GENERAL SOFTWARE LICENCE TERMS AND CONDITIONS of Fritz & Macziol GmbH Current as of March 2014

Transcription

1 GENERAL SOFTWARE LICENCE TERMS AND CONDITIONS of Fritz & Macziol GmbH Current as of March 2014 Section 1 Preamble The following software licence terms and conditions stipulate the extent of the rights of use as well as in addition the rights and duties of the contractual parties with respect to software. They are agreed even without explicit approval of the customer when making use of the service, in particular when downloading the programme or an upgrade, updates or patches. Licence terms and conditions of the customer do not apply even if F&M does not explicitly contradict to them and carries out the service and/or provides the software. Deviations from and additions to the present terms and conditions shall take effect only with explicit written confirmation. Agreements with respect to individual contract take priority in any case. Section 2 Subject Matter of the Granting of Rights The licensee acquires from F&M software and the associated application documentation. Precise description of the software shall be taken from the specification of services. For software of other manufacturers than the licenser, in addition to the provisions of the present software license terms and conditions, the software license terms and conditions of the manufacturer shall apply which, in the event of deviations, in any case take priority over the present software license terms and conditions. The source code of the software is not part of the subject matter of the contract. Section 3 Extent of the Right of Use a) F&M grants to the licensee a simple right unlimited in time and place for use of the subject matter pursuant to Section 2 in accordance with following terms and conditions. b) In particular computer centre operations for third parties or temporary provision of the software (e.g. as Application Service Providing) for other companies or use of the software for training of individuals, who are not employees of the licensee or affiliated companies, are admissible only upon prior written approval of F&M. Commercial subletting is generally prohibited. All rights of use not explicitly transferred, in particular sale, letting, rental, leasing, translation or publication shall remain with F&M. The licensee shall be entitled to have the software operated by third parties. Also in such cases, use of the software remains limited to the licensee. The licensee will bind third parties to make sure that unauthorised third parties will have no access to the software. c) Reproductions of the software are admissible only insofar as this is required for contractual use. The licensee is permitted to reproduce the software for backup copies pursuant to the state of the art and to the extent required. d) If F&M provides to the licensee within the scope of rework or maintenance additions (e.g. upgrades, updates, patches, application documentation) replacing previously provided subject matter of the contract ("old software"), these are likewise subject to the present terms and conditions.

2 e) Reproduction for third parties or adaptation of the application documentation is - subject to Section 4 (insofar as the documentation is integrated into the software) - not permitted. f) The granting of rights occurs under the condition precedent of entire purchase price payment. Section 4 Transfer and Modifications of the Software a) The licensee shall be allowed to transfer the subject matter of the contract to a third party only uniformly and by entire and final abandonment of own use of the subject matter of the contract. Temporary or partial transfer against payment of the use to third parties is prohibited irrespective of whether the subject matter is transferred in material or immaterial form. The same applies in the event of transfer free of charge. b) Transfer of the subject matter of contract requires written approval of F&M. F&M grants approval, if (i) the licensee confirms in writing to F&M that it has transferred all original copies of the subject matter of contract to the third party, and has deleted all copies prepared by itself, and (ii) the third party grants approval in writing to F&M with the terms and conditions of use and transfer agreed upon herein. c) Generally, the licensee is not entitled to make any modifications of whatever kind to the software without prior approval of F&M. It is authorised to make any modifications, extensions and other adaptations of the software within the meaning of Section 69 c no. 2 UrhG [German Copyright Act] only insofar as these are permitted indispensably by the law. But F&M points out to the licensee that already minor intervention in the software might result into considerable and unforeseeable malfunctions in the operation of the software, and possibly of the system environment for which the licensee shall bear the exclusive risk. d) The licensee shall be entitled to decompiling of the software and to reverse engineering only within the limits of Section 69 e UrhG, and only, if F&M after written request with adequate delay granted did not provide the necessary data and/or information. Section 5 Protection of Software and Application Documentation a) Insofar as the licensee has not explicitly been granted rights in accordance with the present terms and conditions, exclusively F&M shall be entitled to all rights of the subject matter of contract (and all copies made by the licensee), in particular the copyright, the rights to or in inventions as well as technical property rights. The same applies also to processing of the subject matter of contract by F&M. The ownership of the licensee regarding the respective data carriers of such copies remains unaffected. b) The licensee is not entitled to remove or circumvent the existing protective mechanism against unwarranted use. c) The licensee is obliged to prevent unauthorised third party access of the software as well as the documentation by appropriate measures. If necessary, the licensee must keep the original data carriers supplied and the backup copy at a place secured against unauthorised third party access. The licensee's employees must be urged to comply with the delivery terms and conditions and copyright provisions. 2

