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EULA – End User License Agreement of TML-Edition GmbH
WHEREAS,
TML-Edition GmbH (hereinafter: the Licensor) is the software developer and rights holder of the computer game “Dead Man’s Diary” (hereinafter: the Software). The scenario is a post-apocalyptic environment created by a nuclear disaster. The player (hereinafter: the Licensee) must ensure the survival of the character in single-player mode.
All business relations between the Licensor and the Licensee for the purpose of software licensing shall be governed exclusively by the following General License Terms in the version valid at the time of order confirmation. There are no ancillary agreements. In addition, the contractual terms and conditions of the respective store from which the Licensee has obtained the computer game apply.
NOW THEREFORE, the Parties agree as follows:
§ 1 Object of Agreement and Conclusion of Contract
(1) The Licensee acquires the computer game “Dead Man’s Diary” from the Licensor for use on his/her console and PC. The performance description available to the Licensee at the time of conclusion of the contract shall be decisive for the quality of the software supplied by the Licensor.
The source code is not part of the Software as defined in the present Agreement.
(2) Due to the “USK 12” rating. the offer is aimed at persons of legal age and minors who have reached the age of 12 or older. Minors require the effective consent of their legal guardians to conclude a contract. They must ensure that the age restrictions and the statutory provisions for the protection of minors are complied with at all times, possibly by means of technical precautions.
(3) The Software is offered for download through the stores on the Steam, Epic Games Store, Xbox Store and PlayStation Store platforms. Here, the Licensee has set up his/her own account.
The contract for the use of the computer game (hereinafter: the Agreement) is concluded by installation of the Software on the Licensee’s terminal device. The contractual terms and conditions of the respective portal from which the computer game was downloaded shall apply in addition.
§ 2 Terms and Scope of Use
(1) The Licensor grants the Licensee a non-exclusive, perpetual right to use the Software for single-user use via its account. Portals may grant a family release; in this respect, the permitted scope of use is additionally governed by the contractual terms and conditions of the respective portal.
(2) The Licensee may use the Software only for his/her own private activities. Commercial subletting or transfer is generally prohibited.
No backup copies may be made.
(3) The Licensee is not authorized to make changes, extensions or other modifications to the Software.
(4) The above provisions also apply to the updates provided by the respective platform.
§ 3 Purchase Price, Terms of Payment
The purchase price for the computer game results from the respectively underlying offer in the Store and – depending on the means of payment chosen by the Licensee – is payable to the portal operator.
The terms of payment are defined by the respective portal via which the Licensee purchased the computer game.
§ 4 Protection of Software
(1) Unless the Licensee is expressly granted rights under this Agreement, all rights to the Software that is the subject matter of the present Agreement (and all copies made by the Licensee) – in particular copyright, rights to or in inventions, and technical property rights – belong exclusively to the Licensor. This also applies to modifications of the software by the Licensor. The Licensee’s ownership of any data carriers of such copies shall remain unaffected.
(2) The Licensee shall adequately protect the Software provided in order to exclude misuse.
(3) The Licensee shall not modify or remove any copyright notices, copy protection mechanisms, marks and/or control numbers or marks of Licensor.
(4) The Licensee shall be held liable for ensuring that the Software is not used for racist, discriminatory, harassing, threatening or pornographic purposes, for purposes that endanger the protection of minors, for politically extreme or otherwise illegal purposes or for purposes that violate official regulations or requirements; and that no corresponding data are created and/or used.
§ 5 Transfer of the Software
(1) The Licensee may transfer the Software to a third party only as a whole and with complete and final cessation of his/her own use of the Software. Any temporary or partial transfer of use to third parties against payment is prohibited, regardless of whether the Software is transferred in tangible or intangible form.
(2) Transfer of the Software requires the written consent of the Licensor. The latter shall grant such consent if the Licensee assures the Licensor in writing that he/she has transferred all original copies of the Software to the third party and has deleted any copies he/she has made, and the third party declares in writing his/her/its consent to Licensor to the terms and conditions of use and passing on agreed herein.
§ 6 Liability for Third-Party Rights
The Licensor shall not be held liable for any infringement of third-party rights by the Licensee, if and insofar as such infringement results from a transgression of the rights of use granted under the present Agreement. In this case, the Licensee shall indemnify and hold harmless the Licensor upon first request for and against all claims of third parties.
§ 7 Information and Cooperation Obligations of the Licensee
(1) The Licensee has studied the essential functional features of the Software including USK [rating] and bears the risk that it meets his/her wishes and needs.
(2) The Licensee shall bear the sole responsibility for setting up a functional hardware and software environment for the Software, which shall be sufficiently dimensioned, also taking into account the additional load caused by the Software. The same applies to suitable telecommunications equipment.
