Before ordering the software, you must read the system requirements stated in the product description to check whether the software can be operated on your systems.
11.5 in the product order form you affirm that your supplied postal address, particularly your country is correct. This information will be used to calculate the value-added tax you are obliged to pay. If you make a false statement in order to avoid the resulting tax, this is tax evasion. In this case, we will suspend your account and ask you to pay the outstanding tax and a processing fee of 10 euros. If you do not pay this within a week, we are entitled to permanently disable your account without refund of the amount already paid. Alternatively, we may treat your payment as gross amount and adapt the term of your membership accordingly. The processing fee will be charged in any case.
§ 12 Blocking of the user account
If you sign on with incorrect information, or if there is a suspicion of fraud, we are entitled to block your user account and access to the club area. The same applies if you breach the product's licence conditions by disseminating the product or the documentation in an unauthorised manner.
§ 13 Cancellation of a membership
13.1 There is no obligation on our part to cancel a membership after you have agreed to the information in § 2.3.1 and § 2.3.2.
13.2 If we agree to a cancellation of your membership for any reason, a cancellation fee of 8 Euro net will be charged.
§ 14 Upgrade of a membership
14.1 If you would like to switch to a higher membership plan during the term of your membership, please contact us via our contact form (nemesis-gaming@mail.de). You will receive a coupon code for the remaining term of your current membership, which you can use when purchasing a new membership. The coupon code is valid 24 hours, non-transferable and only applicable once.
14.2 Your current membership will be terminated upon activation of your new membership.
14.3 A processing fee of 3 Euros net will be charged.
14.4 An upgrade of a product membership to a SobiPro Club membership is not possible.
II. Memberships (Product and SobiPro Club Memberships)
§ 1 Subject matter of the contract
(1a) SobiPro Club Membership
The buyer purchases from us a membership described in more detail in the respective product description. It entitles the buyer to a non-exclusive right of use for the software listed in the product description and enables access to support and application documentation.
(1b) Product Membership
The buyer purchases from us the non-exclusive right of use of the software listed in the product description. The software is always provided in connection with a product membership, which run for a fixed period and enables the buyer to receive updates and support for it.
The application documentation for the software contained in a membership is in English language and will be provided online as part of the membership. A membership will be bought for a fixed period. The duration complies with the chosen plan. A membership does not prolong automatically and cannot be cancelled.
It is not possible to extend a membership. To get further access to the benefits of a membership, the product (membership) must be repurchased.
The SobiPro Club Membership or Product Membership together with the therein contained benefits (software, documentation, support), are referred to below as the "subject matter of the contract", and are subject to the conditions of use agreed in this contract.
(2) The source code of the software is a component of the subject matter of the contract. Alterations to the source code are permitted, but they entail the loss of the right to support services.
(3) The nature of the software supplied by us is definitively determined by the description of services which is applicable when the software is downloaded and made available to the purchaser before the contract is concluded, and which is also described again in the application documentation. We are not liable for any additional characteristics of the software. In particular, the purchaser may not adduce any such obligation on our part from other descriptions of the software in public statements or in advertising unless we have explicitly given written confirmation of the additional characteristic(s).
§ 2 Scope of use
(1) We grant the purchaser a non-exclusive right of use in respect of the software with no time restriction, for the installation on any number of domains.
(2) The purchaser is authorised to copy the software on to a data carrier as a back-up. Otherwise, our right to the on-line copy expires in the same way as if the purchaser had received the software on a data carrier.
(3) If we cede the purchaser additions to the subject matter of the contract, by way of amendments (e.g. patches), or a new version of it (e.g. updates, upgrades), which replace the previously ceded subject matter of the contract ("original software"), these are subject to the provisions of this agreement.
(4) The application documentation will be provided online. Duplication or reworking of the application documentation is not permitted.
(5) We have the right to designate our name as the creator by means of a notice on the purchaser's domain.
(6) If the purchaser alters the source code or the database structure of the software and/or the main components required for the software to operate (SobiPro), we no longer guarantee the correct operation of the software.
(7) If the software, its applications and updates, is published under a GPL license, those license provisions govern its use.
In addition, the following additional terms are in effect: the trademark rights to the software, their applications and updates in the relationship of the parties belong exclusively to the Nemesis Games. This is especially true for the trademarks "Nemesis Games", "Nemesis Gaming" and "Nemesis-Games.de" and "Nemesis-Gaming.de". Also, in particular the Nemesis Games, Nemesis Gaming logos are protected under trademark law.
(8) If in the scope of services, a direct access to software can be carried out within the main software (repository access), a connection from the client’s server to the servers of Nemesis Games is required. A guarantee of the continued availability of the servers of Nemesis Games is not given. A minimum availability of the servers of Nemesis Games is also not guaranteed. With limited availability of the servers, Nemesis Gamesliability is limited to the damage caused by intent or gross negligence.
§ 3 Installation
(1) For installing the software we refer you to the installation instructions described in the application documentation, and in particular to the hardware and software environment that must be in place for the purchaser.
(2) In the case of software provided without charge by us, we are not obliged to draw up and provide application documentation. However, we provide optional information in this regard on our website. Under a club membership, the online documentation, for the free of charge main component (SobiPro), can be accessed.
§ 4 Protection of software and application documentation
(1) The purchaser will only give third parties access to the subject matter of the agreement if he has the prior written agreement of the seller. The purchaser's employees, and also other persons who are on the purchaser's premises in order to use the subject matter of the contract in accordance with the terms of the contract, are not deemed to be third parties. § 6 remains unaffected.
(2) The purchaser is not permitted to alter or remove copyright notices, markings and/or reference numbers or signs on the software.
(3) If the purchaser hands data carriers, memory sticks or other hardware on which subject matter of the contract is stored (whether in complete or partial form, unaltered or reworked), and surrenders immediate possession of these, he must ensure that the additional conditions according to §7 of GNU/GPL V3 of the stored subjects matter of the contract are fulfilled. This also applies to the distribution of the software via download.
(4) The online available application documentation may be copied for private purposes. A disclosure to third parties or publication of documentation on the internet or print media is not permitted and prohibited by law.
The copyrights to the documentation and the images contained therein are owned by Nemesis Games.A dissemination or publication without explicit written permission of Nemesis Games is prohibited. For copyright infringement, we reserve the right to take legal action.
§ 5 Support
(1) The buyer of a membership receives access to our ticket system. Here he receives support to those software contained in the respective membership and unless specified in the product description, to the free main component (SobiPro).
(2) The duration of the support depends on the particular specifications of the product and corresponds to the duration of the membership.
(3) The language used for support is English. Support in other languages may or may not be made.
(4) The support service ceases if the purchaser himself alters, or has altered by others, the purchased software or the main component required to operate the purchased software, and/or makes alterations to the database structure himself, or has such alterations made by others. This does not apply in respect of alterations to the template- or CSS files.
(5) If support can be provided only by directly accessing the purchaser's or purchaser’s customer’s server (website), such access must be provided, otherwise we cannot provide any support. If the purchaser installs the software on a server and we are not able to access this server, then we cannot provide any support.
(6) Before direct access to the server (website) of the purchaser or purchaser’s customer by support staff of Nemesis Games, the purchaser has to take appropriate and adequate security measures to protect its own files and data or the files and data of his customer from loss, destruction or damage. The purchaser carries disadvantages and additional costs arising from a breach of these obligations.
§ 6 Transmission
(1) For transmission of software which is published under GPL license, those license conditions apply in respect of transmission together with the additional conditions according to §7 of GNU/GPL V3. These additional conditions are accessible on our website and as a text file with the GPL license attached to any software package.
(2) A membership cannot be transferred to other persons or user accounts.
§ 7 Purchaser's cooperation and information duties
(1) The purchaser has informed himself of the essential operating features of the software and bears the risk in respect of whether these conform to his wishes and requirements; if he is unsure about any points, he must seek advice from our staff or from expert third parties before the contract is concluded.
(2) The purchaser has sole responsibility for setting up a fully operational hard- and software environment for the subject matter of the contract, and one which also has sufficient capacity taking into account the additional loading imposed by the subject matter of the contract.
(3) Before using the software, the purchaser will test it thoroughly to ensure it has no defects and that it can be used in the existing hard-and software configuration.
(4) The purchaser will observe the instructions provided by us for the installation and operation of the software; he will at regular intervals seek information about current instructions on our websites which are available via the internet, and he will take account of these instructions when operating the software.
(5) The purchaser will take reasonable precautions for the event that the software does not work properly, (at all or in part), (e.g. by backing up data on a daily basis, by diagnosing problems and faults, and by regularly monitoring the data processing results).
(6) The purchaser will bear any prejudice and additional costs resulting from a breach of these duties.
§ 8 Period of service
(1) The software is supplied in the version which is current at the time of supply.
(2) We effect the supply by making the software available for download on a network, and by informing the purchaser of this (order status change). Where applicable, he receives a code from us with which he can download the software in the download area of our website. In case of a SobiPro club membership, he will get access to the download area of the club. In addition, the purchaser can access the respective application documentation on-line via the membership.
(3) The transfer of risk is governed by the point in time when the software is made available for download on the network and when the customer is informed of this.
§ 9 Requirement to make a complaint in respect of a defect immediately on receipt of goods
In respect of all the products and services supplied by the seller in performing this contract, the purchaser assumes a duty to make a complaint in respect of any defect immediately on receipt of the goods in accordance with § 377 HGB [German commercial code).
§ 10 Ending of the right to use the subject matter of the contract
Once the membership has expired, the purchaser loses the right of access to the documentation, to support services, and to updates of the software. However, the rights to use the software itself remain unaffected by this.
§ 11 Free software
In the download area of our main page https://www.Nemesis-Games.de/, we offer software for free download. The software originates from us or from third party suppliers, and it is not subject to a commercial license. We do not accept any liability in respect of this free software, nor do we provide any warranty in respect of it. The use of the free software is explicitly at your own risk.
III. Miscellaneous
1. German law applies to the exclusion of UN purchasing law.
2. In the case of customers who conclude the contract for a purpose which cannot be attributed to their professional or commercial activities (consumers), this choice of law applies only in so far as it does not detract from the mandatory provisions of the law of the country in which he has his usual place of residence.
3. Frankfurt is the place of jurisdiction for all disputes arising under the contractual relationship if the person placing the order is a tradesman, a corporate body under public law, or a separate estate under public law.
4. All alterations to these Standard Terms and Conditions must be made in writing. This applies to altering the written form clause itself.
5. The contract languages are German or English.
6. If one or several provisions of these STC's are invalid, the contract otherwise remains valid. In so far as the provisions are invalid, the content of the contract is governed by the statutory provisions.
Status at 01.01.2020
End user licence agreement
Please read this EULA carefully, as it sets out the basis upon which we license the Software for use.
By breaking the seal on the packaging of the Software, you agree to be bound by this EULA.[ If you do not agree to be bound by this EULA, you must [promptly] return the Software (in its sealed packaging) to your supplier.[ Upon returning the Software and providing proof of purchase, you will be entitled to a refund.]]
OR
By clicking "accept agreement" when you first install the Software, you agree to be bound by the provisions of this EULA.[ If you do not agree to be bound by the provisions of this EULA, you must [click "reject agreement" during the installation process and promptly return the Software (on the media upon which the Software was provided) to your supplier].[ Upon returning the Software and providing proof of purchase, you will be entitled to a refund.]]
OR
Before you download the Software from our website, we will ask you to give your express agreement to the provisions of this EULA.
By agreeing to be bound by this EULA, you further agree that [your employees] OR [any person you authorise to use the Software] OR [[identify persons]] will comply with the provision of this EULA.