3 Section 6 Excessive Use The licensee shall be entitled to use of the software exceeding the right of use granted only after prior written approval of F&M. F&M reserves the right to integrate mechanisms into or in connection with the software in order to reproduce the use in accordance with the agreed upon parameters once per year. The assistance by the licensee required within the scope of measurement is completely paid off with the licence fee. In the event of excessive use without approval (in particular in the event of simultaneous use of a larger number of users and/or devices or functions as agreed upon), F&M shall be entitled to charge the amount incurred for excessive use in accordance with the F&M price list valid at that time. Further damage claims remain unaffected. Section 7 Termination of Right of Use of the Subject Matter of Contract In all cases of termination of its right of use (e.g. by withdrawal), the licensee promptly surrenders all supplies of the subject matter of contract, and deletes all copies insofar as it is not legally obligated to prolonged storage. Upon request by F&M, the licensee will submit a declaration on deletion. Section 8 Rights of Control F&M is entitled to control the software provided for the licensee including installation pursuant to the F&M standard procedure. The inspections take place at the licensee. F&M shall be allowed to check to a reasonable extent during business and office hours of the licensee proper use of the software in accordance with the present software license terms and conditions and, if applicable, further agreements. The licensee must tolerate one inspection per year free of charge. Section 9 Duties to co-operate and to provide Information a) The licensee has informed itself on major functional features of the software and prior to contract conclusion has taken advice from employees of F&M and/or competent third parties. b) Installation of a working hardware and software environment - also sufficiently dimensioned taking into account the additional load by the subject matter of contract - is the responsibility of the licensee. c) With respect to all supplies and services of the seller in performing the present contract, the licensee assumes a duty of inspection and a duty to notify defects pursuant to Section 377 HGB [German Commercial Code]. d) The licensee will observe the instructions given by F&M for installation and operation of the software. e) Insofar as F&M has further obligations to perform beyond the provision of the subject matter of contract, the licensee will co-operate free of charge to the extent necessary, e.g. by providing qualified employees, working areas, hardware and software, data and telecommunications equipment. f) For trouble-shooting and debugging, licensee grants F&M access to the subject matter of contract immediately on site and by means of remote data transmission via secure VPN. 3

4 g) In the event that the software does not work properly wholly or in part (e.g. by daily data backup, regular checking of the data processing results), the licensee takes adequate measures. h) If not explicitly mentioned by the licensee in advance, F&M might assume that all data of the licensee with which they or the subject matter of contract can come into contact, is saved. i) The licensee shall bear disadvantages, surplus cost and damages from a violation of these duties. Section 10 Time of Delivery and Performance a) Unless otherwise agreed, the software will be delivered in the current version at the date of delivery. b) Delivery is effected by F&M at their discretion by installing the software and the application documentation either (i) themselves at the licensee, or (ii) handing it over to the licensee on a machine-readable data carrier or (iii) providing it retrievably in a network (Internet or Intranet, LAN), and informing the customer accordingly. c) For compliance of delivery dates and the passing of risk in the case of shipment of physical goods, the point in time is authoritative when F&M hands over the software and application documentation, otherwise the point in time when the software and application documentation is provided retrievably in the network, and the customer has been informed accordingly. If the software or application documentation after the passing of risk is damaged or destroyed, F&M delivers replacement against reimbursement of the expenditure. Section 11 Material Defects and Defects of Title a) The customer will promptly notify defects by indicating the information known to it and relevant for their detection via the medium determined by F&M (among others hotline, online support system). The customer will take all reasonable measures in order to facilitate detection of the defects and their causes. b) F&M supplies guarantee pursuant to the following terms and conditions for the agreed upon quality of the subject matter of contract and for the fact that use of the subject matter of contract within the contractual scope by the licensee is not prejudiced by any third party rights. c) Licensee and F&M agree that it is not possible to develop software programmes such that they are free from defects for all application conditions. d) In the event of defects of title, F&M supplies guarantee at first by supplementary performance. For this, they provide at their discretion a legally impeccable possibility of usage for the licensee with respect to the subject matter of contract supplied or with respect to replaced or modified equivalent subject matter of contract. F&M is entitled to make supplementary performance dependent on whether the licensee has paid at least an appropriate part of the remuneration. 4

