§ 1 Contents of Contract
This contract governs:
(1) CyberGhost software
(2) providing of access
(3) concealing IP addresses from third parties
(4) the virtual storage area as indicated in product description (for premium subscribers)
(5) the terms of the Free und Beta User versions.
The following General Business Terms for the CyberGhost VPN service contain the general conditions governing the contractual relationship between the Customer and CYBERGHOST Additional conditions for premium services can be found in the order form. The Customer may select certain parameters of the contractual relationship there.
§ 2 Protective Clauses
(1) Protective Clauses
To the extent the Customer also uses General Business Terms, the contract shall also be concluded without an express agreement about the inclusion of General Business Terms. Insofar as the contents of the various General Business Terms correspond, these are deemed as agreed. Contradictory regulations shall be replaced by the regulations of optional law. The same shall apply in the event that the business terms of the Customer contain regulations that are not included within the framework of these business terms. These business terms shall apply if these business terms contain regulations that are not included in the business terms of the Customer.
(a) Virtual Private Network (VPN)
VPN refers to a private network entered via public access points (like the Internet). A VPN consists of at least two systems connected by a tunnel.
Anonymization refers to the concealment of IP addresses that users receive from their Internet Service Provider. This usually occurs through proxy servers. The Web servers (i.e., Websites) visited by proxy server users only see the IP address of the proxy server.
TCP/IP stands for Transmission Control Protocol/Internet Protocol. It is also referred to as TC/IP. It is a network protocol governing data transmission between different computer systems, especially in the Internet.
Client refers to a computer program that connects to a server with which it exchanges data according to the client server system.
A UCP, or User Control Panel, is a feature of a piece of software or account administration that allows users to change settings or view usage statistics.
§ 3 Subject Matter of Contract
(1) CYBERGHOST shall act in the capacity of an Internet service provider. In addition, it shall conceal Customer data so that third parties only see the Internet address of the CYBERGHOST server. These services are offered to Customers for free in the Free and Beta User versions. The premium versions, as well as those sold in retail stores, charge a fee for these services.
(2) The parties shall agree that the access providing services are "services" according to the law. CYBERGHOST shall therefore be liable for inadequate fulfillment of its services or for an inadequate selection of persons used to perform its obligations, insofar as CYBERGHOST can influence said selection. Strict liability applies only in those cases in which it is expressly assumed by CYBERGHOST.
(3) The average availability of server connections is based on information in the order form or visible on the package. Availability is fulfilled when the availability times in the order form or product description are fulfilled. Availability data covers a 30-day period.
(4) CYBERGHOST dose not guarantee 100% connection availability. CyberGhost S.R.L. is not responsible for any prejudices caused by disconnections or service interruptions, as well as for prejudices brought on other parties by the users of the service.
(5) The technical services are based on the terms stipulated in the order form or the product description.
(6) The maximum transferable volume (i.e., the amount of data that can be transferred by CyberGhost) is given in the order form or, for retail-store purchases, on the product package.
(7) The Customer may use CyberGhost software at no charge. The right of use shall be transferred to the Customer once and for all. The Customer may keep the software even if he or she no longer use the provider services of CYBERGHOST.
(8) The services stipulated by these Terms can only be warranted when used with the system environment described in the order form or on the package.
§ 4 Payment
The free and beta packages carry no charges. The terms in paragraphs 2 through 14 therefore do not apply to these offerings.
For Customers who acquire their package in some other way than at the CYBERGHOST Internet shop via download, product payment is included in the package price for the duration stipulated within.
For Customers who acquire the premium package at the CYBERGHOST Internet shop, product reimbursement amount is stated in the order form. The duration of use is based on the Customer's selection in the order form.
All prices are gross prices. For the premium package, payments must be completed in advanced.
The costs for third-party services (e.g., DeutschenTelekom AG or other carriers) are not a part of this contract. Costs for Internet access are not included.
Access provision begins with the activation of the Customer account.
The Customer may only demand compensation for claims arising from this contract that are legally binding or recognized by CYBERGHOST.
Objections to bill totals must be made in writing within three months of service activation. The address for bill disputes can be found under the "Imprint" section of the CYBERGHOST Website at www.cyberghostvpn.com. If the Customer acquired the product in a retail store, objections must be made within two months of the date that begins the appointed billing period.