1. Definitions
1.1 In this EULA[, except to the extent expressly provided otherwise]:
"Charges" means [those amounts that the parties have agreed in writing shall be payable by the User to the Licensor in respect of this EULA];
"Documentation" means [the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the User];
"Effective Date" means [the date upon which the User gives the User's express consent to this EULA, following the issue of this EULA by the Licensor];
"EULA" means [this end user licence agreement, including any amendments to this end user licence agreement from time to time];
"Force Majeure Event" means [an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars)];
"Intellectual Property Rights" means [all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs)];
"Licensor" means [[individual name] of [address]] OR [[company name], a company incorporated in [England and Wales] (registration number [registration number]) having its registered office at [address]] OR [[partnership name], a partnership established under the laws of [England and Wales] having its principal place of business at [address]];
"Licensor Indemnity Event" has the meaning given to it in Clause 13.1;
"Maintenance Services" means the [supply to the User] OR [application to the Software] OR [supply to the User and application to the Software] of Updates and Upgrades;
"Minimum Term" means[, in respect of this EULA, the period of 12 months beginning on the Effective Date];
"Services" means [any services that the Licensor provides to the User, or has an obligation to provide to the User, under this EULA];
"Software" means [identify software];
"Software Defect" means a defect, error or bug in the Software having [an adverse effect] OR [a material adverse effect] on [the appearance, operation, functionality or performance of the Software][, but excluding any defect, error or bug caused by or arising as a result of:
(a) [any act or omission of the User or any person authorised by the User to use the Software];
(b) [any use of the Software contrary to the Documentation by the User or any person authorised by the User to use the Software];
(c) [a failure of the User to perform or observe any of its obligations in this EULA]; and/or
(d) [an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification];]
"Software Specification" means [the specification for the Software set out in the Documentation];
"Source Code" means [the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software];
"Support Services" means [support in relation to the use of the Software and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise];
"Term" means [the term of this EULA, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2];
"Update" means [a hotfix, patch or minor version update to the Software];
"Upgrade" means [a major version upgrade of the Software];
"User" means [the person to whom the Licensor grants a right to use the Software under this EULA]; and
"User Indemnity Event" has the meaning given to it in Clause 13.3.
2. Credit
2.1 This document was created using a template from SEQ Legal (https://seqlegal.com).
You must retain the above credit. Use of this document without the credit is an infringement of copyright. However, you can purchase from us an equivalent document that does not include the credit.
3. Term
3.1 This EULA shall come into force upon the Effective Date.
3.2 This EULA shall continue in force [indefinitely] OR [until [date], at the beginning of which this EULA shall terminate automatically] OR [until [event], upon which this EULA shall terminate automatically], subject to termination in accordance with Clause 15 or any other provision of this EULA.
4. Licence
4.1 The Licensor hereby grants to the User from [the date of supply of the Software to the User][ until [the end of the Term]] a [worldwide, non-exclusive] licence to:
(a) [install[ [a single instance] of] the Software];
(b) [use[ [a single instance] of] the Software[ in accordance with the Documentation]]; and
(c) [create, store and maintain up to [5] back-up copies of the Software],
subject to the limitations and prohibitions set out and referred to in this Clause 4.
4.2 The User may not sub-license and must not purport to sub-license any rights granted under Clause 4.1[ without the prior written consent of the Licensor].
OR
4.2 The User may sub-license the rights granted in Clause 4.1 to [any third party][ for the purposes of [hosting the Software and supporting the User's use of the Software in accordance with this EULA] only]. Any such sub-licence shall automatically terminate upon the termination of the licence in Clause 4.1.
4.3 Save to the extent expressly permitted by this EULA or required by applicable law on a non-excludable basis, any licence granted under this Clause 4 shall be subject to the following prohibitions:
(a) [the User must not [sell, resell, rent, lease, loan, supply, publish, distribute or redistribute] the Software];
(b) [the User must not alter, edit or adapt the Software]; and
(c) [the User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software].
[additional list items]
4.4 The User shall be responsible for the security of copies of the Software supplied to the User under this EULA[ (or created from such copies)] and shall use all reasonable endeavours (including all reasonable security measures) to ensure that access to such copies is restricted to persons authorised to use them under this EULA.
5. Source Code
5.1 Nothing in this EULA shall give to the User or any other person any right to access or use the Source Code or constitute any licence of the Source Code.
6. Maintenance Services
6.1 The Licensor shall provide the Maintenance Services to the User [during the Term].
6.2 The Licensor shall provide the Maintenance Services [with reasonable skill and care] OR [in accordance with the standards of skill and care reasonably expected from a leading service provider in the Licensor's industry] OR [[specify standard(s)]].
6.3 The Licensor warrants to the User that the application of Updates and Upgrades to the Software by the Licensor will not introduce any Software Defects into the Software.
6.4 The Licensor warrants to the User that the application of Updates and Upgrades to the Software by the User in accordance with the instructions of the Licensor will not introduce any Software Defects into the Software.
6.5 The Licensor may suspend the provision of the Maintenance Services if any amount due to be paid by the User to the Licensor under this EULA is overdue, and the Licensor has given to the User at least [30 days'] written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.
6.6 [Either party may terminate the Maintenance Services by giving to the other party] OR [The Licensor may terminate the Maintenance Services by giving to the User] OR [The User may terminate the Maintenance Services by giving to the Licensor] at least [30 days'] written notice[ expiring on or at any time after the first anniversary of the Effective Date].
6.7 If the Licensor stops or makes a good faith decision to stop providing maintenance services in relation to the Software to its customers generally, then the Licensor may terminate the Maintenance Services by giving at least [90 days'] written notice of termination to the User.
6.8 If the Maintenance Services are terminated in accordance with the provisions of this Clause 6:
(a) the User must pay to the Licensor any outstanding Charges in respect of Maintenance Services provided to the User before the termination of the Maintenance Services;
(b) the Licensor must refund to the User any Charges paid by the User to the Licensor in respect of Maintenance Services that were to be provided to the User after the termination of the Maintenance Services; and
(c) the provisions of this Clause 6, excluding this Clause 6.8, shall cease to apply, but the other provisions of this EULA will continue notwithstanding such termination.
7. Support Services
7.1 The Licensor shall provide the Support Services to the User [during the Term].
7.2 The Licensor shall provide the Support Services [with reasonable skill and care] OR [in accordance with the standards of skill and care reasonably expected from a leading service provider in the Licensor's industry] OR [[specify standard(s)]].
7.3 The Licensor may suspend the provision of the Support Services if any amount due to be paid by the User to the Licensor under this EULA is overdue, and the Licensor has given to the User at least [30 days'] written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
7.4 [Either party may terminate the Support Services by giving to the other party] OR [The Licensor may terminate the Support Services by giving to the User] OR [The User may terminate the Support Services by giving to the Licensor] at least [30 days'] written notice[ expiring on or at any time after the first anniversary of the Effective Date].
7.5 If the Support Services are terminated in accordance with the provisions of this Clause 7:
(a) the User must pay to the Licensor any outstanding Charges in respect of Support Services provided to the User before the termination of the Support Services;
(b) the Licensor must refund to the User any Charges paid by the User to the Licensor in respect of Support Services that were to be provided to the User after the termination of the Support Services; and
(c) the provisions of this Clause 7, excluding this Clause 7.5, shall cease to apply, but the other provisions of this EULA will continue notwithstanding such termination.
8. No assignment of Intellectual Property Rights
8.1 Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the User, or from the User to the Licensor.
9. Charges
9.1 The User shall pay the Charges to the Licensor in accordance with this EULA.
9.2 All amounts stated in or in relation to this EULA are, unless the context requires otherwise, stated [inclusive of any applicable value added taxes] OR [exclusive of any applicable value added taxes, which will be added to those amounts and payable by the User to the Licensor].
10. Payments
10.1 The Licensor shall issue [invoices] OR [an invoice] OR [receipts] OR [a receipt] for the Charges to the User [specify when issued].
10.2 The User must pay the Charges to the Licensor [in advance] OR [within the period of [30 days] following [the issue of an invoice in accordance with this Clause 10] OR [the receipt of an invoice issued in accordance with this Clause 10]].
10.3 The User must pay the Charges by [debit card, credit card, direct debit, bank transfer or cheque] (using such payment details as are notified by the Licensor to the User from time to time).
10.4 If the User does not pay any amount properly due to the Licensor under this EULA, the Licensor may:
(a) charge the User interest on the overdue amount at the rate of [8% per annum above the Bank of England base rate from time to time] (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the User pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
11. Warranties
11.1 The Licensor warrants to the User that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.
11.2 The Licensor warrants to the User that:
(a) [the Software as provided will conform in all [material] respects with the Software Specification];
(b) [the Software will be supplied free from Software Defects[ and will remain free from Software Defects[ for a period of at least 12 months following the supply of the Software]]];
(c) [the Software will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs]; and
(d) [the Software shall incorporate security features reflecting the requirements of good industry practice].
[additional list items]
11.3 The Licensor warrants to the User that the Software[, when used by the User in accordance with this EULA,] will not breach [any laws, statutes or regulations applicable under English law].
11.4 The Licensor warrants to the User that the Software, when used by the User in accordance with this EULA, will not infringe the Intellectual Property Rights of any person [in any jurisdiction and under any applicable law].
11.5 If [the Licensor reasonably determines, or any third party alleges, that the use of the Software by the User in accordance with this EULA infringes any person's Intellectual Property Rights], the Licensor may[ acting reasonably] at its own cost and expense:
(a) modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights[, providing that [any such modification must not introduce any Software Defects into the Software and must not result in the Software failing to conform with the Software Specification]]; or
(b) procure for the User the right to use the Software in accordance with this EULA.
11.6 The User warrants to the Licensor that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.
11.7 All of the parties' warranties and representations in respect of the subject matter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this EULA or any related contract.
12. Acknowledgements and warranty limitations
12.1 The User acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.
12.2 The User acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be entirely secure.
12.3 The User acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compatible with any other software.
12.4 The User acknowledges that the Licensor will not provide any [legal, financial, accountancy or taxation advice] under this EULA or in relation to the Software; and, except to the extent expressly provided otherwise in this EULA, the Licensor does not warrant or represent that the Software or the use of the Software by the User will not give rise to any legal liability on the part of the User or any other person.
13. Indemnities
13.1 The Licensor shall indemnify and shall keep indemnified the User against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the User and arising directly or indirectly as a result of any breach by the Licensor of [this EULA] OR [[specify provisions]] (a "Licensor Indemnity Event").
13.2 The User must:
(a) upon becoming aware of an actual or potential Licensor Indemnity Event, notify the Licensor;
(b) provide to the Licensor all such assistance as may be reasonably requested by the Licensor in relation to the Licensor Indemnity Event;
(c) allow the Licensor the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Licensor Indemnity Event; and
(d) not admit liability to any third party in connection with the Licensor Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Licensor Indemnity Event without the prior written consent of the Licensor,
[without prejudice to the Licensor's obligations under Clause 13.1] OR [and the Licensor's obligation to indemnify the User under Clause 13.1 shall not apply unless the User complies with the requirements of this Clause 13.2].
13.3 The User shall indemnify and shall keep indemnified the Licensor against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Licensor and arising directly or indirectly as a result of any breach by the User of [this EULA] OR [[specify provisions]] (a "User Indemnity Event").
13.4 The Licensor must:
(a) upon becoming aware of an actual or potential User Indemnity Event, notify the User;
(b) provide to the User all such assistance as may be reasonably requested by the User in relation to the User Indemnity Event;
(c) allow the User the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the User Indemnity Event; and
(d) not admit liability to any third party in connection with the User Indemnity Event or settle any disputes or proceedings involving a third party and relating to the User Indemnity Event without the prior written consent of the User,
[without prejudice to the User's obligations under Clause 13.3] OR [and the User's obligation to indemnify the Licensor under Clause 13.3 shall not apply unless the Licensor complies with the requirements of this Clause 13.4].
13.5 The indemnity protection set out in this Clause 13 [shall] OR [shall not] be subject to the limitations and exclusions of liability set out in this EULA[, except [exceptions]].
14. Limitations and exclusions of liability
14.1 Nothing in this EULA will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law,
and, if a party is a consumer, that party's statutory rights will not be excluded or limited by this EULA, except to the extent permitted by law.
14.2 The limitations and exclusions of liability set out in this Clause 14 and elsewhere in this EULA:
(a) are subject to Clause 14.1; and
(b) govern all liabilities arising under this EULA or relating to the subject matter of this EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this EULA.
14.3 The Licensor will not be liable to the User in respect of any losses arising out of a Force Majeure Event.
14.4 The Licensor will not be liable to the User in respect of any loss of profits or anticipated savings.
14.5 The Licensor will not be liable to the User in respect of any loss of revenue or income.
14.6 The Licensor will not be liable to the User in respect of any loss of business, contracts or opportunities.
14.7 The Licensor will not be liable to the User in respect of any loss or corruption of any data, database or software.
14.8 The Licensor will not be liable to the User in respect of any special, indirect or consequential loss or damage.
14.9 The liability of the Licensor to the User under this EULA in respect of any event or series of related events shall not exceed the greater of:
(a) [amount]; and
(b) [the total amount paid and payable by the User to the Licensor under this EULA in the [12 month] period preceding the commencement of the event or events].
