2. Rights of Use
(1) Projective grants the User a non-exclusive right to use the Software supplied in the object code or as Software-as-a-Service (“SaaS”) to the agreed extent, or in the absence of such agreement, to the extent appropriate for the purpose of the contract.
(2) The right to use the Software is limited (a) in time in cases of SaaS (e.g. Skies), Software rental or Software tests and (b) to the extent that the Software may only be used for a defined number of users agreed. Exceeding the scope of licenses is not, under any circumstances, permitted without the prior consent of Projective.
(3) The User may only revise the Software, and in particular carry out modifications and extensions, where this is expressly permitted by mandatory law.
(4) The User is not permitted to reconvert or decode the Software or extract any program elements. It will not decompile or disassemble the Software, carry out reverse engineering or otherwise attempt to derive the source code. Where the User is permitted by mandatory law to undertake reverse engineering or decompilation to achieve full functionality or interoperability with other software programs the User must inform Projective in advance of the nature and scope of the intended activity. Decompilation is only permitted if the User establishes a legal, legitimate interest in carrying out these activities.
(5) Copyright notes, trademarks or other identifying features of the Software shall not be modified or removed.
3. Third Party Software
(1) Projective accepts unlimited liability for intentional or grossly negligent damage and personal injury, i.e. death, bodily injury or injury to health caused by Projective.
(2) Further claims by the User for damages and costs (“Damages Claims”) arising from any cause in law, in particular through breach of contract or liability in tort, are excluded. This does not apply to compulsory liability, e.g. pursuant to the German Product Liability Act, intentional or grossly negligent acts, fraudulent concealment of defects, or culpable breach of essential contractual obligations by Projective. Essential contractual obligations are those concerning supply, performance and protection, which are either essential to fulfil the purpose of the contract or where the User regularly relies and is entitled to rely upon Projective’s compliance and where failure to comply would lead to rights and legal positions of the User being removed or limited in such a way that the contractual purpose can no longer be fulfilled. In the absence of intent or gross negligence, however, Damages Claims arising from the breach of essential contractual obligations are limited to contractually typical, foreseeable damages.
(3) To the extent that liability of Projective is limited to contractually typical, foreseeable loss, Projective is liable for each damaging event only up to two (2) times the agreed price of the relevant goods and services. Where a significantly higher risk is identifiable in a particular case, Projective will offer the User a higher liability sum but reserves the right to adjust the price accordingly.
(4) In case of loss of data Projective is only liable to the extent that the User has backed up the data at adequate intervals, no less than once per day, secured in a machine-readable format and thereby ensured that the data can be restored at a reasonable cost. Where the User fails to carry out such back-up procedures Projective’s liability is limited to the costs which would have been necessarily incurred in restoring the data from properly backed-up data, as well as loss caused by the loss of current data which would have also been lost had daily backing-up occurred.
5. Applicable Law, Place of Jurisdiction
(2) The mutually agreed place of jurisdiction for all legal disputes will be Berlin, Germany. Projective however reserves the right to commence an action or other court procedure in the general place of jurisdiction of the User.
6. Final Provisions
(3) The User is not permitted to assign rights arising from the contractual relationship with Projective without the prior consent of Projective.