between
Thomas Fröscher, Lucas-Cranach-Weg 21, 73770 Denkendorf, Germany (“Licensor”)
and the Licensee.
(1) This End User Licensing Agreement (“Agreement”) covers, at the discretion of the Licensee, the granting of usage rights in the relevant software product (“Licensed Object”) for the IntelliJ Platform of JetBrains s. r. o. by the Licensor to the Licensee; such licence shall be granted either on a permanent basis or limited in time, as desired by the Licensee; if a time-limited licence is selected, the Licensee may renew such licence.
(2) Other objects of this Agreement include that the Licensee shall be entitled to receive updates (assuming the Semantic versioning syntax X.Y.Z that would thus include all Z versions), and shall also be entitled to receive upgrades (all Y versions) if the Licensor and Licensee have concluded an Upgrade Agreement pursuant to § 6 regulating the delivery of upgrades.
(3) The Licensed Object consists of the executable software code (object code) and the related user documentation in the German or English language in the form of online help. The source code is not part of the Licensed Object.
(4) The Licensee may be a consumer pursuant to § 13 German Civil Code (BGB) using the Licence Object for private purposes, or an enterprise pursuant to § 14 BGB which uses the software product predominantly for commercial or business purposes.
(5) JetBrains is the producer and operator of the IntelliJ Platform, which forms the basis of the Licensed Object. JetBrains is neither the Licensor, nor is it responsible for any liability and/or warranty relating to the Licensed Object.
(6) The licence fee paid by the Licensee to JetBrains shall cover both the provision of the Licensed Object and the provision of upgrades.
The Licensee may choose between a software licensing agreement
(1) Under Agreement Option 1, the Licensor shall grant the Licensee the non-exclusive right, unlimited in space and time-limited by the term of the Agreement, to use the Licensed Object (of the version status as at the time the Agreement was concluded) in accordance with this Agreement and the intended purpose, and limited by the licensed number of simultaneous users. Should the right of use continue without interruption for no less than 12 months and should the Licensee then fail to renew the Agreement, the time-limited right of use will be transformed into a permanent right of use to the version status existing 12 months prior. If the Licensee again renews the Software Licensing Agreement, the licence will then relate to the current version as amended from time to time.
(2) With the conclusion of the Software Licensing Agreement in the form of the Agreement Option 2, the Licensor shall grant the Licensee the non-exclusive right, unlimited in space and time, to use the Licensed Object (of the version status as at the time the Agreement was concluded) in accordance with this Agreement and the intended purpose, and limited by the licensed number of simultaneous users.
(3) The granting of rights shall cover the version of the Licensed Object available at the time the Software Licensing Agreement is concluded, as well as the updates already made available by the Licensor for purposes of bug fixing and/or the addition of new functions. During the term of the Software Licensing Agreement as Agreement Option 1 and during the term of the existing Upgrade Agreement in case of Agreement Option 2, the granted rights shall also include all upgrades provided by the Licensor in this time period.
(4) Should the Upgrade Agreement be renewed (for a Software Licensing Agreement in the Agreement Option 2), the existing version of the Licensed Object shall be replaced by the current version, as at the time the Agreement is concluded, and shall be included in the existing usage right. If the Upgrade Agreement is not renewed, the existing usage right shall be limited to the update version as at the time of the conclusion of the Agreement.
(5) The Licensor notes that JetBrains reserves the right to discontinue operation of the IntelliJ platform upon appropriate prior notice. The discontinuation of the IntelliJ platform would make the use of the Licensed Object permanently impossible, unless JetBrains were to offer an alternative solution.
(6) The right to reproduce the Licensed Object shall include only the installation of the Licensed Object on a computer system in the direct possession of the Licensee in order to enable the intended purpose of use, as well as the reproduction required for loading, displaying, running, transferring and storing the Licensed Object, and the right to create a backup copy of the Licensed Object by a user entitled thereto according to § 69 d para. 2 German Copyright Act (UrhG).
