End-user license agreement for the temporary use of flyingshapes (software) and for the trial phase as well as for the permanently free version of the software
flyingshapes GmbH (Mombacher Str. 68, 55122 Mainz, commercial register registration HRB 48179 Local Court of Mainz, represented by Jonas Kunze and Dr. Johannes Mattmann, see legal noticehttps://www.flyingshapes.com/impressum - hereinafter also referred to as "flyingshapes", "we" and/or "us")
You, irrespective of whether you are a natural person or legal entity, consumer or entrepreneur (hereinafter also referred to as "you", "customer" or "licensee")
§ 1 Scope of application, contract language, definition of terms
(1) The following terms and conditions of us for the temporary use of software apply to all contractual relationships with the licensee of Steam (hereinafter referred to as "licensee") in connection with the rental of our software flyingshapes (hereinafter also referred to as "software") via Steam and become part of the contract, unless written individual agreements are agreed. By downloading, installing or otherwise using the software, the licensee acknowledges the validity of the following provision as binding. The provisions shall apply accordingly if and insofar as new program versions of the software (e.g. patches, bug fixes, updates, upgrades, etc.) are provided. Unless otherwise regulated below, these provisions shall apply in addition to the Steam User Agreement.
(2) The software is protected by copyright. The copyright regarding the leased software is also subject matter of this contract.
(3) The current version of these terms and conditions at the time of downloading always applies. Deviating or conflicting terms and conditions of the customer shall only be recognized by us if we have expressly agreed to them in writing.
(4) In accordance with this provision, we reserve the right to amend these terms and conditions if this amendment is reasonable for you taking into account the interests of both parties; this is particularly the case if the amendments are without significant legal and/or economic disadvantages for you, e.g. in the event of changes to the storage space of the documentation or changes to our contact information.
Furthermore, if these terms and conditions are changed, you will be informed by a message in the software the next time you use the software. If you do not agree with the change, you have the right to terminate the agreement with Steam to use this software under Steam's terms and conditions.
(5) The language used for the contract is exclusively German. Translations of these terms and conditions into other languages are for your information only. In the event of any differences between the language versions, the German text shall prevail.
(6) The customer is a consumer insofar as the purpose of the products or services ordered cannot be predominantly attributed to his or her commercial or self-employed professional activity.
On the other hand, an entrepreneur is any natural person or legal entity or partnership with legal capacity who, when concluding the contract, acts in the exercise of its commercial or independent professional activity.
A partnership with legal capacity is a partnership that is endowed with the ability to acquire rights and incur liabilities
§ 2 Our service within the scope of software licensing
(1) We rent the software provided by Steam to the licensee for the duration specified in § 4, as well as an electronic user manual and other electronic documentation (e.g. operating instructions, help files, online help, other technical information and documents). The source code is not part of the contract and is not supplied. The software and other documentation is available exclusively via download from the Steam web shop, or alternatively the documentation is also available on our website (www.flyingshapes.com).
(2) The user manual or other documentation of the software on our website or on third party websites (e.g. Steam) describes in detail which functions and services the software provides when used in accordance with the contract. Only the respective description shall be decisive for the agreed quality of the software and its intended use. Public statements, promotions or advertisements do not represent any indication of the quality of the software programs.
(3) Our services in connection with the rental of the contractual software do not include (a) software installation or de-installation at the end of the rental period (both are to be performed by the licensee), (b) customer-specific adaptations, training, user support and other services or work beyond the rental of the contractual software described above. In particular, we do not owe any services which enable the connection and data exchange with other software, even if the software contains interfaces. Both the establishment of this connection and the services previously excluded in this paragraph or not mentioned here shall only be provided against additional payment within the framework of a separate agreement to be concluded with the customer.
(4) In particular, the following are not included in our services
a. creating backups
b. ensuring the downward compatibility of the software
c. the creation and provision of new program versions, unless this is done voluntarily, e.g. as part of a maintenance program
d. maintaining the functional scope of the software; in the event of a reduction in the functional scope, the customer shall be entitled to terminate the subscription in accordance with Steam's terms and conditions
e. a warranty on the software in whole or in part; in the event that the software is discontinued, the customer shall be entitled to terminate the subscription in accordance with Steam's terms and conditions
(5) Any access codes required for the use of the software ((hereinafter also referred to as "license keys") shall be made available to the licensee by us or by other third parties authorized to transfer them.