14.10 The aggregate liability of the Licensor to the User under this EULA shall not exceed the greater of:
(a) [amount]; and
(b) [the total amount paid and payable by the User to the Licensor under this EULA].
15. Termination
15.1 The Licensor may terminate this EULA by giving to the User [not less than 30 days'] written notice of termination[, expiring [at the end of any [calendar month]] OR [after the end of the Minimum Term]].
15.2 The User may terminate this EULA by giving to the Licensor [not less than 30 days'] written notice of termination[, expiring [at the end of any [calendar month]] OR [after the end of the Minimum Term]].
15.3 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:
(a) the other party commits any [breach] OR [material breach] of this EULA[, and the breach is not remediable];
(b) [the other party commits a [breach] OR [material breach] of this EULA, and the breach is remediable but the other party fails to remedy the breach within the period of [30 days] following the giving of a written notice to the other party requiring the breach to be remedied]; or
(c) [the other party persistently breaches this EULA (irrespective of whether such breaches collectively constitute a material breach)].
15.4 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this EULA)]; or
(d) [if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.]
15.5 The Licensor may terminate this EULA immediately by giving written notice to the User if:
(a) any amount due to be paid by the User to the Licensor under this EULA is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) the Licensor has given to the User at least [30 days'] written notice, following the failure to pay, of its intention to terminate this EULA in accordance with this Clause 15.5.
16. Effects of termination
16.1 Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 10.2, 10.4, 13, 14, 16, 17 and 18].
16.2 Except to the extent that this EULA expressly provides otherwise, the termination of this EULA shall not affect the accrued rights of either party.
16.3 Within [30 days] following the termination of this EULA for any reason:
(a) the User must pay to the Licensor [any Charges in respect of Services provided to the User before the termination of this EULA and in respect of licences in effect before the termination of this EULA]; and
(b) the Licensor must refund to the User [any Charges paid by the User to the Licensor in respect of Services that were to be (but are not) provided to the User after the termination of this EULA and in respect of licences that were to be (but are not) in effect after the termination of this EULA],
without prejudice to the parties' other legal rights.
16.4 For the avoidance of doubt, the licences of the Software in this EULA shall terminate upon the termination of this EULA; and, accordingly, the User must immediately cease to use the Software upon the termination of this EULA.
16.5 Within [10 Business Days] following the termination of this EULA, the User must:
(a) return to the Licensor or dispose of as the Licensor may instruct all media in its possession or control containing the Software; and
(b) irrevocably delete from all computer systems in its possession or control all copies of the Software.
17. General
17.1 No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.
17.2 If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
17.3 This EULA may not be varied except by a written document signed by or on behalf of each of the parties.
17.4 The User hereby agrees that the Licensor may assign the Licensor's contractual rights and obligations under this EULA to [any successor to all or a substantial part of the business of the Licensor from time to time] OR [any third party]. Save to the extent expressly permitted by applicable law, the User must not without the prior written consent of the Licensor assign, transfer or otherwise deal with any of the User's contractual rights or obligations under this EULA.
17.5 This EULA is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.
17.6 Subject to Clause 14.1, this EULA shall constitute the entire agreement between the parties in relation to the subject matter of this EULA, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
17.7 This EULA shall be governed by and construed in accordance with [English law].
17.8 The courts of [England] shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.
18. Interpretation
18.1 In this EULA, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
18.2 The Clause headings do not affect the interpretation of this EULA.
18.3 References in this EULA to "calendar months" are to [the 12 named periods (January, February and so on) into which a year is divided].
18.4 In this EULA, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
Free end user licence agreement: drafting notes
This document is a free-to-use software EULA or end user licence. Click-wrap and web-wrap licences can be created using this document, as well as more traditional shrink-wrap licences. The document governs the legal relationship between a licensor and its customers.
Note: although this EULA can be used for B2C licences as well as B2B licences, it does not include a distance selling clause. See our software download T&Cs for a document incorporating such a clause.
There are a range of optional provisions in the EULA. These cover such matters as: a contractual right to a return/refund; the provision of support in relation to the software; and the supply and application of updates to the software.
Subsection: Shrink-wrap software agreement
This wording may be used for "shrink-wrap" software agreements - that is, agreements that are visible through product packaging and are formally accepted when a person unseals the software packaging. There may be a right to return software, because a customer may not have a chance to review the agreement terms before purchasing the software.
Should the User return the software if the terms of this document are not accepted?
Within what period must the software be returned?
Will there be a right to return the software for a refund?
Subsection: Click-wrap software agreement
This wording may be used for "click-wrap" software agreements - that is, agreements that are formally accepted as part of the software installation process. There is an optional right to return the software, which should be included where customers will or may not have a chance to review the agreement terms before purchasing the software.
Will customers have a right to return the software if they do not accept this document?
How should the software be returned?
Will the customer be entitled to a refund upon the return of the software under this provision?
Subsection: Web-wrap software agreement
This wording may be used for "web-wrap" agreements - that is, agreements that are formally accepted on a website before the software is downloaded. Accordingly, there is no right to return the software.
Subsection: Agreement on behalf of others relating to software licence
.
What third parties may use the software on behalf of, or under the authorisation of, the licensee?
Identify relevant persons.
Clause 1: Definitions
Clause 1.1
Definition of Charges
Define "Charges".
Definition of Documentation
How should the software documentation be identified?
Definition of Effective Date
Define "Effective Date".
Definition of Force Majeure Event
Specify particular examples of force majeure events.
Definition of Licensor
Is the first party an individual, a company or a partnership?
What is the full name of the individual (including middle names)?
What is the postal address of the first party?
What is the full company name of the first party?
In which jurisdiction is the first party incorporated?
What is the registration number of the first party?
What is the registered office address of the first party?
What is the name of the first party partnership?
In which jurisdiction is the first party partnership established?
Where is the principal place of business of the first party?
Definition of Maintenance Services
Will the Licensor supply updates/upgrades to the User, apply them to the software, or both?
Definition of Minimum Term
What minimum term will apply?
Definition of Services
Define "Services".
Definition of Software
Identify the software here.
Definition of Software Defect
Will non-material defects count as software defects for the purposes of this definition?
In what ways may a relevant defect affect the software?
Should a set of general exclusions from this definition be included?
What exclusions should apply here?
Definition of Software Specification
Define "Software Specification".
Definition of Source Code
Consider whether to adapt the definition of source code.
Definition of Support Services
In relation to what exactly will support be provided?
Definition of Term
Define "Term", the period during which the contract will subsist.
Definition of Update
Define "Update".
Definition of Upgrade
Define "Upgrade".
Definition of User
Define "User".
Clause 2: Credit
Clause: Free documents licensing warning
. Although you need to retain the credit, you should remove the inline copyright warning from this document before use.
Clause 3: Term
Clause 3.2
Is the term of the contract indefinite, or will it come to an end upon some agreed date, or upon the occurrence of a defined event?
Upon what date will the contract terminate?
Upon the occurrence of what event will the contract terminate?
Clause 4: Licence
Clause 4.1
When does the licence to use the software commence?
Will the licence expire at some point?
What sort of licence is granted?
When will the licence end?
What specific rights are granted to the User?
Will the licence specify how many instances of the software may be installed?
How many instances of the software may be installed?
Will the licence specify how many instances of the software may be used?
Can the use of the software be circumscribed by reference to its documentation?
How many instances of the software may be used?
How many back-up copies of the software may be created?
Clause 4.2
Will the User have the option to ask the Licensor for consent to sub-licensing?
Clause 4.2
To whom may the software be sub-licensed?
Is the right to sub-license restricted by reference to purpose?
Specify the purposes by reference to which sub-licensing is permitted.
Clause 4.3
There are English/EU law restrictions upon the types of prohibition that may be applied to a software licence. In UsedSoft GmbH v Oracle International Corp. (C-128/11), the court ruled that a software vendor could not prevent a perpetual licensee from selling a "used" licence for software downloaded from the internet. The law in this area is complex and uncertain, and you should consider taking legal advice if resale may be an issue for you.
What general prohibitions apply to the use of the software?
Specify the transactional prohibitions applying to the use of the software.
Clause 4.4
.
Include this text only if the User has the right to take copies.
Clause 5: Source Code
.
Clause 6: Maintenance Services
.
Clause 6.1
During what period will the maintenance services be provided?
Clause 6.2
What standard(s) must the maintenance services meet?
Specify the standard or standards the services must meet.
Clause 6.3
.
Clause 6.4
.
Clause 6.5
. Will the Licensor have a right to suspend the maintenance services in the event that the User fails to pay any amount due under the contract?
How much notice of an intention to suspend the maintenance services must the Licensor give to the User?
Clause 6.6
.
Which of the parties has the right to terminate the maintenance services (independently from any termination of the entire contract)?
How much notice of termination of the maintenance services must be given?
Will there be a minimum period for the maintenance services?
Clause 6.7
.
How much notice of discontinuance of the software maintenance services must the Licensor give to the User?
Clause 6.8
.
Clause 7: Support Services
.
Clause 7.1
During what period will the support services be provided?
Clause 7.2
.
What standard(s) must the support services meet?
Specify the standard or standards the support services must meet.
Clause 7.3
.
How much notice must the Licensor give to the User of a suspension of services following non-payment?
Clause 7.4
.
Which of the parties has the right to terminate the support services (independently from any termination of the entire contract)?
How much notice of termination of the support services must be given?
Will there be a minimum period for the support services?
Clause 7.5
.
Clause 8: No assignment of Intellectual Property Rights
.
Clause 9: Charges
.
Clause 9.2
.
Are payment amounts stated inclusive or exclusive of VAT?
Clause 10: Payments
.
Clause 10.1
Will the Licensor issue invoices in advance of payment, or receipts in arrears?
When will invoices / receipts be issued?
Clause 10.2
Will charges be paid in advance or following the issue of an invoice?
What is the period for payment of invoices?
When does the period for payment of an invoice begin to run?
Clause 10.3
.
Using what methods should payments be made?
Clause 10.4
.
What contractual interest rate should apply to late payments?
Clause 11: Warranties
.
Clause 11.1
.
Clause 11.2
.
What warranties in relation to the quality of the software will the Licensor give to the User?
Is this warranty subject to a materiality threshold?
Will this warranty relate to a specific period?
For what period will this warranty apply?
Clause 11.3
.
What is the scope of this warranty?
Clause 11.4
.
What is the jurisdictional coverage of the warranty?
Clause 11.5
.
In what circumstances may the Licensor exercise its rights under this provision?
Should there be an express requirement for the Licensor to act reasonably in relation to the exercise of its rights under this provision?
Are there any express limitations on this right to modify?
Specify the limitations on the right to modify.
Clause 11.6
.
Clause 12: Acknowledgements and warranty limitations
.
Clause 12.1
.
Clause 12.2
.
Clause 12.3
.
Clause 12.4
.
What types of advice should be specified here?
Clause 13: Indemnities
Should the document include indemnities?
Clause 13.1
.
If this provision is included, losses suffered by the second party as a result of a breach of the contract by the first party will be assessed on an indemnity basis, rather than a standard basis.
Will the indemnity cover any breach of contract, or only the breach of specified provision(s)?
Specify those provisions the breach of which will be covered by the indemnity.
Clause 13.2
.
Will the indemnity only apply where the User complies with the requirements of this provision?
Clause 13.3
.
If this provision is included, losses suffered by the first party as a result of a breach of the contract by the second party will be assessed on an indemnity basis, rather than a standard basis.
Will the indemnity cover any breach of contract, or only the breach of specified provision(s)?
Specify those provisions the breach of which will be covered by the indemnity.
Clause 13.4
.
Will the indemnity only apply where the Licensor complies with the requirements of this provision?
Clause 13.5
.
Will the indemnity provisions be subject to the limitations and exclusions of liability in the document?
Will there be any exceptions to the general rule here?
Specify the exceptions to the general rule.