(7) The right to modify the Licensed Object shall be limited to the maintenance or restoration of the Licensed Object’s agreed functionality.
(8) The right to decompile the Licensed Object shall be granted only subject to the requirements of § 69 e para. 1 no. 1 to 3 UrhG and in the context of § 69 e para. 2 no. 1 to 3 UrhG.
(9) The Licensee shall not be granted any further rights of use in the Licensed Object.
(1) The Licence Objects shall be provided as a download exclusively via the JetBrains marketplace platform and the IntelliJ platform. There shall be no physical delivery of data carriers.
(2) The Licensee shall receive the user documentation as online help pursuant to § 1 para. 3.
(3) The Licensee shall be responsible for ensuring that the system environment is compliant with the requirements of the Licensed Object. The requirements are set out in the Licence Object’s product description on the IntelliJ platform.
(4) In order to use the Licensed Object, the Licensee requires an Internet connection and must allow the Licensed Object to connect to the IntelliJ platform in order to validate the licence from time to time, as the long-term use of the Licensed Object will otherwise not be possible.
(5) The Licensed Object shall be installed by the Licensee.
(1) If the Licensee, upon concluding the Software Licensing Agreement with a one-month term of use, has selected the option “automatic renewal”, the Agreement shall be extended by one month, respectively, unless the Licensee terminates the Agreement, by submitting a notice which observes at least the text form requirement, one calendar day prior to the end of the term of use. If the Licensee has not selected the option “automatic renewal”, the Agreement shall end, unless the Licensee concludes a new agreement.
(2) This shall not affect the right of a contracting party to terminate without notice in the event of an important cause. Notice of termination may be given by electronic means.
(1) When the Licensee concludes either option of the Software Licensing Agreement, the Licensee shall be granted the right to receive the available updates during the term of the licence; at the same time, the Licensee shall conclude an agreement for receiving upgrades (Upgrade Agreement) for the duration of the term of use (for Agreement Option 1) or (for the Agreement Option 2 ) for a term of 12 months in accordance with the following provisions.
(2) If the Licensee, upon concluding the Software Licensing Agreement for a permanent right of use, has selected the option “automatic renewal”, the Upgrade Agreement shall be extended by 12 months, respectively, unless the Licensee terminates this Upgrade Agreement by submitting a notice which observes at least the text form requirement, no less than one calendar day prior to the end of the term of the Agreement. The Licensor is entitled to the right of ordinary termination with 9 months’ notice to the respective end of the term of the Agreement.
(3) The Licensor undertakes to provide updates and upgrades to the Licensee, respectively in accordance with § 4.
(4) The provision of § 5 para. 2 shall apply accordingly.
(1) The software product provided by the Licensor corresponds to the product description of the Licensed Object on the IntelliJ platform. Product descriptions shall not be considered a guarantee, unless they are part of a separate agreement which observes at least text form. No further warranty is provided. There shall be in particular no warranty that the Licensed Object meets the special requirements of the Licensee. The Licensee alone shall be responsible for selecting, installing and using it, as well as for the results intended thereby. For the delivery of updates and upgrades (hereinafter collectively referred to as “supplies of new versions”), the claims for defects shall be limited to what is new in the supplied new version compared with the previous version status.
(2) Should the Licensee request the cure of a defect (Nacherfüllung), the Licensor shall be entitled, if the Licensee is an enterprise pursuant to § 14 BGB, to choose between correcting the defect (Nachbesserung) or delivering a substitute (Nachlieferung). If the Licensee has concluded the Agreement as a consumer, this selection shall be at the option of the Licensee. After the Licensee has granted the Licensor two reasonable grace periods, and the second one after the first one has expired, then, upon their fruitless expiration, or if a reasonable number of attempts to deliver a substitute have failed, the Licensee shall be entitled, at his option, to withdraw from the Agreement (if a material defect exists), or (without regard to the seriousness of the defect) to reduce the paid remuneration and to demand damages or compensation for expenses. The cure may also be effected by the delivery or installation of a new program version or a workaround.
