END-USER LICENCE AGREEMENT (EULA)

1 Subject of the agreement
1) The "PhotoMinutes" software is protected by copyright; both the title and the trade mark are protected by the law governing trade marks and titles.
2) To the extent that MODERATIO GmbH does not possess the property rights in the software or parts thereof itself, MODERATIO GmbH possesses the rights to pass it on to and permit use by third parties.
3) The software is licensed and not sold. On purchasing the software, the Licensee shall only acquire title in the physical data carrier and any other accompanying written material included in the scope of delivery. The Licensee acquires the right to use the software in accordance with the following provisions:

2 Scope of licence
1) This licence permits the Licensee to use the software:
a) If the Licensee has purchased an individual licence for the software, he/she may only use the software on one computer at any time. The usability of the software is guaranteed by the activation code. This is valid for one computer and on request for a second mobile device. Further claims are excluded. Use of the software shall mean that the software is loaded either into a temporary computer memory such as a RAM or into a permanent memory such as an external hard disk or CD-ROM.
b) If the Licensee has bought multiple licences for the software, he/she may only use as many copies of the software at any one time as he/she has purchased licences. The Licensee requires additional licences for each copy of the software which is installed on a generally accessible data medium such as a server. If the probable number of software users exceeds the number of licences purchased, the Licensee shall have a reasonable number of mechanisms or procedures to ensure that the number of individuals using the software simultaneously does not exceed the number of licences.
c) The products purchased and the number of licences are listed in the confirmation of order and the invoice. The products are distributed through MODERATIO GmbH or third parties.
2) The Licensee may make copies of the software including but not limited to back-up copies to whatever extent is customary.
3) If the Licensee has purchased a licence package from MODERATIO GmbH, he/she may himself produce the same number of copies as he/she has bought licences and use these in accordance with the provisions of this licence agreement.

3 Restriction of licence
1) Any written material belonging to the software is protected by copyright. It may not be reproduced, disseminated, translated or altered. No copyright notes or trade marks may be removed.
2) The right to use the software may only be transferred to third parties with the written consent of MODERATIO GmbH and subject to the conditions of this contract.
3) The Licensee may not pass the software or any material belonging to the software to third parties or make this in any way accessible to third parties without the prior written consent of MODERATIO GmbH.
4) Using the software on more than one computer without a licence or distributing it in an unauthorised manner via file-sharing sites and similar Internet media will be prosecuted under civil and criminal law.
5) The Licensee may not reverse engineer, decompile or disassemble the software, nor may he/she change or remove copyright notices or trade marks.
6) The software is licensed as an individual product. The Licensee may not separate software components to use them on more than one computer.
7) The Licensee may not let or lease the software product.

4 Breach of contract, termination
1) MODERATIO GmbH may terminate the licence agreement with immediate effect to the extent that the Licensee breaches a provision of this contract in a manner which is not merely immaterial. In such an event, the Licensee shall return the software to MODERATIO GmbH and destroy any back-up copies.
2) MODERATIO GmbH shall hold the Licensee liable for any losses which occur owing to a breach of this contract by the Licensee.

5 Modifications and updates

1) MODERATIO GmbH may but is under no obligation to produce software updates.
2) MODERATIO GmbH may charge for such updates.
3) MODERATIO GmbH is under no obligation to supply software updates to licensees who have returned one or more previous updates or who have not paid the update charge.