§ 3 Granting of rights
(1) Upon payment in full of the valid and visible fee to Steam for the subscription, the licensee shall receive the non-exclusive, non-transferable and non-sublicensable right to use the software to the extent granted in this contract, limited in time to the term of this license agreement. All software, data carriers and the user documentation provided shall be subject to retention of title and/or use shall be prohibited prior to full payment of the fee to Steam. The contractual use includes the installation as well as the loading, display and execution of the installed software.
(2) The licensee is entitled to make a backup copy of the data carrier provided to him. The licensee shall visibly affix the note "Backup Copy" and a copyright note of the manufacturer to the backup copy made.
(3) In addition, the licensee shall only be entitled to copy, edit or decompile the software if this is legally permissible and only if the necessary information is not made accessible by the software manufacturer at the licensee's request.
(4) Beyond the cases mentioned in paragraphs 1 to 3, the licensee is not entitled to duplicate the software.
(5) The licensee is not entitled to transfer the copy of the software handed over to him or her or any backup copy that may have been made to any third party. In particular, he or she is not permitted to sell, lend, rent or sub-license the software in any other way or to reproduce the software publicly or make it accessible.
(6) If the licensee violates any of the above provisions, all rights of use granted within the framework of this contract shall immediately become invalid and shall automatically revert to us. In this case, the licensee must immediately and completely cease using the software, delete all copies of the software installed on his or her systems and delete any backup copies made or hand them over to us.
(7) The above provisions shall also apply within the framework of the free trial phase as well as for the permanently free version of the software, which is available exclusively for use in the private - non-commercial - environment.
§ 4 Contractual term and termination
The contractual term and termination options result from the licensee's contractual relationship with Steam.
§ 5 Protection of the software
The licensee is obliged to take appropriate measures to protect the software from access by unauthorized third parties, in particular to store all copies of the software in a protected place.
§ 6 Liability for material defects and defects of title
(1) Technical data, specifications and performance specifications given in public statements, in particular in advertising material, shall not be deemed to be quality specifications. The functionality of the software is initially based on the description in the user documentation and the supplementary agreements made. As for the rest, the software must be suitable for the use assumed under this contract and must otherwise have a quality that is usual for software of the same type.
(2) We shall provide and maintain the software in a condition suitable for contractual use. The removal of defects shall be carried out by Steam, at our option, either by replacement delivery or by subsequent improvement, which may also take the form of a circumvention solution, as long as the contractual use is not significantly impaired. The obligation to maintain does not include the adaptation of the software to changed operating conditions and technical and functional developments, such as changes to the IT environment, in particular changes to the hardware or operating system, adaptation to the functional scope of competing products or the creation of compatibility with new data formats.
(3) The liability for damages, regardless of fault, for defects which were already present at the time of conclusion of the contract is excluded.
(4) The licensee is obliged to notify Steam of any defects in the software immediately after their discovery. When notifying material defects, this is done by describing the time of occurrence of the defects and the detailed circumstances, provided that the provisions of Steam do not establish any further prerequisites.
(5) The aforementioned rights of the licensee to maintain the software pursuant to paragraphs 2 and 4 and the other statutory defect rights shall not apply within the framework of the trial phase and within the framework of the permanently free version of the software (lending contract). Within the scope of this lending we only compensate for damage suffered as a result of our fraudulently concealing a defect in law or a defect in the software.
§ 7 Exclusion of the right to reduce the license fee
There is no right to a reduction of the license fee in the event of a defect in the software. This does not affect flyingshapes' obligation to provide and maintain the software in the contractual condition. If the licensee waives the plea of limitation, any claim to enrichment by the licensee shall also remain unaffected, even if the licensee pays without reservation.
§ 8 Liability in other respects
(1) We shall be liable for intent and gross negligence. In the event of slight negligence, we shall only be liable in the event of breach of a material contractual obligation (cardinal obligation), the fulfillment of which is essential for the proper performance of the contract and on the observance of which the licensee may regularly rely, as well as in the event of damage resulting from injury to life, limb or health. Liability under the Product Liability Act and for fraudulent concealment of a defect and for a guarantee for the quality of the item or for an agreement thereon shall remain unaffected.