Instead of a bill as proof of service, the Customer shall receive access to the UCP. The Customer can save the data stored in the UCP as a download. The data stored in the UCP will be deleted two months after the end of the billing period it represents. Regardless of the length of contract, a billing period lasts 30 days.
CYBERGHOST makes express reference to the consequences of missing a term. The right of the Customer to demand the explanation of payment charges remains unaffected.
The Customer is also obligated to pay the use charge arising from authorized or unauthorized access usage by third parties, unless the Customer is not responsible for this usage. The Customer is obligated to demonstrate that he or she is not responsible for this usage.
CYBERGHOST will record the connection data required for the bill after each connection. Other connection data will be immediately deleted. The data will be stored as evidence for two months after the billing period expires, unless the user exercises one of the options described in the following paragraph. Should the Customer raise objections to the charges billed to him or her, the connection data will be stored until the matter has been completely clarified.
The Customer can demand that connection data be completely stored or that they be completely erased at the end of a billing period. The Customer can also choose another interval of deletion. The Customer must confirm this choice expressly on the order form. Should the Customer decide for the complete deletion of connection data, CYBERGHOST shall make express reference in the UCP that doing so relieves it from supplying evidence for the correctness of the bill.
In the event of payment arrears despite setting a time limit with threat of rejection, CYBERGHOST is authorized to terminate the contract without notice. In this case, the Premium Service may no longer be used from this point onward.
§ 5 Cancellation Policy
(1) The Customer has a two-week period in which he or she can cancel the contract without providing reasons. Termination must be in text form (letter, fax, email). The two-week period begins when the contract is concluded and the Customer has received the software and this information. Cancellation must be postmarked within the two-week period.
Cancellations may be sent to:
Sos. Nicolae Titulescu Nr. 1,
Bl A7, SC 4, Et 2, Apt 99, Sector 1,
Written cancellations should be sent to the above address.
Faxes should be sent to +40 (0)31 10 10 145
Email should be sent to firstname.lastname@example.org.
Other addresses can be found at www.cyberghostvpn.com under "Contact."
(2) In the event of an effective cancellation, each party must return any payments or services it has received and, if applicable, surrender usages laid claim to.
The Customer's right to cancellation ends prematurely if CYBERGHOST has begun service performance before the end of the cancellation period or if the Customer has brought this about. Usually this means that if you install software, create anonymized access to the Internet via an CYBERGHOST server, or register with our server before the end of the 14-day cancellation period, you nullify your right to cancellation.
The Customer has no right to cancellation if product is purchased in a retail store.
§ 6 Liability / Data Protection
The following applies to all Customers:
(1) The access provision is carried out in accordance with service fulfillment law. CYBERGHOST shall therefore be liable for inadequate fulfillment of its services or for an inadequate selection of persons used to perform its obligations, insofar as CYBERGHOST can influence said selection. Strict liability applies only in those cases in which strict liability is expressly assumed by CYBERGHOST.
(2) Should CYBERGHOST not be responsible for its failure to fulfill, or adequately fulfill, the service obligated in the contract, each party may cancel the contract after a period of six weeks. CYBERGHOST shall not be held responsible in the event of a force majeure for which CYBERGHOST is not the cause, in particular: thunder storms, electrical damage, water damage, theft, vandalism, or other environmental catastrophe, lockout, or strike.
For every service, the Customer must ensure the protection of his or her own data. This means backing up all computer data at regular intervals. Damage claims against CYBERGHOST are limited to damage that would have arisen through the proper fulfillment of this duty on the part of the Customer.
The following applies to Premium Service Customers:
CYBERGHOST is liable for pay-for services according to the reason and amount pursuant to legal regulations, with the exceptions stipulated in paragraph 5 and the following lines (a) and (b):
(a) Though the Customer is able to save content on the Web server, he or she is obligated to save data on the local computer after using the service.
(b) CYBERGHOST is liable for the amount of damage that would have arisen if the Customer had fulfilled the duty to protect his or her data, as stipulated in line (a) above.
The following applies to Customers who use the Beta User and Free no-charge services:
CYBERGHOST is liable during the test phase only in cases of malice or gross negligence. This does not apply to cases involving claims resulting from damages to body, life, or health or the violation of warranties. Claims arising from the product liability law shall remain unaffected. The exclusion or limitation of liability on the part of CYBERGHOST also extends to the personal liability of the manufacturer's entities, employees, representations, and persons who perform its obligations.
The following applies exclusively to the transfer of software:
Liability and warranty for the transfer of software shall follow the legal regulations regarding free software pursuant to the exceptions given in §7 5 para.1-3.
