1. Subject and entering into effect of the Agreement

1.1   The subject of the User Agreement is the provision of the „Embroidery Software“ V9 (hereinafter referred to as the „Software“) in perpetuity, in the version and scope provided by BERNINA AG, Seestrasse 161, 8266 Steckborn, Switzerland (hereinafter referred to as „Bernina“).
1.2   The user can either download the Software at https://www.bernina.com/embroidery-software-9-overview or purchase the program on a data carrier from an authorized dealer/third party and install it on their end device. To use the Software, the user requires a code card with an activation code, which can be purchased from an authorized dealer/third party.
1.3   By downloading or purchasing the Software, the user confirms that they agree to these Terms of Use. The same shall apply if the user uses, installs, copies or accesses the Software.
1.4 If the user does not agree to the Terms of Use, they must refrain from using, installing or reproducing the Software in any way.

2. Rights of use, technical requirements

2.1   The user shall receive the simple, non-exclusive right to install and use the Software in perpetuity, in accordance with these Terms of Use. Permitted use shall include the installation of the contractual software, loading it into the memory and utilization by the user as intended. Under no circumstances shall the user have the right to lease or otherwise sub-license the purchased contractual software, to publicly reproduce it or make it accessible by wire or wireless means, or to make it available to third parties for a fee or free of charge, e.g. by way of 'application service providing' or as „software as a service“. Item 2.6 shall remain unaffected.
2.2   The user shall receive the right to reproduce the Software insofar as the respective reproduction is necessary for the use of the Software by the user (e.g. downloading, installing the Software on the PC, loading the Software). The user shall not be entitled to perform reverse engineering (re-engineering) of the Software or to use the Software in a way contrary to the subject of this Agreement, and must refrain from doing so.
2.3   All rights to the Software,– with the exception of the rights of use granted by these Terms of Use, shall be the exclusive property of Bernina and the respective licensors of Bernina. The Software and the rights to it shall be protected by copyright and international agreements on the protection of intellectual property.
2.4   The user may make a copy of the Software for backup purposes, provided that the end device on which the backup copy is stored is owned by or is under the exclusive power of disposal of the user.
2.5   The user may only edit the Software, and in particular make amendments or additions, insofar as this is expressly permitted by mandatory laws. Copyright notices, serial numbers, version numbers, trademarks or other identifying features of the Software must not be changed or removed by the user under any circumstances. The same shall apply to the suppression of the screen display of corresponding features.
2.6   The user shall be entitled to permanently transfer the purchased copy of the contractual software to a third party by handing over the activation code. In this case, they shall completely cease using the program, remove all installed copies of the program from their computers and delete all copies on other data carriers, provided that they are not legally obligated to retain them for a longer period. At Bernina's request, the customer shall confirm in writing that the aforementioned measures have been carried out in full or, where applicable, explain the reasons for retaining any copies for a longer period. Furthermore, the user shall expressly agree with the third party that they shall observe the extent to which rights have been granted in accordance with this Item 2 .
2.7   The user themselves shall be responsible for checking and ensuring the suitability of the end device intended by them for the installation of the Software with regard to the technical requirements.
Unauthorized copying or falsification of the product, or failure to comply with the above restrictions, shall automatically cause this License Agreement to be terminated, and shall leave BERNINA and/or Wilcom International Pty Ltd free to pursue other means of legal redress.

3. Commercial use of embroidery motifs

3.1   With the purchase of BERNINA® Embroidery Software, BERNINA International AG grants the user the right to commercial use of all included embroidery designs (e.g. for sales, advertising, etc.), provided that the embroidery motif is embroidered on a fabric (or similar). This shall include all integrated embroidery fonts, but shall exclude all TrueType fonts and trademarks in general, especially those of BERNINA International AG.
3.2   The commercial use of embroidery motifs from BERNINA® Embroidery Software as files in digital form (i.e. the individual sale of included embroidery motifs) shall not be permitted unless the design file as such has been significantly modified. Significantly means an obvious change compared to the original embroidery motif. Users who use CorelDRAW® shall also be subject to the End User License Agreement, which can be found at "About CorelDRAW".

4. Scope of services

4.1   Bernina shall provide the user with the technical possibility of using and the entitlement to use the functionalities of the Software within the framework of these Terms of Use–, but only within the framework and scope of whichever program version is either available from Bernina at https://www.bernina.com/V9 or sold on data carriers.
4.2   The range of functions of the Software is described in the user manual (hereinafter referred to as the „User Manual“). The details in the User Manual shall not constitute information on the quality of the Software.

5. Warranty

5.1   The statutory warranty rules shall apply.
5.2   The warranty and liability for material defects shall be excluded if the user fails to comply with the technical regulations or instructions for use for the Software determined by Bernina in accordance with the Agreement entered into or with any technical regulations or instructions for use specified in this regard, in particular those in the User Manual, and if the defect or damage to the user is consequently due to this.

6. Liability

6.1   Subject to the following exceptions, Bernina shall not be liable in the event of a breach of duties arising from the contractual obligation. In particular, Bernina shall not be liable for claims by the user for compensation or reimbursement of expenses, irrespective of the legal grounds.
6.2   The above limitation of liability in accordance with Item 6.1 shall not apply

• to your own intentional or grossly negligent breach of duty, or intentional or grossly negligent breach of duty by legal representatives or vicarious agents;
• to the breach of essential contractual obligations; „Essential Contractual Obligations“ are obligations on which the fulfillment of the Agreement is determined and on which the user may rely“;
• in the event of injury to life, limb or health, including by legal representatives or vicarious agents;
• in the event of default, insofar as a fixed delivery and/or fixed performance date was agreed;
• insofar as Bernina has undertaken to guarantee the quality of a product or the success of a performance, or a procurement risk within the meaning of § 276 of the German Civil Code (BGB);
• in the event of liability under the German Product Liability Act or other mandatory statutory liability.

6.3   In the event that Bernina or its vicarious agents are only guilty of slight negligence and there is no case of the above Item 6.2 (indents 3, 5 and 6), Bernina shall only be liable for foreseeable losses typical for the Agreement, even in the event of a breach of Essential Contractual Obligations.
6.4   The limitations of liability in accordance with the above Items 6.1 to 6.4 shall apply to the same extent in favor of Bernina's executive bodies and managerial and non-managerial employees, as well as other vicarious agents and sub-contractors.
6.5   A reversal of the burden of proof is not associated with the above provisions.

7. Amendments

In the event of changes in the law, changes in jurisdiction or changes in economic circumstances affecting the services provided by Bernina that form the subject of this Agreement, Bernina shall reserve the right to amend these Terms of Use in accordance with the following regulation in relation to the Agreement with the user at its reasonable discretion (§ 315 of the German Civil Code). This shall be the case provided that this does not change any content of the Agreement that is essential to equivalence between the parties (relationship between performance and compensation), and that the amendment is reasonable for the user.

8. Amendments and additions/Applicable law/Place of jurisdiction

8.1   Amendments and additions to these conditions must be provided in writing. § 305b of the German Civil Code (priority of individually agreed terms) shall remain unaffected for individual agreements in any form.
8.2   This Agreement shall be governed exclusively by German law, excluding the UN Convention on Contracts for the International Sale of Goods (CSIG). If the user is a merchant within the meaning of the German Commercial Code, a legal person under public law or a special asset under public law, or if the user has no general place of jurisdiction in the Federal Republic of Germany, the registered office of Bernina shall be agreed as the exclusive place of jurisdiction.