(3) Defects shall be notified by the submission of an understandable description of the symptoms, if possible supported by written records, hard copies or other documents illustrating the defects, meeting at least the requirement of the text form. The notification of a defect should enable the reproduction of the defect. The statutory duties of the Licensee to examine and to report defects as an entrepreneur within the meaning of § 14 BGB shall remain unaffected.
(4) Claims for defects shall expire after 12 months if the Licensee is an entrepreneur within the meaning of § 14 BGB. If the Licensee is a consumer within the meaning of § 13 BGB, the statutory period of limitation for defects shall apply.
(5) Damages shall be subject to the restrictions of § 9.
(6) Changes to or expansions of the Licensed Object carried out by the Licensee himself or third parties shall void any claims for defects on the part of the Licensee, unless the Licensee proves that the change or expansion has not caused the defect. The Licensor shall not be liable for any defects resulting from any incorrect operation or operating conditions or from the use of unsuitable operating resources by the Licensee.
(1) The software delivered/provided by the Licensor is free of any third-party rights which might prevent its contractual use.
(2) Should third parties assert such rights to which they are entitled, the Licensor shall do everything in its power, at its own cost, to defend the software against such asserted third-party rights. In the event that such third-party rights are asserted, the Licensee shall inform the Licensor in writing without undue delay; the Licensee shall grant the Licensor all necessary powers of attorney and authorisations required to defend the software against the asserted third-party rights.
(3) To the extent that defects in title are present, the Licensor shall be (a) entitled, at its discretion, (i) to eliminate the third-party rights preventing the contractual use of the software through legal means, (ii) to bring to an end the assertion of such rights, or (iii) to change or replace the software so that it no longer infringes on third-party rights, if and to the extent that this does not materially reduce the functionality of the software that is owed, and (b) the Licensor is obligated to compensate the Licensee for any necessary reimbursable costs incurred which relate to the enforcement of rights.
(4) Should the release of such rights pursuant to para. 3 fail within a reasonable grace period granted by the Licensee, the Licensee shall be entitled, subject to the statutory requirements, to withdraw from the Agreement or reduce the remuneration and demand damages.
(5) § 7 para. 4 and 6 shall otherwise apply accordingly.
(1) The Licensor shall be liable under this Agreement in accordance with the following provisions set forth in (a) to (f):
(2) The Licensor shall be liable for the loss of data only up to such amount as would have occurred for restoring the data, if the data had been properly and regularly backed up.
(3) To the extent that the Licensor’s liability is excluded or restricted under the foregoing, this shall also apply for the liability of the legal representing bodies of the Licensor as well as any vicarious agents of the Licensor used by the Licensor in the performance of its contractual obligations (Erfüllungsgehilfen), or persons otherwise employed by the Licensor in the context of its business in a directed capacity (Verrichtungsgehilfen), in particular employees.
(4) Any additional liability of the Licensee for this reason shall be excluded.
(1) This Agreement shall be governed by the laws of the Federal Republic of Germany with the exception of the UN Sales Convention (United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980).
(2) The parties agree on the registered seat of the Licensor as the place of exclusive jurisdiction for all disputes arising from and in connection with this Agreement, if the Licensee is a merchant within the meaning of the German Commercial Code or if the Licensee has no seat in the Federal Republic of Germany as at the time the action is filed.
(1) In order to be valid, all oral amendments and supplements to this Agreement shall require at least text form to be effective. This also applies for this text form clause. Any changes which fail to comply with the text form requirement shall be invalid. The validity of individual agreements (regardless of their form) shall not be affected by this text form clause.
(2) Should individual provisions of this Agreement be invalid, this shall have no effect on the legal force of the remaining provisions. The contracting parties shall in this case agree on valid provisions coming as close as possible to the intended purpose of the invalid provisions. The same shall apply for the closure of any gaps in this Agreement.
This Agreement was prepared in the German language. If the Agreement is translated into the English language, the German language version of the Agreement shall prevail in the event of any contradictions in the content of the different language versions.
As of: 14 February 2019