(3) The Licensee shall thoroughly test the Software prior to its use for freedom from defects and for usability in the existing hardware and software configuration.
(4) The Licensee shall comply with the instructions given by the Licensor for the installation and operation of the Software.
(5) The Licensee shall take reasonable precautions in the event that the Software does not work properly in whole or in part, and [makes sure that] the data generated with are backed up.
(6) Unless the Licensee expressly indicates otherwise in advance, Licensor may assume that all of Licensee’s data with which it may come into contact are backed up.
(7) The Licensee shall bear any disadvantages and additional costs arising from a breach of these obligations.
§ 8 Defects of Quality and Title; other Impairments of Performance; Limitation Period
(1) The Licensor warrants, in accordance with the rules of the law on the sale of goods, the agreed quality of the Software and freedom of the use of the Software by the Licensee to the extent stipulated in the contract from conflict with any rights of third parties. The contractual terms and conditions of the respective portal from which the computer game was downloaded shall apply in addition.
(2) If any third parties assert claims preventing the Licensee from exercising the rights of use contractually granted to him/her, the Licensee shall inform the Licensor comprehensively and without undue delay in writing. He/she hereby authorizes the Licensor to conduct actions against third parties judicially and extrajudicially by itself. If the Licensee is sued, he/she shall coordinate his/her steps with the Licensor and take any procedural actions, in particular acknowledgments and settlements, only with the Licensor’s consent.
The Licensor shall defend the claims at its own expense and indemnify the Licensee for and against all costs and damages associated with the defense of the claim, unless these based on the Licensee’s conduct in breach of duty.
(3) The Licensee may derive rights from other breaches of duty by the Licensor only if he/she has notified the Licensor of such breaches in writing and has granted the Licensor a grace period for remedial action. This shall not apply if and insofar as remedial action cannot be considered due to the nature of the breach of duty. The limits set forth in § 9 apply to damages or reimbursement of futile expenses.
(4) The limitation period shall be governed by the statutory provisions and commence upon installation of the Software; the same period shall apply to all and any other claims, regardless of their nature, against the Licensor.
§ 9 Liability
(1) In all cases of contractual and non-contractual liability, the Licensor shall be held liable for damages exclusively in accordance with the following limits:
a) in the case of intent, as well as in the case of the absence of a quality for which the Licensor has assumed a guarantee, to the full amount;
b) in the event of gross negligence, only to the amount of the foreseeable damage that was to be prevented by the breached obligation;
c) in other cases: only from breach of a material contractual obligation if the purpose of the contract is jeopardized thereby, but always only to the amount of the foreseeable damage;
d) in addition, if and insofar as the Licensor is insured against the damage incurred, to the extent of the insurance coverage and subject to the condition precedent of the insurance payment.
(2) The limitations of liability pursuant to (1) shall not apply in the case of liability for personal injury and liability under the Product Liability Act.
(3) The Licensor shall have the defense of contributory negligence.
(4) In the event of data loss or data destruction, respectively, the Contractor shall be held liable only if it causes the destruction intentionally, by gross negligence or due to a breach of a material contractual obligation and the Customer has at the same time ensured that the destroyed data can be reconstructed with reasonable effort from data material held in machine-readable form.
§ 10 Data Privacy
The Licensor shall comply with the rules of data privacy. It shall ensure that its employees and vicarious agents also comply with these provisions and regulations; in particular, it shall oblige them to maintain data secrecy before commencing their activities. The Licensor does not intend to process or use personal data on behalf of the Licensee. Rather, personal data are transferred only in exceptional cases as a secondary consequence of the contractual services by the Licensor. Personal data shall be handled by the Licensor in accordance with the data privacy regulations.
§ 11 Force Majeure
Neither of the Parties is obliged to fulfill the contractual obligations in case of and for the duration of force majeure. In particular, the following circumstances shall be considered force majeure in this context:
– Fire/explosion/inundation for which the contracting Party is not responsible;
– war, mutiny, blockade, embargo;
– labor dispute lasting more than 6 weeks and not culpably brought about by the Party;
– technical problems of the internet outside the control of a Party; this shall not apply if and insofar as the provider also offers the telecommunication service.
Either contracting Party shall notify the respective Counterparty without undue delay of the occurrence of a case of force majeure.
§ 12 Concluding Provisions
(1) The contractual relationship shall be governed by German substantive law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) Should any provision of the present Agreement be or become ineffective or comprise a gap, this shall not affect the effectiveness of the remaining provisions hereof. Instead of the ineffective provision, an effective provision shall be deemed agreed that economically comes as close as possible to the Parties’ economic intents. The same applies mutatis mutandis in the event of a gap. In the event of an impermissible time limit, the legally permissible term shall apply.
