General Terms and Conditions of Business (GTB) of the win.rar GmbH for Customers who are entrepreneurs
Section 1 Scope of Application of the GTB
The General Terms and Conditions of Business below apply solely to win.rar GmbH Customers who are entrepreneurs. The legal relationship of win.rar GmbH to these Customers is governed solely and exclusively by the General Terms and Conditions of Business below. Objection is hereby raised to application of the Customer's general terms and conditions of business.
An entrepreneur in the sense of the GTB is any natural or legal person or any business partnership, which has got legal capacity, acquiring the computer program WinRAR or RAR (hereinafter known as RAR Software) in exercise of a commercial or self-employed activity.
Section 2 Proper Law
Governing law of this contract is solely and exclusively German law, excluding application of the regulations of international private law and of the United Nations Convention on the International Sale of Goods (CISG). The contractual language is German. Any versions of these GTB in other languages provided by win.rar GmbH are merely translations. The original version in German is solely and exclusively decisive for interpretation of the GTB. Any references to statutory regulations and the contents thereof are only of a declarative nature.
Section 3 Subject of the Contract
The subject of this contract between the Customer and win.rar GmbH is the purchase of a simple utilization right to the RAR Software, hereinafter known as the Licence. Said Licence permits the purchaser to use the RAR Software within the scope of the Licensor´s Licence Terms. The Customer may acquire a Licence for a single computer or for multiple computers.
Section 4 Conveyance of the Licence to the Customer
The Licence is conveyed by sending the Licence key to the Customer. Prerequisite for the effective conveyance is the Customer's agreement with the Licensor's Licence Terms.
Section 5 Characteristics of the RAR Software
The Customer may learn about the scope of the features of the RAR Software as part of the "Try Before You Buy" model (see Section 6). The characteristics of the RAR Software as warranted by the contract do not exceed the scope of the functions provided and available for use during the test phase. The above provision does not apply to functions which were not available during the test phase for technical reasons (see Section 6).
Section 6 The "Try Before You Buy" Model
The Customer may download the RAR Software, at no charge, from the Web sites www.win-rar.com and www.rarlab.com and use the software, again at no charge, for 40 days. During this period, all of the functions of the RAR Software are available to the user with the exception of the functions: "Add authenticity information", "Show protocol file" and "Delete protocol file". The purchaser should test the RAR Software during this test phase to determine if it meets his requirements and needs. In particular, the Customer must determine if the RAR Software runs under his operating system and in his desired hardware and software environment. He promises to acquire a Licence for the RAR Software only if and when he has assured himself that he can answer the above-mentioned questions with "yes".
Section 7 Obligation of the Customer to examine and notify
- After activating the RAR Software with the Licence key, the Customer is obliged to examine RAR Software and immediately (without culpably hesitation) notify the win.rar GmbH of any defects in writing. The obligation to examine exists also with regard to the Licence in respect of defects of title and any updates of the RAR Software.
- If the Customer should fail to provide notification of a defect, the sold Licence or the RAR Software itself shall be deemed as approved in the form provided. This does not apply if this defect was not recognisable during examination or was fraudulently concealed by the win.rar GmbH.
- If such a defect should appear at a later time, notification of the same must be made immediately (without culpably hesitation) upon its discovery; otherwise the Licence and RAR Software shall be deemed as accepted also in respect of this defect. This applies in particular when the party who has purchased the Licence from the Customer notifies the latter of the defect.
Section 8 Data Backup
Win.rar GmbH hereby calls the Customer's attention to the necessity of making data backups regularly.
Section 9 Subsequent Performance and Bug Report
If a defect is determined in the RAR Software or the Licence, the Customer is first obligated to notify win.rar GmbH of the presumed defect by sending an e-mail to the address support(at)win-rar.com. The Support Department will then examine the circumstances.
In relation to material defects of the RAR Software the win.rar GmbH will, if possible and necessary, provide to the Customer an improved release of the RAR Software. Win.rar GmbH may refuse subsequent performance if it is possible only by incurring unreasonable costs. The statutory provisions for subsequent performance in reference to legal defects shall not be affected.
Section 10 Cancellation, Reduction of Purchase Price or Damage Compensation
The Customer may reduce the purchase price, cancel the contract or demand compensation for any expenditures incurred in vain or damage compensation within the limits of Section 11, if and when:
- The defect cannot be remedied;
- The defect is not remedied within a reasonable period set by the Customer;
- Subsequent performance is refused;
- Subsequent performance has failed or is unreasonable for the Customer.
If the Customer chooses reduction of the purchase price, the price shall be reduced in the ratio of the value of the Licence respectively the RAR Software in defect-free condition to the value in the actual condition at the time of the conclusion of the contract.
Section 11 Limitation of Damage Compensation and Liability
The provisions below apply to any and all Customer claims against win.rar GmbH for damage compensation or for compensation of expenditures incurred in vain, regardless of the legal nature of said claims. The above provision is without prejudice for liability in accordance with the Product Liability Act (Produkthaftungsgesetz).
Win.rar GmbH is not liable for material or pecuniary damage resulting from slight negligence on the part of win.rar GmbH or its vicarious agents. The above provision does not apply to culpable breach of major contractual obligations. If win.rar GmbH is liable for material or pecuniary damage resulting from slight negligence as a consequence of the breach of major contractual obligations, the following provisions apply:
- Liability extends only to the damage typical for the circumstances. The amount of the liability is limited to the paid purchase price.
- In the event of loss of data, liability is limited to the expenditures typical for restoration which would be incurred if backup copies have been regularly created as appropriate for the pertinent risk.
Employees, associated workers, representatives and vicarious agents of win.rar GmbH are personally liable only to the extent of the limitations described in Section 11 as well.
Section 12 Miscellaneous
Deviating regulations or supplementary agreements will not be valid unless made in writing. The above provision also applies to the amendment of this clause. If one or more provisions of this GTB shall be or become void the remaining provisions shall remain in effect.
Section 13 Jurisdiction
The parties hereby agree the exclusive jurisdiction of courts at the registered office of the win.rar GmbH for any and all disputes arising in connection with this contract. In the case that the customer is not a merchant, a legal entity under public law nor a public law separate asset within the meaning of the law and his place of general public jurisdiction is located within the Federal Republic of Germany, he is excluded from the Agreement in the first sentence of this clause. Jurisdiction for court dunning procedures shall not be affected by Section 13.
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