1. General

(1) These licence conditions and terms of use (“Terms of Use“) apply to the use of versions of Projective software (e.g. “Strawberry“), including the use of user documentation and other accompanying material (in the following also referred to as “Software“). By agreeing to these Terms of Use during installation and/or use of the Software the contracting user (“User“) undertakes to Projective Technology GmbH (“Projective“) that it will comply strictly with these Terms of Use.
(2) The General Terms and Conditions (“GTC”) of Projective are subsidiary to these Terms of Use. The currently applicable form of the GTC will be available on Projective’s website for downloading.

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.

(6) Transfer of the Software requires the written consent of Projective in all cases. Projective will consent if the User provides Projective with a written statement by the new user in which the new user undertakes to Projective that it will comply with the terms and conditions of use and transfer contained within these Terms of Use, and if the User guarantees Projective in writing that it has transferred all copies of the Software to the new user and deleted the copies in its possession. Projective may refuse consent where the use of the Software by the new user would be contrary to the legitimate interests of Projective. The User will inform Projective of each transfer without delay and supply the name and complete address for service of the new user to Projective in writing.

3. Third Party Software

The Software can contain elements of third-party software and/or open-source software, to which separate terms of use may apply. The applicable third party or open-source software terms of use are available by typing the IP address or hostname of Customers server into a web browser and adding "/licenses/index.html" (e.g. “https://demoberry.skies.link/licenses/index.html”), if required for the lawful use of the Software. The User undertakes that it will only install and/or use the Software if it agrees to the terms of use of this third party or open-source software, which take precedence over these Terms of Use. The User will refrain from installing and using the Software if it does not agree to those terms of use.

4. Liability

(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

(1) The law of the Federal Republic of Germany applies to these Terms of Use and all legal relationships between Projective and the User arising therefrom. The UN Convention on the International Sale of Goods (CISG) is excluded.

(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

(1) Alterations and amendments to these Terms of Use must be in writing. This applies to changes to the written form requirement itself. E-mail or other electronic communication is not sufficient to fulfil the written form requirement.

(2) Should individual terms of these Terms of Use be or become invalid or incapable of execution, the remaining terms will remain unaffected. In place of the invalid term the provision most closely conforming to the commercial purpose of the invalid term will be considered to have been agreed. The same applies where these Terms of Use are found to be incomplete.

(3) The User is not permitted to assign rights arising from the contractual relationship with Projective without the prior consent of Projective.