§ 7 Duties to Cooperate
(1) The duties named in the order form and its appendices are major terms. Insofar as the Customer does not fulfill these duties in accordance with this contract, CYBERGHOST is not obligated to provide service and can terminate the contract after issuing a warning.
(2) Reports of problems from the Customer must contain the following information:
- customer name
- account name
- description of the problem (sporadic or regular)
- performance impairment (bandwidth, lapses, etc.)
§ 8 Period of Validity
(1) The contract for the Premium Service will be valid for at least the period given in the order form. For packages acquired in retail stores, the normal period of validity is stated on the product package. The period of validity of Free Service is unlimited in time. CYBERGHOST may cancel the Free and Beta User contracts at any time without giving reasons. In this event, the Customer shall be informed accordingly.
(2) The beginning of mutual performance obligation begins with service activation and ends with the lapse of time.
(3) This does not affect the right of extraordinary termination for an important reason. Important reasons include in particular those cases when the user fails to fulfill his or her contractual duties and the CYBERGHOST cannot be expected to wait for the cancellation period to end.
§ 9 Miscellaneous Provisions
(1) If individual clauses of these General Business Terms should be or become void, these terms and other supplementary agreements shall remain unaffected.
(2) All agreements that involve a change, addition, or specification of these contract terms, as well as special warranty promises or agreements, must be in writing. Agreements declared by representatives or auxiliary persons of CYBERGHOST are only binding to the extent that CYBERGHOST management agrees to them in writing.
(3) The parties agree to the application of the law of Romania- excluding UN sales law-as regards all legal relations arising from this contract.
(4) All disputes arising under or in connection with this contract shall be submitted exclusively to the jurisdiction of the courts in Bucharest, Romania, to the extent that the Customer is a commercial entity in accordance with the commercial code or a public law corporation, or a public law fund or trust.
(5) Jurisdiction is the Customer's domicile to the extent that the Customer is a private individual. If the Customer moves his or her domicile outside Romania, CYBERGHOST is entitled to take legal action against the Customer in the jurisdiction governing the Customer's last known domicile in Romania.
§ 10 Transfer of Software
(1) CYBERGHOST gives away its CyberGhost software for free. CyberGhost software is necessary to fulfill the service governed in this contract. The transfer of rights of use follows in accordance with the CYBERGHOST's EULA (End User License Agreement). The modifications of CYBERGHOST's EULA appearing under paragraph 15 apply to Customers who use the Beta User Service.
(2) The Customer is responsible for taking the necessary steps to employ the software.
§ 11 CYBERGHOST Obligations
(1) CYBERGHOST is obligated to provide the Customer access to the Internet via a functioning gateway for the transmission of data to and from the Internet. Information about interruption-free availability is stated in the order form or on the package description.
(2) The maximum volume available per month depends on the offer used.
CYBERGHOST is obligated to ensure the proper transmission of data to the Internet (sending) and to the Customer (receiving). CYBERGHOST is not liable for the availability of other networks targeted by the Customer.
CYBERGHOST shall provide the Customer the data (serial numbers) necessary for Internet access. Access data such as password and user name shall be determined by the Customer during access setup.
CYBERGHOST is not responsible for the function and performance of transfer systems on the part of the user. Nor is CYBERGHOST responsible for the performance of third-party transfer systems that, due to the nature of the Internet, participate in the transfer of data but are not selected by CYBERGHOST and whose content CYBERGHOST has no influence on.
§ 12 Customer Obligations
(1) The Customer is obligated to transfer data in conformance with the TCP/IP Internet protocol. The Customer may only use the standard accepted gateways or those stipulated by CYBERGHOST Deviations require written permission.
(2) The Customer is obligated is keep access data given to him or her from unauthorized third parties. Data must be stored in a place that cannot be accessed by unauthorized third parties, thus preventing access misuse by third parties. The user password shall be changed at regular intervals. Third parties that use the Internet connection of the Customer with his or her knowledge and consent are not permitted to alter user passwords.
(3) The Customer shall not misuse the service to perform criminal acts, which include but are not limited to offences against sexual self-determination, planning or calling for violent acts, violations of intellectual property laws, fraud, defamation, insult, computer crimes, or other criminal activities.