Clause 14: Limitations and exclusions of liability
Contractual limitations and exclusions of liability are regulated and controlled by law, and the courts may rule that particular limitations and exclusions of liability in contracts are unenforceable.
Exclusions and limitations of liability in UK B2B contracts are primarily regulated by the Unfair Contract Terms Act 1977 ("UCTA"), while those in UK B2C contracts are primarily regulated by the Consumer Rights Act 2015 ("CRA"). Contracts regulated by UCTA cannot exclude or restrict a party's liability for death or personal injury resulting from negligence (Section 2(1), UCTA).
Except insofar as the relevant term satisfies the requirements of reasonableness, such contracts cannot exclude or restrict liability: (i) for negligence (which includes a breach of an express or implied contractual obligation to take reasonable care or exercise reasonable skill) (Section 2(2), UCTA); or (ii) for misrepresentation (Section 3, Misrepresentation Act 1967). In addition, if a contract is regulated by UCTA, and one of the parties is dealing on the other's written standard terms of business, then except insofar as the relevant contractual term satisfies the requirements of reasonableness the other party cannot: (i) exclude or restrict his liability in respect of a breach of contract; or (ii) claim to be entitled to render a contractual performance substantially different from that which was reasonably expected of him; or (iii) claim to be entitled, in respect of the whole or any part of his contractual obligation, to render no contractual performance at all (see Section 3, UCTA).
UCTA includes various other restrictions, particularly in the case of contracts for the sale of goods and contracts under which possession or ownership of goods passes.
Consumer contracts regulated by the CRA cannot exclude or restrict liability for death or personal injury resulting from negligence (Section 65(1), CRA). Further, any "unfair term" in such a contract will not be binding on the consumer (Section 62(1), CRA). A contractual term is unfair "if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract to the detriment of the consumer" (Section 62(3), CRA). Section 57 of the CRA provides (inter alia) that a term in a services contract will not bind consumers if it excludes any liability of the trader to provide the services with reasonable care and skill. A "grey list" of provisions that may be regarded as unfair is set out in Part 1 of Schedule 2 to the CRA. Some of these have implications for the drafting of limitations and exclusions of liability. For example, they include: "[a] term which has the object or effect of excluding or limiting the trader's liability in the event of the death of or personal injury to the consumer resulting from an act or omission of the trader." "Where a term of a consumer contract, or a consumer notice, purports to exclude or restrict a trader's liability for negligence, a person is not to be taken to have voluntarily accepted any risk merely because the person agreed to or knew about the term or notice" (Section 65(2), CRA).
The courts are particularly likely to intervene where a party is seeking to rely on a limitation or exclusion of liability in its standard terms and conditions, but will also sometimes intervene where a term has been individually negotiated. The courts may be more likely to rule that provisions excluding liability, as opposed to those merely limiting liability, are unenforceable. If there is a risk that any particular limitation or exclusion of liability will be found to be unenforceable by the courts, that provision should usually be drafted as an independent term, and be numbered separately from the other provisions.
These guidance notes provide a very incomplete and basic overview of a complex subject. Accordingly, you should take legal advice if you may wish to rely upon a limitation or exclusion of liability.
Clause 14.1
Do not delete this provision (except upon legal advice). Without this provision, the specific limitations and exclusions of liability in the document are more likely to be unenforceable.
Clause 14.4
.
Clause 14.5
.
Clause 14.6
.
Clause 14.7
.
Clause 14.8
.
Clause 14.9
. Do you want to include a per event liability cap in this document?
Liability caps may be unenforceable in practice.
Do you want to include a per event liability cap in this document?
What monetary amount should be used in the liability cap?
What floating amount should be used in the liability cap?
The charge payable during what period, prior to the event or events, should be used for calculating this liability cap?
Clause 14.10
. Do you want to include an aggregate liability cap in this document?
Liability caps may be unenforceable in practice.
Do you want to include an aggregate liability cap in this document?
What monetary amount should be used in the liability cap?
What floating amount should be used in the liability cap?
Clause 15: Termination
Clause 15.1
.
What notice period will apply?
Must the notice of termination expire after some particular period, or on some particular day?
How will the limitation on the expiry of the termination notice period operate?
Specify the relevant period.
Clause 15.2
What notice period will apply?
Must the notice of termination expire after some particular period, or on some particular day?
How will the limitation on the expiry of the termination notice period operate?
Specify the relevant period.
Clause 15.3
In what circumstances may a party terminate for breach?
Will all breaches, or only material breaches, give rise to a right of termination?
What is the remediation period here?
Should each party have a right to terminate if the other party is persistently in breach of contract, even where there has been no material breach?
Clause 15.4
Will the winding up of a party as part of a solvent company reorganisation give rise to a right of termination for the other party?
Will or might a party to the document be an individual, rather than a corporate entity?
Clause 15.5
.
What notice period applies in the case of termination for non-payment?
Clause 16: Effects of termination
Clause 16.3
.
This provision will not be suitable in all circumstances. The appropriate treatment of charges upon termination will vary from contract to contract.
Within what period following termination must charges in respect of services be settled?
Specify those charges that the User must pay to the Licensor upon termination.
Specify those charges that the Licensor must refund to the User upon termination.
Clause 16.4
.
Clause 16.5
.
Within what period following termination must licensed software copies be returned, destroyed or deleted?
Clause 17: General
Clause 17.1
.
Clause 17.2
.
Clause 17.3
.
This is intended to prevent, for example, one party wrongfully claiming that a term of the contract was changed in a telephone call.
Clause 17.4
.
To whom may the Licensor assign its rights and obligations under the contract?
Clause 17.5
.
This provision is designed to exclude any rights a third party may have under the Contracts (Rights of Third Parties) Act 1999.
Clause 17.6
.
Clause 17.7
This template has been drafted to work in the English law context. If you plan to change the governing law, you should have the document reviewed by someone with expertise in the law of the relevant jurisdiction.
Which law will govern the document?
Clause 17.8
.
As a practical matter, it makes sense for the courts with expertise in the relevant law to have the right to adjudicate disputes. Where one of the parties is outside England (or at least the UK), you may want to grant the courts of their home jurisdiction the right to adjudicate disputes, as this could ease enforcement in some circumstances.
The courts of which jurisdiction will have the exclusive right to adjudicate disputes relating to the document (subject to applicable law)?
Clause 18: Interpretation
Should provisions concerning the interpretation of the document be included?
Clause 18.1
.
Clause 18.2
.
Clause 18.3
.
Clause 18.4
.
This provision is designed to exclude the application of a rule of interpretation known as the ejusdem generis rule. That rule may affect the interpretation of contractual clauses that list particular examples or instances of some more general idea, by limiting the scope of the general idea by reference to those particular examples or instances.
1.1 All of our supplies and services are provided exclusively on the basis of the version of the following Standard Terms and Conditions which is current when the order is placed. If not expressly agreed in writing, differing terms of business do not apply.
1.2 Both consumers and businesses are a 'customer' within the meaning of these terms and conditions. Consumers within the meaning of the terms and conditions are individuals who conclude contracts for a purpose which can be attributed neither to their commercial nor their professional activities. Business within the meaning of the terms and conditions are individuals or corporate bodies or partnerships vested with legal capacity, which, when the contract is effected, are dealing with us in the exercise of their commercial or independent professional activities.
1.3 As the liability of Nemesis games is limited or excluded according to the following conditions, this also applies to the legal representatives and agents of Nemesis games.
§ 2 Conclusion of contract, formation of the contract
2.1 By your order you make a binding offer to us to enter into the contract with you. We may accept this offer by sending a confirmation of contract to you by email within 24 hours of our receiving your order. The contract comes into being when this confirmation of order is sent.
2.2 You may obtain comprehensive information about the desired product in the respective product description. You can purchase our products by clicking on the [Subscribe Now] button within the respective short product description on the overview page of all products. By doing this, the respective product order form opens. There you will find a detailed description of the product.
If you are not yet an existing customer of ours, please first enter the requested account data (Username and Password), followed by your address data into the form.
If you are an existing customer, and you are logged in via the separate customer log-in (the field Username shows your login name), please check the address data shown.
If you are an existing customer, but not yet logged-in, please first enter your account data (Username and Password) in the login fields in the order form and press the button [Login (for existing clients)]. By doing this, you will have been logged in (the field Username will show your login name). Please check the address data shown.
2.3 During the order process you accept our Standard Terms and Conditions and the information about your rights of cancellation. These consist of the acknowledgement of the "Special information for digital deliveries" and of the "Special information when buying services".
2.3.1 Special information for digital deliveries
“I agree explicitly that you begin with the execution of the contract before the end of the withdrawal period. I am aware that by this consent I lose my right of withdrawal with the start of the execution of the contract.”
2.3.2 Special information when buying services
“I agree and expressly require that you begin with the execution of the contracted services before the end of the withdrawal period. I am aware that with the complete performance of the contract, I lose my right of withdrawal.”
2.4 Additionally you confirm in the order form, that the postal address you entered is correct.
2.5 In the order form, you have the option to register as a business. For companies within the EU, you will be able to enter your international value added tax id to get a reverse charged invoice.
2.6 You can rectify entry errors before sending the form or by breaking off the order process and starting from the beginning again.
2.7 In order to conclude the purchase you must click the [Subscribe with obligation to pay!] button. By doing this, you will transmit the order to us. We then will send you a confirmation of your order by email, by means of which the contract is brought into being.
If you have chosen the "Paypal" payment option, you will be re-directed to Paypal's web site. If you interrupt the process here, you will need to start over by filling in the order form again.
As a new customer you will not be able to login to our web site, until you have made a successful payment. Existing customers with an expired subscription are able to login to our web site, but without having access to the areas available only to active club members.
2.8 In the case of orders in our on-line shop, the contract comes into being with:
Nemesis games
Schlangenstraße 11
D-31162 Bad Salzdetfurth
Phone: +49 (0)15902628271
email: nemesis-gaming@mail.de
§ 3 Storing of the contract wording
We store your order and the order data entered. We will send you a confirmation of order by email containing all the order information. You will have the opportunity to print the Standard Terms and Conditions out before sending the order to us. Likewise, you will have the opportunity to print out the order after sending the order to us. Finally, you may at any time access the orders you have made via your customer account.
§ 4 Cancellation terms and conditions for consumers on delivery of digital content (downloads)
The following cancellation terms are only for consumers on delivery of digital content which is not supplied on a tangible medium:
Cancellation terms and conditions
Right of cancellation
You may revoke your contract statement within a period of fourteen days without giving a reason.
The withdrawal period is fourteen days from the date of conclusion of the contract.
To exercise your right of cancellation, you must provide us (Nemesis games, Schlangenstraße 11, D-31162 Bad Salzdetfurth, phone: +49 (0)15902628271, email: nemesis-gaming@mail.de) with a clear explanation (e.g., by means of writing to us by post, fax or email) of your decision to withdraw from this contract. You can use the enclosed specimen form for this, but it is not mandatory.
In order to comply with the time limit for cancellation, it is sufficient to have conveyed your intention to exercise the right of cancellation to us before the withdrawal deadline by the means listed above.
Consequences of cancellation
If you withdraw from this contract, we will refund you any and all payments that we have received from you, including delivery costs (with the exception of any additional costs arising from the fact that you have chosen a type of delivery other than the very low standard delivery offered by us) immediately, at the latest within fourteen days from the date on which we have received the message of your cancellation of this contract. For this refund, we will use the same payment method that you used for the initial transaction, unless you have explicitly agreed otherwise; in no case you will be charged fees for this refund.
The right of cancellation expires in a contract for the supply of digital content on a non-tangible disk, if the entrepreneur has started the execution of the contract, after the consumer
. has expressly agreed that the entrepreneur begins with the execution of the contract before the end of the withdrawal period, and
has confirmed his knowledge that he loses his right of withdrawal by his/her agreement with the start of execution of the contract.
§ 5 Cancellation terms and conditions for consumers on purchase of services (membership, support, online content)
The following cancellation terms are only for consumers on purchase of services:
Cancellation terms and conditions
Right of cancellation
You may revoke your contract statement within a period of fourteen days without giving a reason.
The withdrawal period is fourteen days from the date of conclusion of the contract.
To exercise your right of cancellation, you must provide us Nemesis games, Schlangenstraße 11, D-31162 Bad Salzdetfurth, phone: +49 (0)15902628271, email: nemesis-gaming@mail.de) with a clear explanation (e.g., by means of writing to us by post, fax or email) of your decision to withdraw from this contract. You can use the enclosed specimen form for this, but it is not mandatory.