(2) We owe the care customary in the industry. When determining whether we are at fault, it must be taken into account that software cannot be created without technical errors.
(3) In the event of a slightly negligent breach of an obligation which is essential for achieving the purpose of the contract (cardinal obligation), our liability shall be limited in amount to the damage which is foreseeable and typical for the type of transaction in question.
(4) We shall not be liable for the loss of data and/or programs insofar as the damage is due to the fact that the licensee has failed to carry out data backups and thereby failed to ensure that lost data can be restored with reasonable effort.
(5) The above limitation of liability also applies to the personal liability of employees, representatives and organs of flyingshapes GmbH.
(6) Within the scope of the software trial phase and the permanently free version of the software, we are only responsible for intent and gross negligence. Liability for a negligent breach of an obligation under paragraph 3 is excluded.
§ 9 Trial phase and permanently free version of the software
(1) The trial phase for extensive testing of the software shall last for a period of one month and may be used for private and commercial purposes. Subsequently, it is necessary to conclude a license agreement with Steam for further use in accordance with this agreement.
(2) In addition, there is an unlimited free version of the software as long as the software is used for purely private - non-commercial - purposes.
(3) With regard to the rights of use, reference is made to § 3 paragraph 7.
(4) At the end of the free trial phase and at the end of the permanent free version of the software, the use of the software and the other services, in particular the documentation, shall cease immediately.
(5) With regard to maintenance obligations and warranty rights, reference is made to § 6 para. 5.
(6) With regard to liability in other respects, reference is made to § 8 para. 6.
§ 10 Newsletter
For the purpose of sending you newsletters and other electronic communications of an advertising nature, we require your e-mail address and, if applicable, your name for personal address. As a rule, our newsletters contain information about our services and products and accompanying information (such as error messages, change logs, safety instructions), offers and information about our company.
Double-Opt-In: The registration to our newsletter takes place over the Double-Opt-In-Procedure. After registration with your e-mail address you will receive an e-mail from us in which you will be asked to confirm your registration by clicking on a link. This confirmation is necessary in order to avoid misuse of external e-mail addresses.
If you are a consumer, electronic messages are sent on the basis of your consent in accordance with Art. 6 Para. 1 sentence 1 lit. a GDPR in conjunction with Section 7 para. 2 no. 3 of the German Unfair Competition Act or if a consent - because you are an entrepreneur - is not necessary, due to our legitimate interest in direct marketing according to Art. 6 para. 1 sentence 1 lit. f GDPR in conjunction with Section 7 para. 3 of the German Unfair Competition Act to be able to send you user-friendly and secure messages which serve our business and scientific interests as well as benefit the users of the software.
You can revoke your consent at any time with effect for the future by sending an e-mail to email@example.com. You will find a link to unsubscribe from the newsletter at the end of each newsletter.
A protocol is created for the purpose of proving consent in accordance with clause15 of the data protection information of our flyingshapes app.
§ 11 Final provisions
(1) The terms and conditions written here are complete and final. Amendments and supplements to these terms and conditions should be made in writing in order to avoid confusion or dispute between the parties over the content of the contract agreed in each case.
(2) If you were domiciled or habitually resident in Germany at the time the contract was concluded and either moved out of Germany at the time we brought the legal action or your domicile or habitual residence is unknown at that time, the place of jurisdiction for all disputes shall be the registered office of our company in Mainz.
(3) We draw your attention to the fact that, in addition to ordinary legal action, you also have the option of out-of-court settlement of disputes in accordance with Regulation (EU) No. 524/2013. Details can be found in Regulation (EU) No. 524/2013 and on the website:http://ec.europa.eu/consumers/odr
Our e-mail address is firstname.lastname@example.org
In accordance with Section 36 of the German Consumer Dispute Settlement Act, we point out that we are not obliged to participate in an out-of-court dispute resolution procedure before a consumer arbitration board.
(4) These GTC shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(5) Should individual provisions of this contract be invalid, this shall not affect the remainder of the contract.