(4) The Customer promises to release CYBERGHOST from all liability claims from third parties or caused by criminal prosecutions or investigations or the enforcement of injunction claims. In the event of all such claims, the Customer promises to pay CYBERGHOST an amount of 1,500.00 Euro for damages. The Customer is free to demonstrate that CYBERGHOST has incurred less damage, and CYBERGHOST is free to claim all damage that exceeds that amount.
(5) In the event that third parties enforce an injunction on service against CYBERGHOST because the Customer performed activities with the service that triggered injunction claims, CYBERGHOST shall immediately forbid the Customer from using the service and block his or her access.
(6) In case Customer access has been blocked, the Customer has no right to demand a refund of previously paid charges. The Customer can compensate the third party that enforced the injunction claims. The Customer reserves the right to submit an extraordinary notice of cancellation for the subscription months that follow the subscription month already paid for.
(7) The Customer is obligated to inform CYBERGHOST if the dispute with the third party is resolved or if the third party does not enforce injunction claims or if state proceedings found that the Customer's use of the service did not violate the law. Should the Customer demand to continue service before such a clarification has taken place, CYBERGHOST can make service usage incumbent upon a money deposit with a government-recognized office. The amount of this deposit shall be in accordance with the appropriate consequences of legal prosecution.
§ 13 Privacy
(1) The Customer accepts that CYBERGHOST records, processes, and uses data as required of it by law.
(2) CYBERGHOST may record, process, and use personal data (inventory data) to fulfill the terms of this contract. This data includes name, address, and telephone of the Customer or his or her end Customers as well as bank account information required for direct debiting. The Customer reserves the right to inform him- or herself about the extent and content of the personal data stored.
(3) Also, CYBERGHOST may process and use personal data collected in the setup and delivery of service (connection data). This includes Customer identification and data regarding time and volume of use.
(4) CYBERGHOST stores a completely anonymous user ID, made out of numbers, as well as the data volume generated throughout a day through this ID, with an afferent timestamp.
§ 14 Anonymization
(1) CYBERGHOST "anonymizes" the Customer's identity so that third-party Internet users, e.g., Website operators, only see the IP address of the CYBERGHOST proxy server. Visible to CYBERGHOST are Customer ID, date and time of use, and transfer volumes.
Special Terms for Beta Users
§ 15 Evaluation License / Right of Use
The following terms apply only to test phase users. These terms differ from CYBERGHOST's EULA in the following points:
(1) The Customer shall receive a simple right of use for the software, unlimited in terms of place but restricted to the duration of the test period. This right only includes the license to load and use the program. No other right of use is thereby conferred.
(2) Without previous written consent from CYBERGHOST, the Customer shall not be authorized to transfer right of use to third parties or to grant equivalent rights of use.
(3) The Customer promises not to disclose software and documentation to third parties, either in their original form or as copies, without the express written consent of the manufacturer.
(4) The duration of the right of use is apparent from the offering.
(5) The transfer of right of use shall allow the Customer to test the program for a limited period of time.
(6) After this limited period of time expires, the Customer is obligated to delete the test version and all copies immediately, unless the Customer has already acquired at this time an extended right of use for this software.
(7) CYBERGHOST may extend right of use at any time, and it may terminate right of use before the end of the period stipulated in the offering.
SOFTWARE END-USER LICENSE AGREEMENT
THIS AGREEMENT GIVES YOU A LICENSE TO USE THE SOFTWARE. ITS TERMS AND CONDITIONS ALSO INCLUDE WARRANTY INFORMATION AND DISCLAIMERS. THIS AGREEMENT (or "EULA") IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS SOFTWARE ("YOU" OR "CUSTOMER") AND CYBERGHOST. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. BY INSTALLING AND/OR USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, OR DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THESE TERMS, THEN CLICK "CANCEL" AND DO NOT INSTALL AND/OR USE THE SOFTWARE AND RETURN THE SOFTWARE TO YOUR PLACE OF PURCHASE FOR A FULL REFUND IN ACCORDANCE WITH ITS REFUND POLICIES. THIS EULA SHALL APPLY ONLY TO THE SOFTWARE SUPPLIED BY CYBERGHOST HEREWITH REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN.
(a) "Education Version" means a version of the Software, so identified, for use by students and faculty of educational institutions, only.
(b) "Not For Resale (NFR) Version" means a version, so identified, of the Software to be used to review and evaluate the Software, only.
(c) "CYBERGHOST" means CYBERGHOST SRL, Romania and its licensors, if any.