In order to comply with the time limit for cancellation, it is sufficient to have conveyed your intention to exercise the right of cancellation to us before the withdrawal deadline by the means listed above.
Consequences of cancellation
If you withdraw from this contract, we will refund you any and all payments that we have received from you, including delivery costs (with the exception of any additional costs arising from the fact that you have chosen a type of delivery other than the very low standard delivery offered by us) immediately, at the latest within fourteen days from the date on which we have received the message of your cancellation of this contract. For this refund, we will use the same payment method that you used for the initial transaction, unless you have explicitly agreed otherwise; in no case you will be charged fees for this refund.
If you request the services to begin during the withdrawal period, you will be liable to pay us a reasonable amount which corresponds to a share of the service, comparable to the total extent of the service as provided in the contract, which has already been provided up to the date on which you notify us of the execution of the right of withdrawal.
The right of cancellation expires in a contract for the provision of services, if the entrepreneur has performed the service fully and has started the execution of the service, only after the consumer has given his explicit consent, and has confirmed at the same time his knowledge that he loses his right of cancellation with the complete performance of the contract by the entrepreneur.
§ 6 Specimen form for cancellation
(If you want to cancel the contract, please fill out this form and send it back.)
To
Nemesis games
Schlangenstraße 11
D-31162 Bad Salzdetfurth
Email: nemesis-gaming@mail.de
Hereby I/we (*) cancel the from me/us (*) concluded contract for the purchase of the following products (*)/performance of the following services (*)
Ordered at (*)/received at (*)
Name of the consumer(s)
Address of the consumer(s)
Signature of the consumer(s) (only with message on paper)
Date
(*) Delete as applicable.
§ 7 Prices, discounts and shipping costs
7.1 All prices consist of the net amount of the product (the membership), minus a possible discount, and if applicable, of the Value Added Tax of the home country of the purchaser. The costs are determined by the extent and duration of the chosen membership.
The for the purchaser valid Value Added Tax will be shown in the order form together with the resulting total amount charged after entering all data.
7.2.1 We offer discounts for our SobiPro club memberships on various occasions. These discounts are activated via a coupon code, which must be entered in the corresponding field (coupon code) BEFORE the purchase of the membership.
7.2.2 Furthermore, we can offer discounts for renewing SobiPro Club memberships (Bronze, Silver, Gold). The renewal must be done before expiry of the current membership. The amount of the discount granted depends on the remaining term of the current membership. The reduced price is displayed together with the regular price. The discount is automatically deducted. The new membership seamlessly connects to the ongoing membership. A discount for renewing is only granted if the same or a higher plan is chosen. No discount for renewing will be granted if a lower plan is chosen, or after expiry of the membership.
7.2.3 We do not grant discounts for product memberships.
7.2.4 Discounts are not combinable. If a renewing discount is applicable and a valid coupon code is entered, the higher of the two discounts is granted but not both.
7.2.5 No discount can be granted after conclusion of the contract. The final price (Total charge) displayed at the time of the purchase (pressing the button "Subscribe with obligation to pay!") is final. Problems with activating a discount have to be indicated before purchase.
7.2.6 All discounts granted are a voluntary service on our part. We can change the amount of discounts at any time or cease them completely. There is no entitlement to a discount or to a certain amount of a discount.
7.3 Since we supply digital downloads and services exclusively, there are, in principle, no shipping costs. In the case of supply by downloading via a network, the seller bears the costs of making the software available for download on the network, and the purchaser bears the costs of the download and the accruing costs to access the Internet to get support and the online documentation.
§ 8 Payment conditions
8.1 Payment is to be made in advance, either by bank transfer or via PayPal. We reserve the right to refuse individual methods of payment. When you choose the bank transfer payment method, we will provide our bank account details to you in the confirmation of order. Please always quote the order number as a reference, because otherwise we cannot allocate your transfer.
The invoice amount is to be transferred to our account within 10 days. The club access is enabled only after the money has reached our bank or PayPal account.
8.2 If you have a valid Value Added Tax number in another EU country, then, in accordance with § 4 No.1 b of the UStG [Value Added Tax Act] or Reverse Charge Procedure, we can send you an invoice excluding Value Added Tax once you have advised the number to us in the order form.
The validation of the Value Added Tax number is done automatically after leaving the input field for the number [VAT Number (for EU customers)]. Please check if you see "VAT number correct" appearing. We can issue an invoice without Value Added Tax Only in this case.
If the value of the order is less than €100.00 net, we may charge a processing fee of €5.00 for this.
8.3 Purchases from non-EU countries are generally regarded as VAT-exempt.
8.4 Once payment becomes overdue, interest will be charged on the purchase price at a rate of 5% above the base rate during the overdue period. We reserve the right to substantiate, and claim for, any greater loss resulting from the delay in payment.
§ 9 Warranty and liability
The warranty is provided in accordance with the statutory provisions.
We bear no liability whatsoever for free software which we provide for download, nor for software from third party providers, and we likewise do not provide any warranty in respect of such software.
§ 10 Customer service
Please contact us if you have any queries or complaints, or if you wish to make a claim. To do this, use our contact form at nemesis-gaming@mail.de.
§ 11 Duties of the purchaser
11.1 You have a duty to retain your shop access data and a duty of care in relation to it. Without this data you will have no access to updates, support and documentation resp. to the club area. The password must not be given to third parties.
11.2 Please make sure that the email address you have provided is correct, since otherwise the confirmation of order cannot be sent to you.
11.3 If you have lost your password, please use the reminder facility on the log-in form. For security and data protection reasons it is only possible to send a lost user name to the email address stated in the user data. If you don't know either your user name or your email address, you cannot be given access to a user account.
11.4 Before ordering the software, you must read the system requirements stated in the product description to check whether the software can be operated on your systems.
11.5 in the product order form you affirm that your supplied postal address, particularly your country is correct. This information will be used to calculate the value-added tax you are obliged to pay. If you make a false statement in order to avoid the resulting tax, this is tax evasion. In this case, we will suspend your account and ask you to pay the outstanding tax and a processing fee of 10 euros. If you do not pay this within a week, we are entitled to permanently disable your account without refund of the amount already paid. Alternatively, we may treat your payment as gross amount and adapt the term of your membership accordingly. The processing fee will be charged in any case.
§ 12 Blocking of the user account
If you sign on with incorrect information, or if there is a suspicion of fraud, we are entitled to block your user account and access to the club area. The same applies if you breach the product's licence conditions by disseminating the product or the documentation in an unauthorised manner.
§ 13 Cancellation of a membership
13.1 There is no obligation on our part to cancel a membership after you have agreed to the information in § 2.3.1 and § 2.3.2.
13.2 If we agree to a cancellation of your membership for any reason, a cancellation fee of 8 Euro net will be charged.
§ 14 Upgrade of a membership
14.1 If you would like to switch to a higher membership plan during the term of your membership, please contact us via our contact form (nemesis-gaming@mail.de). You will receive a coupon code for the remaining term of your current membership, which you can use when purchasing a new membership. The coupon code is valid 24 hours, non-transferable and only applicable once.
14.2 Your current membership will be terminated upon activation of your new membership.
14.3 A processing fee of 3 Euros net will be charged.
14.4 An upgrade of a product membership to a SobiPro Club membership is not possible.
II. Memberships (Product and SobiPro Club Memberships)
§ 1 Subject matter of the contract
(1a) SobiPro Club Membership
The buyer purchases from us a membership described in more detail in the respective product description. It entitles the buyer to a non-exclusive right of use for the software listed in the product description and enables access to support and application documentation.
(1b) Product Membership
The buyer purchases from us the non-exclusive right of use of the software listed in the product description. The software is always provided in connection with a product membership, which run for a fixed period and enables the buyer to receive updates and support for it.
The application documentation for the software contained in a membership is in English language and will be provided online as part of the membership. A membership will be bought for a fixed period. The duration complies with the chosen plan. A membership does not prolong automatically and cannot be cancelled.
It is not possible to extend a membership. To get further access to the benefits of a membership, the product (membership) must be repurchased.
The SobiPro Club Membership or Product Membership together with the therein contained benefits (software, documentation, support), are referred to below as the "subject matter of the contract", and are subject to the conditions of use agreed in this contract.
(2) The source code of the software is a component of the subject matter of the contract. Alterations to the source code are permitted, but they entail the loss of the right to support services.
(3) The nature of the software supplied by us is definitively determined by the description of services which is applicable when the software is downloaded and made available to the purchaser before the contract is concluded, and which is also described again in the application documentation. We are not liable for any additional characteristics of the software. In particular, the purchaser may not adduce any such obligation on our part from other descriptions of the software in public statements or in advertising unless we have explicitly given written confirmation of the additional characteristic(s).
§ 2 Scope of use
(1) We grant the purchaser a non-exclusive right of use in respect of the software with no time restriction, for the installation on any number of domains.
(2) The purchaser is authorised to copy the software on to a data carrier as a back-up. Otherwise, our right to the on-line copy expires in the same way as if the purchaser had received the software on a data carrier.
(3) If we cede the purchaser additions to the subject matter of the contract, by way of amendments (e.g. patches), or a new version of it (e.g. updates, upgrades), which replace the previously ceded subject matter of the contract ("original software"), these are subject to the provisions of this agreement.
(4) The application documentation will be provided online. Duplication or reworking of the application documentation is not permitted.
(5) We have the right to designate our name as the creator by means of a notice on the purchaser's domain.
(6) If the purchaser alters the source code or the database structure of the software and/or the main components required for the software to operate (SobiPro), we no longer guarantee the correct operation of the software.
(7) If the software, its applications and updates, is published under a GPL license, those license provisions govern its use.
In addition, the following additional terms are in effect: the trademark rights to the software, their applications and updates in the relationship of the parties belong exclusively to the Nemesis Games. This is especially true for the trademarks "Nemesis Games", "Nemesis Gaming" and "Nemesis-Games.de" and "Nemesis-Gaming.de". Also, in particular the Nemesis Games, Nemesis Gaming logos are protected under trademark law.
(8) If in the scope of services, a direct access to software can be carried out within the main software (repository access), a connection from the client’s server to the servers of Nemesis Games is required. A guarantee of the continued availability of the servers of Nemesis Games is not given. A minimum availability of the servers of Nemesis Games is also not guaranteed. With limited availability of the servers, Nemesis Gamesliability is limited to the damage caused by intent or gross negligence.
§ 3 Installation
(1) For installing the software we refer you to the installation instructions described in the application documentation, and in particular to the hardware and software environment that must be in place for the purchaser.
(2) In the case of software provided without charge by us, we are not obliged to draw up and provide application documentation. However, we provide optional information in this regard on our website. Under a club membership, the online documentation, for the free of charge main component (SobiPro), can be accessed.
§ 4 Protection of software and application documentation
(1) The purchaser will only give third parties access to the subject matter of the agreement if he has the prior written agreement of the seller. The purchaser's employees, and also other persons who are on the purchaser's premises in order to use the subject matter of the contract in accordance with the terms of the contract, are not deemed to be third parties. § 6 remains unaffected.
(2) The purchaser is not permitted to alter or remove copyright notices, markings and/or reference numbers or signs on the software.
(3) If the purchaser hands data carriers, memory sticks or other hardware on which subject matter of the contract is stored (whether in complete or partial form, unaltered or reworked), and surrenders immediate possession of these, he must ensure that the additional conditions according to §7 of GNU/GPL V3 of the stored subjects matter of the contract are fulfilled. This also applies to the distribution of the software via download.
(4) The online available application documentation may be copied for private purposes. A disclosure to third parties or publication of documentation on the internet or print media is not permitted and prohibited by law.
The copyrights to the documentation and the images contained therein are owned by Nemesis Games.A dissemination or publication without explicit written permission of Nemesis Games is prohibited. For copyright infringement, we reserve the right to take legal action.
§ 5 Support
(1) The buyer of a membership receives access to our ticket system. Here he receives support to those software contained in the respective membership and unless specified in the product description, to the free main component (SobiPro).
(2) The duration of the support depends on the particular specifications of the product and corresponds to the duration of the membership.
(3) The language used for support is English. Support in other languages may or may not be made.