6 Warranty and liability
1) MODERATIO GmbH provides a 12-month warranty from the time of handover that the functioning of the software is broadly consistent with the program description contained in the accompanying material (program descriptions and program help files). If the Licensee is a private individual within the meaning of the German Civil Code, the warranty period is two years.
2) MODERATIO GmbH points out that it is currently not possible to produce computer software which is completely error-free.
3) Any defect shall be reported in writing. The defect shall be described in sufficient detail (e.g. providing error messages) to permit an investigation of the defect and to rule out an operating error (e.g. description of the procedure used).
4) If the complaint is justified, the Licensee shall set MODERATIO GmbH a reasonable deadline for subsequent performance. The Licensee shall notify MODERATIO GmbH whether he/she wishes the subsequent performance to be rendered by improving the product supplied or by supplying a new non-defective product. MODERATIO GmbH may, however, refuse subsequent performance in the form requested by the Licensee if the costs which this involves for MODERATIO GmbH are disproportionate and if the alternative form of subsequent performance would not entail any significant disadvantage to the Licensee. MODERATIO GmbH may also refuse to render subsequent performance altogether if this is only possible at disproportionate cost to MODERATIO GmbH.
5) MODERATIO GmbH shall be entitled to two attempts to render subsequent performance for the same or a directly related defect within the deadline set by the Licensee. If both attempts are unsuccessful, the Licensee may withdraw from the contract or reduce the licence fee. The right to withdraw or to reduce the licence fee may be exercised after the first attempt at subsequent performance has failed if the Licensee cannot be reasonably expected to accept a second attempt within the deadline. If MODERATIO GmbH refuses to render subsequent performance subject to the above conditions, the Licensee shall be entitled immediately to a reduction in the licence fee or to withdraw from the contract. Withdrawal from the contract is not possible on the grounds of an immaterial defect.
6) If the user asserts warranty claims against MODERATIO GmbH and it transpires either that there is no defect or that the defect asserted is not covered by the warranty or that the Licensee has caused unnecessary expenses by not reporting the problem properly, the user shall indemnify MODERATIO GmbH for any expenses incurred to the extent that the user acted with gross negligence or intent in asserting the claim against MODERATIO GmbH.
7) There is no warranty for the software being suitable for the purpose contemplated by the user or for it being compatible with the user's existing software.
8) MODERATIO GmbH is not required to provide any manuals and documentation over and above the written material/program description supplied along with the software and the user guidance in the software itself and/or online help or any training unless this has been expressly agreed in writing. If the parties have entered into an agreement to this effect, such agreement does not cover the content, language or scope of any manual and/or documentation to be expressly supplied, and the provision of a brief user's guide is adequate, unless the parties have stipulated otherwise in writing.
9) In addition to the above warranty, MODERATIO GmbH shall be liable subject to statutory provisions only for intent and gross negligence for one year after the software has been supplied. In the event of slight negligence, MODERATIO GmbH shall only be liable if a material contractual duty (cardinal duty) has been breached or for default or impossibility. In the event of liability for slight negligence, this liability shall be limited
a) to foreseeable and/or typical losses and
b) to the actual purchase price paid. Responsibility for the choice of and the consequences of using the software and the intended or actual results shall lie with the Licensee. MODERATIO GmbH will not accept liability for any type of loss caused through use of the software or lack of familiarisation with the software, including without limitation losses from lost profit, from loss of business data or from other financial loss. This shall not affect liability for the absence of guaranteed attributes, intention to deceive, personal injury, defects in title or liability under the German Product Liability Act (Produkthaftungsgesetz) and the German Data Protection Act (Bundesdatenschutzgesetz). Any claims asserted against MODERATIO GmbH under the warranty or by reason of liability shall take reasonable account of contributory fault on the part of the user, including but not limited to insufficient error reporting or data back-up. Data back-up shall be deemed to be insufficient if the user has not taken adequate precautionary measures to provide protection against external influences, including but not limited to computer viruses and other phenomena which may endanger individual items of data or entire sets of data.
10) The buyer should settle all support requests, claims and warranty issues with his vender.

7 Miscellaneous
1) If the Licensee is a businessman, the place of jurisdiction for any disputes arising from this contract shall be Ingolstadt.
2) If individual provisions of this contract should be or become invalid in whole or in part, this shall not affect the validity of the other provisions. The parties agree to replace any legally invalid provision by a legally valid provision which most closely reflects the economic purpose originally intended. Any amendments to this contract shall be in writing. The same shall apply to any waiver of the written form requirement.

Pörnbach, March 2009

This translation should also state that the contract is subject to German law, that the language of the original contract is German and that in the event of a discrepancy between the German and the English versions the German version shall prevail.
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