As of: September 13, 2021
WHEREAS,
TML-Edition GmbH (hereinafter: the Licensor) is the software developer and rights holder of the computer game “Dead Man’s Diary” (hereinafter: the Software). The scenario is a post-apocalyptic environment created by a nuclear disaster. The player (hereinafter: the Licensee) must ensure the survival of the character in single-player mode.
All business relations between the Licensor and the Licensee for the purpose of software licensing shall be governed exclusively by the following General License Terms in the version valid at the time of order confirmation. There are no ancillary agreements. In addition, the contractual terms and conditions of the respective store from which the Licensee has obtained the computer game apply.
NOW THEREFORE, the Parties agree as follows:
§ 1 Object of Agreement and Conclusion of Contract
(1) The Licensee acquires the computer game “Dead Man’s Diary” from the Licensor for use on his/her console and PC. The performance description available to the Licensee at the time of conclusion of the contract shall be decisive for the quality of the software supplied by the Licensor.
The source code is not part of the Software as defined in the present Agreement.
(2) Due to the “USK 12” rating. the offer is aimed at persons of legal age and minors who have reached the age of 12 or older. Minors require the effective consent of their legal guardians to conclude a contract. They must ensure that the age restrictions and the statutory provisions for the protection of minors are complied with at all times, possibly by means of technical precautions.
(3) The Software is offered for download through the stores on the Steam, Epic Games Store, Xbox Store and PlayStation Store platforms. Here, the Licensee has set up his/her own account.
The contract for the use of the computer game (hereinafter: the Agreement) is concluded by installation of the Software on the Licensee’s terminal device. The contractual terms and conditions of the respective portal from which the computer game was downloaded shall apply in addition.
§ 2 Terms and Scope of Use
(1) The Licensor grants the Licensee a non-exclusive, perpetual right to use the Software for single-user use via its account. Portals may grant a family release; in this respect, the permitted scope of use is additionally governed by the contractual terms and conditions of the respective portal.
(2) The Licensee may use the Software only for his/her own private activities. Commercial subletting or transfer is generally prohibited.
No backup copies may be made.
(3) The Licensee is not authorized to make changes, extensions or other modifications to the Software.
(4) The above provisions also apply to the updates provided by the respective platform.
§ 3 Purchase Price, Terms of Payment
The purchase price for the computer game results from the respectively underlying offer in the Store and – depending on the means of payment chosen by the Licensee – is payable to the portal operator.
The terms of payment are defined by the respective portal via which the Licensee purchased the computer game.
§ 4 Protection of Software
(1) Unless the Licensee is expressly granted rights under this Agreement, all rights to the Software that is the subject matter of the present Agreement (and all copies made by the Licensee) – in particular copyright, rights to or in inventions, and technical property rights – belong exclusively to the Licensor. This also applies to modifications of the software by the Licensor. The Licensee’s ownership of any data carriers of such copies shall remain unaffected.
(2) The Licensee shall adequately protect the Software provided in order to exclude misuse.
(3) The Licensee shall not modify or remove any copyright notices, copy protection mechanisms, marks and/or control numbers or marks of Licensor.
(4) The Licensee shall be held liable for ensuring that the Software is not used for racist, discriminatory, harassing, threatening or pornographic purposes, for purposes that endanger the protection of minors, for politically extreme or otherwise illegal purposes or for purposes that violate official regulations or requirements; and that no corresponding data are created and/or used.
§ 5 Transfer of the Software
(1) The Licensee may transfer the Software to a third party only as a whole and with complete and final cessation of his/her own use of the Software. Any temporary or partial transfer of use to third parties against payment is prohibited, regardless of whether the Software is transferred in tangible or intangible form.
(2) Transfer of the Software requires the written consent of the Licensor. The latter shall grant such consent if the Licensee assures the Licensor in writing that he/she has transferred all original copies of the Software to the third party and has deleted any copies he/she has made, and the third party declares in writing his/her/its consent to Licensor to the terms and conditions of use and passing on agreed herein.
§ 6 Liability for Third-Party Rights
The Licensor shall not be held liable for any infringement of third-party rights by the Licensee, if and insofar as such infringement results from a transgression of the rights of use granted under the present Agreement. In this case, the Licensee shall indemnify and hold harmless the Licensor upon first request for and against all claims of third parties.
§ 7 Information and Cooperation Obligations of the Licensee
(1) The Licensee has studied the essential functional features of the Software including USK [rating] and bears the risk that it meets his/her wishes and needs.
(2) The Licensee shall bear the sole responsibility for setting up a functional hardware and software environment for the Software, which shall be sufficiently dimensioned, also taking into account the additional load caused by the Software. The same applies to suitable telecommunications equipment.