(4) The support service ceases if the purchaser himself alters, or has altered by others, the purchased software or the main component required to operate the purchased software, and/or makes alterations to the database structure himself, or has such alterations made by others. This does not apply in respect of alterations to the template- or CSS files.
(5) If support can be provided only by directly accessing the purchaser's or purchaser’s customer’s server (website), such access must be provided, otherwise we cannot provide any support. If the purchaser installs the software on a server and we are not able to access this server, then we cannot provide any support.
(6) Before direct access to the server (website) of the purchaser or purchaser’s customer by support staff of Nemesis Games, the purchaser has to take appropriate and adequate security measures to protect its own files and data or the files and data of his customer from loss, destruction or damage. The purchaser carries disadvantages and additional costs arising from a breach of these obligations.
§ 6 Transmission
(1) For transmission of software which is published under GPL license, those license conditions apply in respect of transmission together with the additional conditions according to §7 of GNU/GPL V3. These additional conditions are accessible on our website and as a text file with the GPL license attached to any software package.
(2) A membership cannot be transferred to other persons or user accounts.
§ 7 Purchaser's cooperation and information duties
(1) The purchaser has informed himself of the essential operating features of the software and bears the risk in respect of whether these conform to his wishes and requirements; if he is unsure about any points, he must seek advice from our staff or from expert third parties before the contract is concluded.
(2) The purchaser has sole responsibility for setting up a fully operational hard- and software environment for the subject matter of the contract, and one which also has sufficient capacity taking into account the additional loading imposed by the subject matter of the contract.
(3) Before using the software, the purchaser will test it thoroughly to ensure it has no defects and that it can be used in the existing hard-and software configuration.
(4) The purchaser will observe the instructions provided by us for the installation and operation of the software; he will at regular intervals seek information about current instructions on our websites which are available via the internet, and he will take account of these instructions when operating the software.
(5) The purchaser will take reasonable precautions for the event that the software does not work properly, (at all or in part), (e.g. by backing up data on a daily basis, by diagnosing problems and faults, and by regularly monitoring the data processing results).
(6) The purchaser will bear any prejudice and additional costs resulting from a breach of these duties.
§ 8 Period of service
(1) The software is supplied in the version which is current at the time of supply.
(2) We effect the supply by making the software available for download on a network, and by informing the purchaser of this (order status change). Where applicable, he receives a code from us with which he can download the software in the download area of our website. In case of a SobiPro club membership, he will get access to the download area of the club. In addition, the purchaser can access the respective application documentation on-line via the membership.
(3) The transfer of risk is governed by the point in time when the software is made available for download on the network and when the customer is informed of this.
§ 9 Requirement to make a complaint in respect of a defect immediately on receipt of goods
In respect of all the products and services supplied by the seller in performing this contract, the purchaser assumes a duty to make a complaint in respect of any defect immediately on receipt of the goods in accordance with § 377 HGB [German commercial code).
§ 10 Ending of the right to use the subject matter of the contract
Once the membership has expired, the purchaser loses the right of access to the documentation, to support services, and to updates of the software. However, the rights to use the software itself remain unaffected by this.
§ 11 Free software
In the download area of our main page https://www.Nemesis-Games.de/, we offer software for free download. The software originates from us or from third party suppliers, and it is not subject to a commercial license. We do not accept any liability in respect of this free software, nor do we provide any warranty in respect of it. The use of the free software is explicitly at your own risk.
III. Miscellaneous
1. German law applies to the exclusion of UN purchasing law.
2. In the case of customers who conclude the contract for a purpose which cannot be attributed to their professional or commercial activities (consumers), this choice of law applies only in so far as it does not detract from the mandatory provisions of the law of the country in which he has his usual place of residence.
3. Frankfurt is the place of jurisdiction for all disputes arising under the contractual relationship if the person placing the order is a tradesman, a corporate body under public law, or a separate estate under public law.
4. All alterations to these Standard Terms and Conditions must be made in writing. This applies to altering the written form clause itself.
5. The contract languages are German or English.
6. If one or several provisions of these STC's are invalid, the contract otherwise remains valid. In so far as the provisions are invalid, the content of the contract is governed by the statutory provisions.
Status at 01.01.2020
End user licence agreement
Please read this EULA carefully, as it sets out the basis upon which we license the Software for use.
By breaking the seal on the packaging of the Software, you agree to be bound by this EULA.[ If you do not agree to be bound by this EULA, you must [promptly] return the Software (in its sealed packaging) to your supplier.[ Upon returning the Software and providing proof of purchase, you will be entitled to a refund.]]
OR
By clicking "accept agreement" when you first install the Software, you agree to be bound by the provisions of this EULA.[ If you do not agree to be bound by the provisions of this EULA, you must [click "reject agreement" during the installation process and promptly return the Software (on the media upon which the Software was provided) to your supplier].[ Upon returning the Software and providing proof of purchase, you will be entitled to a refund.]]
OR
Before you download the Software from our website, we will ask you to give your express agreement to the provisions of this EULA.
By agreeing to be bound by this EULA, you further agree that [your employees] OR [any person you authorise to use the Software] OR [[identify persons]] will comply with the provision of this EULA.
1. Definitions
1.1 In this EULA[, except to the extent expressly provided otherwise]:
"Charges" means [those amounts that the parties have agreed in writing shall be payable by the User to the Licensor in respect of this EULA];
"Documentation" means [the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the User];
"Effective Date" means [the date upon which the User gives the User's express consent to this EULA, following the issue of this EULA by the Licensor];
"EULA" means [this end user licence agreement, including any amendments to this end user licence agreement from time to time];
"Force Majeure Event" means [an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars)];
"Intellectual Property Rights" means [all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs)];
"Licensor" means [[individual name] of [address]] OR [[company name], a company incorporated in [England and Wales] (registration number [registration number]) having its registered office at [address]] OR [[partnership name], a partnership established under the laws of [England and Wales] having its principal place of business at [address]];
"Licensor Indemnity Event" has the meaning given to it in Clause 13.1;
"Maintenance Services" means the [supply to the User] OR [application to the Software] OR [supply to the User and application to the Software] of Updates and Upgrades;
"Minimum Term" means[, in respect of this EULA, the period of 12 months beginning on the Effective Date];
"Services" means [any services that the Licensor provides to the User, or has an obligation to provide to the User, under this EULA];
"Software" means [identify software];
"Software Defect" means a defect, error or bug in the Software having [an adverse effect] OR [a material adverse effect] on [the appearance, operation, functionality or performance of the Software][, but excluding any defect, error or bug caused by or arising as a result of:
(a) [any act or omission of the User or any person authorised by the User to use the Software];
(b) [any use of the Software contrary to the Documentation by the User or any person authorised by the User to use the Software];
(c) [a failure of the User to perform or observe any of its obligations in this EULA]; and/or
(d) [an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification];]
"Software Specification" means [the specification for the Software set out in the Documentation];
"Source Code" means [the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software];
"Support Services" means [support in relation to the use of the Software and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise];
"Term" means [the term of this EULA, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2];
"Update" means [a hotfix, patch or minor version update to the Software];
"Upgrade" means [a major version upgrade of the Software];
"User" means [the person to whom the Licensor grants a right to use the Software under this EULA]; and
"User Indemnity Event" has the meaning given to it in Clause 13.3.
2. Credit
2.1 This document was created using a template from SEQ Legal (https://seqlegal.com).
You must retain the above credit. Use of this document without the credit is an infringement of copyright. However, you can purchase from us an equivalent document that does not include the credit.
3. Term
3.1 This EULA shall come into force upon the Effective Date.
3.2 This EULA shall continue in force [indefinitely] OR [until [date], at the beginning of which this EULA shall terminate automatically] OR [until [event], upon which this EULA shall terminate automatically], subject to termination in accordance with Clause 15 or any other provision of this EULA.
4. Licence
4.1 The Licensor hereby grants to the User from [the date of supply of the Software to the User][ until [the end of the Term]] a [worldwide, non-exclusive] licence to:
(a) [install[ [a single instance] of] the Software];
(b) [use[ [a single instance] of] the Software[ in accordance with the Documentation]]; and
(c) [create, store and maintain up to [5] back-up copies of the Software],
subject to the limitations and prohibitions set out and referred to in this Clause 4.
4.2 The User may not sub-license and must not purport to sub-license any rights granted under Clause 4.1[ without the prior written consent of the Licensor].
OR
4.2 The User may sub-license the rights granted in Clause 4.1 to [any third party][ for the purposes of [hosting the Software and supporting the User's use of the Software in accordance with this EULA] only]. Any such sub-licence shall automatically terminate upon the termination of the licence in Clause 4.1.
4.3 Save to the extent expressly permitted by this EULA or required by applicable law on a non-excludable basis, any licence granted under this Clause 4 shall be subject to the following prohibitions:
(a) [the User must not [sell, resell, rent, lease, loan, supply, publish, distribute or redistribute] the Software];
(b) [the User must not alter, edit or adapt the Software]; and
(c) [the User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software].
[additional list items]
4.4 The User shall be responsible for the security of copies of the Software supplied to the User under this EULA[ (or created from such copies)] and shall use all reasonable endeavours (including all reasonable security measures) to ensure that access to such copies is restricted to persons authorised to use them under this EULA.
5. Source Code
5.1 Nothing in this EULA shall give to the User or any other person any right to access or use the Source Code or constitute any licence of the Source Code.
6. Maintenance Services
6.1 The Licensor shall provide the Maintenance Services to the User [during the Term].
6.2 The Licensor shall provide the Maintenance Services [with reasonable skill and care] OR [in accordance with the standards of skill and care reasonably expected from a leading service provider in the Licensor's industry] OR [[specify standard(s)]].
6.3 The Licensor warrants to the User that the application of Updates and Upgrades to the Software by the Licensor will not introduce any Software Defects into the Software.
6.4 The Licensor warrants to the User that the application of Updates and Upgrades to the Software by the User in accordance with the instructions of the Licensor will not introduce any Software Defects into the Software.
6.5 The Licensor may suspend the provision of the Maintenance Services if any amount due to be paid by the User to the Licensor under this EULA is overdue, and the Licensor has given to the User at least [30 days'] written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.
6.6 [Either party may terminate the Maintenance Services by giving to the other party] OR [The Licensor may terminate the Maintenance Services by giving to the User] OR [The User may terminate the Maintenance Services by giving to the Licensor] at least [30 days'] written notice[ expiring on or at any time after the first anniversary of the Effective Date].
6.7 If the Licensor stops or makes a good faith decision to stop providing maintenance services in relation to the Software to its customers generally, then the Licensor may terminate the Maintenance Services by giving at least [90 days'] written notice of termination to the User.
6.8 If the Maintenance Services are terminated in accordance with the provisions of this Clause 6:
(a) the User must pay to the Licensor any outstanding Charges in respect of Maintenance Services provided to the User before the termination of the Maintenance Services;
(b) the Licensor must refund to the User any Charges paid by the User to the Licensor in respect of Maintenance Services that were to be provided to the User after the termination of the Maintenance Services; and
(c) the provisions of this Clause 6, excluding this Clause 6.8, shall cease to apply, but the other provisions of this EULA will continue notwithstanding such termination.
7. Support Services
7.1 The Licensor shall provide the Support Services to the User [during the Term].
7.2 The Licensor shall provide the Support Services [with reasonable skill and care] OR [in accordance with the standards of skill and care reasonably expected from a leading service provider in the Licensor's industry] OR [[specify standard(s)]].
7.3 The Licensor may suspend the provision of the Support Services if any amount due to be paid by the User to the Licensor under this EULA is overdue, and the Licensor has given to the User at least [30 days'] written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
7.4 [Either party may terminate the Support Services by giving to the other party] OR [The Licensor may terminate the Support Services by giving to the User] OR [The User may terminate the Support Services by giving to the Licensor] at least [30 days'] written notice[ expiring on or at any time after the first anniversary of the Effective Date].
7.5 If the Support Services are terminated in accordance with the provisions of this Clause 7:
(a) the User must pay to the Licensor any outstanding Charges in respect of Support Services provided to the User before the termination of the Support Services;
(b) the Licensor must refund to the User any Charges paid by the User to the Licensor in respect of Support Services that were to be provided to the User after the termination of the Support Services; and
(c) the provisions of this Clause 7, excluding this Clause 7.5, shall cease to apply, but the other provisions of this EULA will continue notwithstanding such termination.