(d) "Software" means only the CYBERGHOST software program(s) and third party software programs, in each case, supplied by CYBERGHOST herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation.
(e) "Trial Version" means a version of the Software, so identified, to be used only to review, demonstrate and evaluate the Software for a limited time period. The Trial Version may have limited features, may lack the ability for the end-user to save the end product, and will cease operating after a predetermined amount of time due to an internal mechanism within the Trial Version.
2. License Grants
(a) You may install and use the Software on a single computer; OR install and store the Software on a storage device, such as a network server, used only to install the Software on your other computers over an internal network, provided you have a license for each separate computer on which the Software is installed and run. A license for the Software may not be shared, installed or used concurrently on different computers.
(b) In the event the Software is distributed along with other CYBERGHOST software products as part of a suite of products, the license of the suite is licensed as a single product and none of the products in the suite, including the Software, may be separated for installation or use on more than one computer.
(c) You may make one copy of the Software in machine-readable form solely for backup purposes. You must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software.
(d) Education Versions may not be used for, or distributed to any party for, any commercial purpose.
(e) You agree that CYBERGHOST may audit your use of the Software for compliance with these terms at any time, upon reasonable notice.
(f) Your license rights under this EULA are non-exclusive.
3. License Restrictions
(a) Other than as set forth in Section 2, you may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network.
(b) You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.
(c) Unless otherwise provided herein, you may not rent, lease, or sublicense the Software.
(d) Other than with respect to a Trial Version or a Not For Resale Version of the Software, you may permanently transfer all of your rights under this EULA only as part of a sale or transfer, provided you retain no copies, you transfer all of the Software (including all component parts, the media and printed materials, any upgrades, all platforms, this EULA, the serial numbers, and, if applicable, all other software products provided together with the Software), and the recipient agrees to the terms of this EULA. If the Software is an upgrade, you must transfer all previous versions to which the upgrade relates. You may not sell or transfer any Software purchased under a volume discount. You may not sell or transfer any Software purchased under a volume discount. You may not sell or transfer any Trial Version or Not For Resale Version of the Software. If the copy of the Software is licensed as part of the whole suite (as defined above), the Software shall be transferred only with and as part of the sale or transfer of the whole suite and not separately.
(e) Unless otherwise provided herein, you may not modify the Software or create derivative works based upon the Software.
(f) Unless otherwise provided herein, you shall not (i) in the aggregate, install or use more than one copy of the Trial Version of the Software, (ii) download the Trial Version of the Software under more than one username, (iii) alter the contents of a hard drive or computer system to enable the use of the Trial Version of the Software for an aggregate period in excess of the trial period for one license to such Trial Version, and (iv) use the Trial Version of the Software for a purpose other than the sole purpose of determining whether to purchase a license to a commercial or education version of the software; however, notwithstanding the foregoing, you are strictly prohibited from installing or using the Trial Version of the Software for any commercial training purpose.
(g) You may only use the Not for Resale Version of the Software to review and evaluate the Software.
(h) You agree that you will not export or re-export the Software (or portions thereof) to any country, person or entity subject to U.S. export restrictions. You specifically agree not to export or re-export the Software (or portions thereof): (i) to any country subject to a U.S. embargo or trade restriction; (ii) to any person or entity who you know or have reason to know will utilize the Software (or portions thereof) in the production of nuclear, chemical or biological weapons; or (iii) to any person or entity who has been denied export privileges by the U.S. government.
(i) You may receive the Software in more than one medium but you shall only install or use one medium. Regardless of the number of media you receive, you may use only the medium that is appropriate for the server or computer on which the Software is to be installed.
(j) In the event that you fail to comply with this EULA, CYBERGHOST may terminate the license and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination).
If this copy of the Software is an upgrade from an earlier version of the Software, you must possess a valid full license to a copy of an earlier version of the Software used to upgrade to this upgrade copy in order to install and/or use this upgrade copy, and the upgrade copy is provided to you on a license exchange basis. You agree by your installation and use of such copy of the Software to voluntarily terminate your earlier EULA and uninstall, destroy and cease using the earlier version of the Software or transfer it to another person or entity, unless you also transfer this upgrade copy and any copies thereof to such other party in accordance with Section 3.
5. Prior Same Version License and Exchanges
If this copy of the Software is licensed as part of the suite (as defined above), and you have a prior license to the same version of the Software, and the suite was licensed to you with a discount based, in whole or in part, on your prior license to the same version, the Software is provided to you on a license exchange basis. You agree by your installation and use of this copy of the Software to voluntarily terminate your EULA with respect to such prior license and that you will not continue to install or use such prior license of the Software or transfer it to another person or entity.