(3) The Licensee shall thoroughly test the Software prior to its use for freedom from defects and for usability in the existing hardware and software configuration.
(4) The Licensee shall comply with the instructions given by the Licensor for the installation and operation of the Software.
(5) The Licensee shall take reasonable precautions in the event that the Software does not work properly in whole or in part, and [makes sure that] the data generated with are backed up.
(6) Unless the Licensee expressly indicates otherwise in advance, Licensor may assume that all of Licensee’s data with which it may come into contact are backed up.
(7) The Licensee shall bear any disadvantages and additional costs arising from a breach of these obligations.
§ 8 Defects of Quality and Title; other Impairments of Performance; Limitation Period
(1) The Licensor warrants, in accordance with the rules of the law on the sale of goods, the agreed quality of the Software and freedom of the use of the Software by the Licensee to the extent stipulated in the contract from conflict with any rights of third parties. The contractual terms and conditions of the respective portal from which the computer game was downloaded shall apply in addition.
(2) If any third parties assert claims preventing the Licensee from exercising the rights of use contractually granted to him/her, the Licensee shall inform the Licensor comprehensively and without undue delay in writing. He/she hereby authorizes the Licensor to conduct actions against third parties judicially and extrajudicially by itself. If the Licensee is sued, he/she shall coordinate his/her steps with the Licensor and take any procedural actions, in particular acknowledgments and settlements, only with the Licensor’s consent.
The Licensor shall defend the claims at its own expense and indemnify the Licensee for and against all costs and damages associated with the defense of the claim, unless these based on the Licensee’s conduct in breach of duty.
(3) The Licensee may derive rights from other breaches of duty by the Licensor only if he/she has notified the Licensor of such breaches in writing and has granted the Licensor a grace period for remedial action. This shall not apply if and insofar as remedial action cannot be considered due to the nature of the breach of duty. The limits set forth in § 9 apply to damages or reimbursement of futile expenses.
(4) The limitation period shall be governed by the statutory provisions and commence upon installation of the Software; the same period shall apply to all and any other claims, regardless of their nature, against the Licensor.
§ 9 Liability
(1) In all cases of contractual and non-contractual liability, the Licensor shall be held liable for damages exclusively in accordance with the following limits:
a) in the case of intent, as well as in the case of the absence of a quality for which the Licensor has assumed a guarantee, to the full amount;
b) in the event of gross negligence, only to the amount of the foreseeable damage that was to be prevented by the breached obligation;
c) in other cases: only from breach of a material contractual obligation if the purpose of the contract is jeopardized thereby, but always only to the amount of the foreseeable damage;
d) in addition, if and insofar as the Licensor is insured against the damage incurred, to the extent of the insurance coverage and subject to the condition precedent of the insurance payment.
(2) The limitations of liability pursuant to (1) shall not apply in the case of liability for personal injury and liability under the Product Liability Act.
(3) The Licensor shall have the defense of contributory negligence.
(4) In the event of data loss or data destruction, respectively, the Contractor shall be held liable only if it causes the destruction intentionally, by gross negligence or due to a breach of a material contractual obligation and the Customer has at the same time ensured that the destroyed data can be reconstructed with reasonable effort from data material held in machine-readable form.
§ 10 Data Privacy
The Licensor shall comply with the rules of data privacy. It shall ensure that its employees and vicarious agents also comply with these provisions and regulations; in particular, it shall oblige them to maintain data secrecy before commencing their activities. The Licensor does not intend to process or use personal data on behalf of the Licensee. Rather, personal data are transferred only in exceptional cases as a secondary consequence of the contractual services by the Licensor. Personal data shall be handled by the Licensor in accordance with the data privacy regulations.
§ 11 Force Majeure
Neither of the Parties is obliged to fulfill the contractual obligations in case of and for the duration of force majeure. In particular, the following circumstances shall be considered force majeure in this context:
– Fire/explosion/inundation for which the contracting Party is not responsible;
– war, mutiny, blockade, embargo;
– labor dispute lasting more than 6 weeks and not culpably brought about by the Party;
– technical problems of the internet outside the control of a Party; this shall not apply if and insofar as the provider also offers the telecommunication service.
Either contracting Party shall notify the respective Counterparty without undue delay of the occurrence of a case of force majeure.
§ 12 Concluding Provisions
(1) The contractual relationship shall be governed by German substantive law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) Should any provision of the present Agreement be or become ineffective or comprise a gap, this shall not affect the effectiveness of the remaining provisions hereof. Instead of the ineffective provision, an effective provision shall be deemed agreed that economically comes as close as possible to the Parties’ economic intents. The same applies mutatis mutandis in the event of a gap. In the event of an impermissible time limit, the legally permissible term shall apply.
As of: September 13, 2021