8. No assignment of Intellectual Property Rights
8.1 Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the User, or from the User to the Licensor.
9. Charges
9.1 The User shall pay the Charges to the Licensor in accordance with this EULA.
9.2 All amounts stated in or in relation to this EULA are, unless the context requires otherwise, stated [inclusive of any applicable value added taxes] OR [exclusive of any applicable value added taxes, which will be added to those amounts and payable by the User to the Licensor].
10. Payments
10.1 The Licensor shall issue [invoices] OR [an invoice] OR [receipts] OR [a receipt] for the Charges to the User [specify when issued].
10.2 The User must pay the Charges to the Licensor [in advance] OR [within the period of [30 days] following [the issue of an invoice in accordance with this Clause 10] OR [the receipt of an invoice issued in accordance with this Clause 10]].
10.3 The User must pay the Charges by [debit card, credit card, direct debit, bank transfer or cheque] (using such payment details as are notified by the Licensor to the User from time to time).
10.4 If the User does not pay any amount properly due to the Licensor under this EULA, the Licensor may:
(a) charge the User interest on the overdue amount at the rate of [8% per annum above the Bank of England base rate from time to time] (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the User pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
11. Warranties
11.1 The Licensor warrants to the User that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.
11.2 The Licensor warrants to the User that:
(a) [the Software as provided will conform in all [material] respects with the Software Specification];
(b) [the Software will be supplied free from Software Defects[ and will remain free from Software Defects[ for a period of at least 12 months following the supply of the Software]]];
(c) [the Software will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs]; and
(d) [the Software shall incorporate security features reflecting the requirements of good industry practice].
[additional list items]
11.3 The Licensor warrants to the User that the Software[, when used by the User in accordance with this EULA,] will not breach [any laws, statutes or regulations applicable under English law].
11.4 The Licensor warrants to the User that the Software, when used by the User in accordance with this EULA, will not infringe the Intellectual Property Rights of any person [in any jurisdiction and under any applicable law].
11.5 If [the Licensor reasonably determines, or any third party alleges, that the use of the Software by the User in accordance with this EULA infringes any person's Intellectual Property Rights], the Licensor may[ acting reasonably] at its own cost and expense:
(a) modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights[, providing that [any such modification must not introduce any Software Defects into the Software and must not result in the Software failing to conform with the Software Specification]]; or
(b) procure for the User the right to use the Software in accordance with this EULA.
11.6 The User warrants to the Licensor that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.
11.7 All of the parties' warranties and representations in respect of the subject matter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this EULA or any related contract.
12. Acknowledgements and warranty limitations
12.1 The User acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.
12.2 The User acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be entirely secure.
12.3 The User acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compatible with any other software.
12.4 The User acknowledges that the Licensor will not provide any [legal, financial, accountancy or taxation advice] under this EULA or in relation to the Software; and, except to the extent expressly provided otherwise in this EULA, the Licensor does not warrant or represent that the Software or the use of the Software by the User will not give rise to any legal liability on the part of the User or any other person.
13. Indemnities
13.1 The Licensor shall indemnify and shall keep indemnified the User against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the User and arising directly or indirectly as a result of any breach by the Licensor of [this EULA] OR [[specify provisions]] (a "Licensor Indemnity Event").
13.2 The User must:
(a) upon becoming aware of an actual or potential Licensor Indemnity Event, notify the Licensor;
(b) provide to the Licensor all such assistance as may be reasonably requested by the Licensor in relation to the Licensor Indemnity Event;
(c) allow the Licensor the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Licensor Indemnity Event; and
(d) not admit liability to any third party in connection with the Licensor Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Licensor Indemnity Event without the prior written consent of the Licensor,
[without prejudice to the Licensor's obligations under Clause 13.1] OR [and the Licensor's obligation to indemnify the User under Clause 13.1 shall not apply unless the User complies with the requirements of this Clause 13.2].
13.3 The User shall indemnify and shall keep indemnified the Licensor against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Licensor and arising directly or indirectly as a result of any breach by the User of [this EULA] OR [[specify provisions]] (a "User Indemnity Event").
13.4 The Licensor must:
(a) upon becoming aware of an actual or potential User Indemnity Event, notify the User;
(b) provide to the User all such assistance as may be reasonably requested by the User in relation to the User Indemnity Event;
(c) allow the User the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the User Indemnity Event; and
(d) not admit liability to any third party in connection with the User Indemnity Event or settle any disputes or proceedings involving a third party and relating to the User Indemnity Event without the prior written consent of the User,
[without prejudice to the User's obligations under Clause 13.3] OR [and the User's obligation to indemnify the Licensor under Clause 13.3 shall not apply unless the Licensor complies with the requirements of this Clause 13.4].
13.5 The indemnity protection set out in this Clause 13 [shall] OR [shall not] be subject to the limitations and exclusions of liability set out in this EULA[, except [exceptions]].
14. Limitations and exclusions of liability
14.1 Nothing in this EULA will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law,
and, if a party is a consumer, that party's statutory rights will not be excluded or limited by this EULA, except to the extent permitted by law.
14.2 The limitations and exclusions of liability set out in this Clause 14 and elsewhere in this EULA:
(a) are subject to Clause 14.1; and
(b) govern all liabilities arising under this EULA or relating to the subject matter of this EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this EULA.
14.3 The Licensor will not be liable to the User in respect of any losses arising out of a Force Majeure Event.
14.4 The Licensor will not be liable to the User in respect of any loss of profits or anticipated savings.
14.5 The Licensor will not be liable to the User in respect of any loss of revenue or income.
14.6 The Licensor will not be liable to the User in respect of any loss of business, contracts or opportunities.
14.7 The Licensor will not be liable to the User in respect of any loss or corruption of any data, database or software.
14.8 The Licensor will not be liable to the User in respect of any special, indirect or consequential loss or damage.
14.9 The liability of the Licensor to the User under this EULA in respect of any event or series of related events shall not exceed the greater of:
(a) [amount]; and
(b) [the total amount paid and payable by the User to the Licensor under this EULA in the [12 month] period preceding the commencement of the event or events].
14.10 The aggregate liability of the Licensor to the User under this EULA shall not exceed the greater of:
(a) [amount]; and
(b) [the total amount paid and payable by the User to the Licensor under this EULA].
15. Termination
15.1 The Licensor may terminate this EULA by giving to the User [not less than 30 days'] written notice of termination[, expiring [at the end of any [calendar month]] OR [after the end of the Minimum Term]].
15.2 The User may terminate this EULA by giving to the Licensor [not less than 30 days'] written notice of termination[, expiring [at the end of any [calendar month]] OR [after the end of the Minimum Term]].
15.3 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:
(a) the other party commits any [breach] OR [material breach] of this EULA[, and the breach is not remediable];
(b) [the other party commits a [breach] OR [material breach] of this EULA, and the breach is remediable but the other party fails to remedy the breach within the period of [30 days] following the giving of a written notice to the other party requiring the breach to be remedied]; or
(c) [the other party persistently breaches this EULA (irrespective of whether such breaches collectively constitute a material breach)].
15.4 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this EULA)]; or
(d) [if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.]
15.5 The Licensor may terminate this EULA immediately by giving written notice to the User if:
(a) any amount due to be paid by the User to the Licensor under this EULA is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) the Licensor has given to the User at least [30 days'] written notice, following the failure to pay, of its intention to terminate this EULA in accordance with this Clause 15.5.
16. Effects of termination
16.1 Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 10.2, 10.4, 13, 14, 16, 17 and 18].
16.2 Except to the extent that this EULA expressly provides otherwise, the termination of this EULA shall not affect the accrued rights of either party.
16.3 Within [30 days] following the termination of this EULA for any reason:
(a) the User must pay to the Licensor [any Charges in respect of Services provided to the User before the termination of this EULA and in respect of licences in effect before the termination of this EULA]; and
(b) the Licensor must refund to the User [any Charges paid by the User to the Licensor in respect of Services that were to be (but are not) provided to the User after the termination of this EULA and in respect of licences that were to be (but are not) in effect after the termination of this EULA],
without prejudice to the parties' other legal rights.
16.4 For the avoidance of doubt, the licences of the Software in this EULA shall terminate upon the termination of this EULA; and, accordingly, the User must immediately cease to use the Software upon the termination of this EULA.
16.5 Within [10 Business Days] following the termination of this EULA, the User must:
(a) return to the Licensor or dispose of as the Licensor may instruct all media in its possession or control containing the Software; and
(b) irrevocably delete from all computer systems in its possession or control all copies of the Software.
17. General
17.1 No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.
17.2 If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
17.3 This EULA may not be varied except by a written document signed by or on behalf of each of the parties.
17.4 The User hereby agrees that the Licensor may assign the Licensor's contractual rights and obligations under this EULA to [any successor to all or a substantial part of the business of the Licensor from time to time] OR [any third party]. Save to the extent expressly permitted by applicable law, the User must not without the prior written consent of the Licensor assign, transfer or otherwise deal with any of the User's contractual rights or obligations under this EULA.
17.5 This EULA is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.
17.6 Subject to Clause 14.1, this EULA shall constitute the entire agreement between the parties in relation to the subject matter of this EULA, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
17.7 This EULA shall be governed by and construed in accordance with [English law].
17.8 The courts of [England] shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.
18. Interpretation
18.1 In this EULA, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
18.2 The Clause headings do not affect the interpretation of this EULA.
18.3 References in this EULA to "calendar months" are to [the 12 named periods (January, February and so on) into which a year is divided].
18.4 In this EULA, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
Free end user licence agreement: drafting notes
This document is a free-to-use software EULA or end user licence. Click-wrap and web-wrap licences can be created using this document, as well as more traditional shrink-wrap licences. The document governs the legal relationship between a licensor and its customers.
Note: although this EULA can be used for B2C licences as well as B2B licences, it does not include a distance selling clause. See our software download T&Cs for a document incorporating such a clause.
There are a range of optional provisions in the EULA. These cover such matters as: a contractual right to a return/refund; the provision of support in relation to the software; and the supply and application of updates to the software.
Subsection: Shrink-wrap software agreement
This wording may be used for "shrink-wrap" software agreements - that is, agreements that are visible through product packaging and are formally accepted when a person unseals the software packaging. There may be a right to return software, because a customer may not have a chance to review the agreement terms before purchasing the software.
Should the User return the software if the terms of this document are not accepted?
Within what period must the software be returned?
Will there be a right to return the software for a refund?
Subsection: Click-wrap software agreement
This wording may be used for "click-wrap" software agreements - that is, agreements that are formally accepted as part of the software installation process. There is an optional right to return the software, which should be included where customers will or may not have a chance to review the agreement terms before purchasing the software.
Will customers have a right to return the software if they do not accept this document?
How should the software be returned?
Will the customer be entitled to a refund upon the return of the software under this provision?
Subsection: Web-wrap software agreement
This wording may be used for "web-wrap" agreements - that is, agreements that are formally accepted on a website before the software is downloaded. Accordingly, there is no right to return the software.
Subsection: Agreement on behalf of others relating to software licence
.
What third parties may use the software on behalf of, or under the authorisation of, the licensee?
Identify relevant persons.
Clause 1: Definitions
Clause 1.1
Definition of Charges
Define "Charges".
Definition of Documentation
How should the software documentation be identified?
Definition of Effective Date
Define "Effective Date".
Definition of Force Majeure Event
Specify particular examples of force majeure events.
Definition of Licensor
Is the first party an individual, a company or a partnership?
What is the full name of the individual (including middle names)?
What is the postal address of the first party?
What is the full company name of the first party?
In which jurisdiction is the first party incorporated?
What is the registration number of the first party?
What is the registered office address of the first party?
What is the name of the first party partnership?
In which jurisdiction is the first party partnership established?
Where is the principal place of business of the first party?
Definition of Maintenance Services
Will the Licensor supply updates/upgrades to the User, apply them to the software, or both?
Definition of Minimum Term
What minimum term will apply?
Definition of Services
Define "Services".
Definition of Software
Identify the software here.
Definition of Software Defect
Will non-material defects count as software defects for the purposes of this definition?
In what ways may a relevant defect affect the software?
Should a set of general exclusions from this definition be included?
What exclusions should apply here?