The foregoing license gives you limited license to use the Software. CYBERGHOST and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any application you may develop), and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by CYBERGHOST and its suppliers.
7. LIMITED WARRANTY AND DISCLAIMER
(a) Except with respect to the Trial Version and Not For Resale Version of the Software, CYBERGHOST warrants that, for a period of sixty (60) days from the date of delivery (as evidenced by a copy of your receipt), the physical media on which the Software is furnished will be free from defects in materials and workmanship that significantly reduce their utility for the purposes stipulated in the General Business Terms. In the event of the product does not comply with this warranty, your exclusive remedy shall be, at CYBERGHOST's option, a replacement copy of the Software or a refund of the purchase price, provided you submit a copy of your receipt and the defective product to CYBERGHOST within the period of warranty. CYBERGHOST does not guarantee that the Software will meet your needs, is error free, or will operate without interruption.
(b) CYBERGHOST PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR ANY SAMPLE APPLICATION CODE, TRIAL VERSION AND THE NOT FOR RESALE VERSION OF THE SOFTWARE. ANY SAMPLE APPLICATION CODE, TRIAL VERSION AND THE NOT FOR RESALE VERSION OF THE SOFTWARE ARE PROVIDED "AS IS".
(c) EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO SOFTWARE OTHER THAN ANY TRIAL VERSION AND NOT FOR RESALE VERSION, CYBERGHOST AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. CYBERGHOST DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. CYBERGHOST SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
(e) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CYBERGHOST, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
(f) SOME STATES, INCLUDING THE MEMBERS OF THE EUROPEAN UNION, DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
8. Exclusive Remedy
Your exclusive remedy under the preceding is to return the Software to the place you acquired it, with a copy of your receipt and a description of the problem. Provided that any non-compliance with the above warranty is reported in writing to CYBERGHOST no more than sixty (60) days following delivery to you, CYBERGHOST will use reasonable commercial efforts to supply you with a replacement copy of the Software that substantially conforms to the documentation, provide a replacement for defective media, or refund to you your purchase price for the Software, at its option. CYBERGHOST shall have no responsibility if the Software has been altered in any way, if the media has been damaged by misuse, accident, abuse, modification or misapplication, or if the failure arises out of use of the Software with other than a recommended hardware configuration. Any such misuse, accident, abuse, modification or misapplication of the Software will void the warranty above. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION.
9. LIMITATION OF LIABILITY
(a) NEITHER CYBERGHOST NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF CYBERGHOST OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) CYBERGHOST'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE.
(c) SOME STATES, INCLUDING THOSE OF THE EUROPEAN UNION, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS DEPENDING ON YOUR COUNTRY.
(d) THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA.
10. Basis of Bargain
The Limited Warranty and Disclaimer, Exclusive Remedies, and Limited Liability set forth above are fundamental elements of the basis of the agreement between CYBERGHOST and you. CYBERGHOST would not be able to provide the Software on an economic basis without such limitations. Such Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability inure to the benefit of CYBERGHOST's licensors.
11. Consumer End Users Only
The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of an end-user, i.e., a person acquiring goods otherwise than in the course of a business.
The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
This EULA shall be governed by the laws of Romania, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the municipal courts sitting in Bucharest, Romania to resolve any disputes arising under this EULA. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. The failure or delay of CYBERGHOST to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.
No CYBERGHOST dealer, agent or employee is authorized to make any amendment to this EULA.
If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect.
All questions concerning this EULA shall be directed to: CyberGhost S.R.L., 169A Calea Floreasca, Building A, 4th Floor, 2082Campus2, Sector 1, 014472 Bucharest, Romania.
CYBERGHOST and other trademarks contained in the Software are trademarks or registered trademarks of CYBERGHOST SRL in Romania. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to use CYBERGHOST's or its licensors' names or any of their respective trademarks.
The General Business Terms assume that the laws of Romania apply. It is possible that the regulations of the national legal system to which you are subject forbid or restrict the use of CyberGhost. Before acquiring this product, please inform yourself whether the national laws to which you are subject permit its use and/or invalidate specific terms of this contract. In no case shall CYBERGHOST be responsible for unrestricted usability of the program or feasibility of the contract under national laws other than those of Romania.