Definition of Software Specification
Define "Software Specification".
Definition of Source Code
Consider whether to adapt the definition of source code.
Definition of Support Services
In relation to what exactly will support be provided?
Definition of Term
Define "Term", the period during which the contract will subsist.
Definition of Update
Define "Update".
Definition of Upgrade
Define "Upgrade".
Definition of User
Define "User".
Clause 2: Credit
Clause: Free documents licensing warning
. Although you need to retain the credit, you should remove the inline copyright warning from this document before use.
Clause 3: Term
Clause 3.2
Is the term of the contract indefinite, or will it come to an end upon some agreed date, or upon the occurrence of a defined event?
Upon what date will the contract terminate?
Upon the occurrence of what event will the contract terminate?
Clause 4: Licence
Clause 4.1
When does the licence to use the software commence?
Will the licence expire at some point?
What sort of licence is granted?
When will the licence end?
What specific rights are granted to the User?
Will the licence specify how many instances of the software may be installed?
How many instances of the software may be installed?
Will the licence specify how many instances of the software may be used?
Can the use of the software be circumscribed by reference to its documentation?
How many instances of the software may be used?
How many back-up copies of the software may be created?
Clause 4.2
Will the User have the option to ask the Licensor for consent to sub-licensing?
Clause 4.2
To whom may the software be sub-licensed?
Is the right to sub-license restricted by reference to purpose?
Specify the purposes by reference to which sub-licensing is permitted.
Clause 4.3
There are English/EU law restrictions upon the types of prohibition that may be applied to a software licence. In UsedSoft GmbH v Oracle International Corp. (C-128/11), the court ruled that a software vendor could not prevent a perpetual licensee from selling a "used" licence for software downloaded from the internet. The law in this area is complex and uncertain, and you should consider taking legal advice if resale may be an issue for you.
What general prohibitions apply to the use of the software?
Specify the transactional prohibitions applying to the use of the software.
Clause 4.4
.
Include this text only if the User has the right to take copies.
Clause 5: Source Code
.
Clause 6: Maintenance Services
.
Clause 6.1
During what period will the maintenance services be provided?
Clause 6.2
What standard(s) must the maintenance services meet?
Specify the standard or standards the services must meet.
Clause 6.3
.
Clause 6.4
.
Clause 6.5
. Will the Licensor have a right to suspend the maintenance services in the event that the User fails to pay any amount due under the contract?
How much notice of an intention to suspend the maintenance services must the Licensor give to the User?
Clause 6.6
.
Which of the parties has the right to terminate the maintenance services (independently from any termination of the entire contract)?
How much notice of termination of the maintenance services must be given?
Will there be a minimum period for the maintenance services?
Clause 6.7
.
How much notice of discontinuance of the software maintenance services must the Licensor give to the User?
Clause 6.8
.
Clause 7: Support Services
.
Clause 7.1
During what period will the support services be provided?
Clause 7.2
.
What standard(s) must the support services meet?
Specify the standard or standards the support services must meet.
Clause 7.3
.
How much notice must the Licensor give to the User of a suspension of services following non-payment?
Clause 7.4
.
Which of the parties has the right to terminate the support services (independently from any termination of the entire contract)?
How much notice of termination of the support services must be given?
Will there be a minimum period for the support services?
Clause 7.5
.
Clause 8: No assignment of Intellectual Property Rights
.
Clause 9: Charges
.
Clause 9.2
.
Are payment amounts stated inclusive or exclusive of VAT?
Clause 10: Payments
.
Clause 10.1
Will the Licensor issue invoices in advance of payment, or receipts in arrears?
When will invoices / receipts be issued?
Clause 10.2
Will charges be paid in advance or following the issue of an invoice?
What is the period for payment of invoices?
When does the period for payment of an invoice begin to run?
Clause 10.3
.
Using what methods should payments be made?
Clause 10.4
.
What contractual interest rate should apply to late payments?
Clause 11: Warranties
.
Clause 11.1
.
Clause 11.2
.
What warranties in relation to the quality of the software will the Licensor give to the User?
Is this warranty subject to a materiality threshold?
Will this warranty relate to a specific period?
For what period will this warranty apply?
Clause 11.3
.
What is the scope of this warranty?
Clause 11.4
.
What is the jurisdictional coverage of the warranty?
Clause 11.5
.
In what circumstances may the Licensor exercise its rights under this provision?
Should there be an express requirement for the Licensor to act reasonably in relation to the exercise of its rights under this provision?
Are there any express limitations on this right to modify?
Specify the limitations on the right to modify.
Clause 11.6
.
Clause 12: Acknowledgements and warranty limitations
.
Clause 12.1
.
Clause 12.2
.
Clause 12.3
.
Clause 12.4
.
What types of advice should be specified here?
Clause 13: Indemnities
Should the document include indemnities?
Clause 13.1
.
If this provision is included, losses suffered by the second party as a result of a breach of the contract by the first party will be assessed on an indemnity basis, rather than a standard basis.
Will the indemnity cover any breach of contract, or only the breach of specified provision(s)?
Specify those provisions the breach of which will be covered by the indemnity.
Clause 13.2
.
Will the indemnity only apply where the User complies with the requirements of this provision?
Clause 13.3
.
If this provision is included, losses suffered by the first party as a result of a breach of the contract by the second party will be assessed on an indemnity basis, rather than a standard basis.
Will the indemnity cover any breach of contract, or only the breach of specified provision(s)?
Specify those provisions the breach of which will be covered by the indemnity.
Clause 13.4
.
Will the indemnity only apply where the Licensor complies with the requirements of this provision?
Clause 13.5
.
Will the indemnity provisions be subject to the limitations and exclusions of liability in the document?
Will there be any exceptions to the general rule here?
Specify the exceptions to the general rule.
Clause 14: Limitations and exclusions of liability
Contractual limitations and exclusions of liability are regulated and controlled by law, and the courts may rule that particular limitations and exclusions of liability in contracts are unenforceable.
Exclusions and limitations of liability in UK B2B contracts are primarily regulated by the Unfair Contract Terms Act 1977 ("UCTA"), while those in UK B2C contracts are primarily regulated by the Consumer Rights Act 2015 ("CRA"). Contracts regulated by UCTA cannot exclude or restrict a party's liability for death or personal injury resulting from negligence (Section 2(1), UCTA).
Except insofar as the relevant term satisfies the requirements of reasonableness, such contracts cannot exclude or restrict liability: (i) for negligence (which includes a breach of an express or implied contractual obligation to take reasonable care or exercise reasonable skill) (Section 2(2), UCTA); or (ii) for misrepresentation (Section 3, Misrepresentation Act 1967). In addition, if a contract is regulated by UCTA, and one of the parties is dealing on the other's written standard terms of business, then except insofar as the relevant contractual term satisfies the requirements of reasonableness the other party cannot: (i) exclude or restrict his liability in respect of a breach of contract; or (ii) claim to be entitled to render a contractual performance substantially different from that which was reasonably expected of him; or (iii) claim to be entitled, in respect of the whole or any part of his contractual obligation, to render no contractual performance at all (see Section 3, UCTA).
UCTA includes various other restrictions, particularly in the case of contracts for the sale of goods and contracts under which possession or ownership of goods passes.
Consumer contracts regulated by the CRA cannot exclude or restrict liability for death or personal injury resulting from negligence (Section 65(1), CRA). Further, any "unfair term" in such a contract will not be binding on the consumer (Section 62(1), CRA). A contractual term is unfair "if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract to the detriment of the consumer" (Section 62(3), CRA). Section 57 of the CRA provides (inter alia) that a term in a services contract will not bind consumers if it excludes any liability of the trader to provide the services with reasonable care and skill. A "grey list" of provisions that may be regarded as unfair is set out in Part 1 of Schedule 2 to the CRA. Some of these have implications for the drafting of limitations and exclusions of liability. For example, they include: "[a] term which has the object or effect of excluding or limiting the trader's liability in the event of the death of or personal injury to the consumer resulting from an act or omission of the trader." "Where a term of a consumer contract, or a consumer notice, purports to exclude or restrict a trader's liability for negligence, a person is not to be taken to have voluntarily accepted any risk merely because the person agreed to or knew about the term or notice" (Section 65(2), CRA).
The courts are particularly likely to intervene where a party is seeking to rely on a limitation or exclusion of liability in its standard terms and conditions, but will also sometimes intervene where a term has been individually negotiated. The courts may be more likely to rule that provisions excluding liability, as opposed to those merely limiting liability, are unenforceable. If there is a risk that any particular limitation or exclusion of liability will be found to be unenforceable by the courts, that provision should usually be drafted as an independent term, and be numbered separately from the other provisions.
These guidance notes provide a very incomplete and basic overview of a complex subject. Accordingly, you should take legal advice if you may wish to rely upon a limitation or exclusion of liability.
Clause 14.1
Do not delete this provision (except upon legal advice). Without this provision, the specific limitations and exclusions of liability in the document are more likely to be unenforceable.
Clause 14.4
.
Clause 14.5
.
Clause 14.6
.
Clause 14.7
.
Clause 14.8
.
Clause 14.9
. Do you want to include a per event liability cap in this document?
Liability caps may be unenforceable in practice.
Do you want to include a per event liability cap in this document?
What monetary amount should be used in the liability cap?
What floating amount should be used in the liability cap?
The charge payable during what period, prior to the event or events, should be used for calculating this liability cap?
Clause 14.10
. Do you want to include an aggregate liability cap in this document?
Liability caps may be unenforceable in practice.
Do you want to include an aggregate liability cap in this document?
What monetary amount should be used in the liability cap?
What floating amount should be used in the liability cap?
Clause 15: Termination
Clause 15.1
.
What notice period will apply?
Must the notice of termination expire after some particular period, or on some particular day?
How will the limitation on the expiry of the termination notice period operate?
Specify the relevant period.
Clause 15.2
What notice period will apply?
Must the notice of termination expire after some particular period, or on some particular day?
How will the limitation on the expiry of the termination notice period operate?
Specify the relevant period.
Clause 15.3
In what circumstances may a party terminate for breach?
Will all breaches, or only material breaches, give rise to a right of termination?
What is the remediation period here?
Should each party have a right to terminate if the other party is persistently in breach of contract, even where there has been no material breach?
Clause 15.4
Will the winding up of a party as part of a solvent company reorganisation give rise to a right of termination for the other party?
Will or might a party to the document be an individual, rather than a corporate entity?
Clause 15.5
.
What notice period applies in the case of termination for non-payment?
Clause 16: Effects of termination
Clause 16.3
.
This provision will not be suitable in all circumstances. The appropriate treatment of charges upon termination will vary from contract to contract.
Within what period following termination must charges in respect of services be settled?
Specify those charges that the User must pay to the Licensor upon termination.
Specify those charges that the Licensor must refund to the User upon termination.
Clause 16.4
.
Clause 16.5
.
Within what period following termination must licensed software copies be returned, destroyed or deleted?
Clause 17: General
Clause 17.1
.
Clause 17.2
.
Clause 17.3
.
This is intended to prevent, for example, one party wrongfully claiming that a term of the contract was changed in a telephone call.
Clause 17.4
.
To whom may the Licensor assign its rights and obligations under the contract?
Clause 17.5
.
This provision is designed to exclude any rights a third party may have under the Contracts (Rights of Third Parties) Act 1999.
Clause 17.6
.
Clause 17.7
This template has been drafted to work in the English law context. If you plan to change the governing law, you should have the document reviewed by someone with expertise in the law of the relevant jurisdiction.
Which law will govern the document?
Clause 17.8
.
As a practical matter, it makes sense for the courts with expertise in the relevant law to have the right to adjudicate disputes. Where one of the parties is outside England (or at least the UK), you may want to grant the courts of their home jurisdiction the right to adjudicate disputes, as this could ease enforcement in some circumstances.
The courts of which jurisdiction will have the exclusive right to adjudicate disputes relating to the document (subject to applicable law)?
Clause 18: Interpretation
Should provisions concerning the interpretation of the document be included?
Clause 18.1
.
Clause 18.2
.
Clause 18.3
.
Clause 18.4
.
This provision is designed to exclude the application of a rule of interpretation known as the ejusdem generis rule. That rule may affect the interpretation of contractual clauses that list particular examples or instances of some more general idea, by limiting the scope of the general idea by reference to those particular examples or instances.