5 e) F&M can eliminate a material defect at their discretion by prompt removal, circumvention or new delivery. Elimination of defects also includes delivery of a printed out or printable correction instruction for the documentation as far as this is necessary. f) If two attempts of supplementary performance fail, the licensee is entitled to specify an appropriate period of grace for elimination of the defects. The licensee must explicitly advise in writing that it reserves the right to withdraw from contract and/or claim damages, if supplementary performance fails again. If supplementary performance fails in the grace period as well, the licensee can withdraw from contract or reduce the remuneration, unless an insignificant defect exists. g) F&M shall pay damages or make reimbursement of expenses incurred in vain for a defect within the scope of the limits determined in Section 12 of the present terms and conditions. After expiration of the term determined in f), the licenser can demand that the licensee exercises its rights resulting from the expiration of the term within two weeks after receipt of the request. After expiration of the term, the option passes over to the licenser. h) If F&M renders services during trouble-shooting or debugging without being obliged to do so, it can demand a remuneration for it pursuant to the agreed upon rates. This applies in particular, if a defect is not provable or not attributable to F&M. Moreover, the additional expenditure incurred by F&M as a result of the fact that the licensee has not properly complied with its duties, has to be paid. i) If third parties put forward claims, which prevent the licensee from exercising its rights of use granted to it by contract, the licensee shall promptly inform F&M fully in writing. Licensee herewith authorises F&M to initiate an action in court or out of court against third parties alone. If the customer is sued, it will consult with F&M, and will take procedural actions, in particular acknowledgements and settlements, only with approval by F&M. F&M is obliged to defend the claims on its own expenses and indemnify licensee from all cost and damage associated with the defence of the claim, unless these are based upon its behaviour contrary to duty. j) From other breaches of duty of F&M the licensee can only derive rights, if it has reprimanded them to F&M in writing, and granted a grace period for remedy. This does not apply, if according to the type of breach of duty, a remedy is ruled out. To damages or reimbursement of expenses incurred in vain the limits specified in Section 12 of the present terms and conditions shall apply. k) The statute of limitations for all warranty claims is one year and starts with delivery and/or provision (and notification of provision to the licensee) of the subject matter of contract; the same term applies to other claims of any type whatsoever towards F&M. In the event of intent or gross negligence of F&M, fraudulent concealment of a defect, injury to persons or defects of title within the meaning of Section 438 subsection 1 no. 1 a BGB [German Civil Code], as well as in the event of guarantees (Section 444 BGB), the statutory limitation periods apply, likewise for claims according to the German Product Liability Act. If the licensee prior to expiration of the warranty period reports a defect pursuant to Section 11 a), the term of the defect reported is suspended, if F&M in agreement with licensee checks the existence of the defect or makes a supplementary performance. The warranty period is suspended until F&M informs the licensee of the result of its inspection, declares non-performance to be terminated or refuses continuation of supplementary performance. 5

6 Section 12 Liability a) In all cases of contractual and non-contractual liability F&M shall pay damages exclusively within the following limits: (1) in the event of intent or gross negligence in full, likewise in the event of absence of a quality for which F&M has assumed guarantee; (2) in other cases: only from infringement of an essential contractual obligation, if the contractual purpose is jeopardised as a result, but always only in the amount of the foreseeable damage. Liability is limited to Euro 50,000 per claim, in total to Euro 250,000 max. from the present contract, for financial loss up to 10% max. of the total contract price. Liability for financial loss is limited in total to Euro 250,000 for the present contract. This limit does not apply, if different maximum liability amounts have been stipulated. (3) Moreover, insofar as F&M is insured against the damages incurred, within the scope of the insurance coverage and subject to the condition precedent of the insurance payment. (4) F&M shall not be liable for loss of profit. (5) Claims for negligently omitted failure to explain negative material characteristics of the products are excluded, if no material defect is justified, unless F&M has in addition assumed explicit consultation of the customer. (6) Liability by F&M for loss or change of data is limited to the typical recovery expenses which would have been incurred through making regular backup copies in accordance with the risk. (7) Liability of F&M expires, if the licensee itself or third parties without prior approval have made rework and modifications on the software; Section 4 remains unaffected. b) The limitations of liability pursuant to a) do not apply in the case of liability in the event of fraudulent concealment of a defect, intent, gross negligence and violation of life, limb or health, and liability pursuant to the German Product Liability Act. c) F&M reserves the right of defence of contributory negligence. d) To the statute of limitation Section 11 k) applies accordingly providing that for claims pursuant to a) (1) as well as in the cases of clause b) the statutory period of limitation shall apply. The statute of limitation pursuant to sentence 1 starts with the point in time specified in Section 199 subsection 1 BGB. It occurs not later than with expiration of the maximum terms specified in Section 199 subsection 3 and 4 BGB. Section 13 Protection of the Licensee in the event of Bankruptcy of F&M On request and at the expense of the licensee F&M will enter into an escrow agreement and deposits the respective version of the source code which the licensee is allowed to use under the present contract. 6

7 Section 14 Confidentiality and Data Protection a) Without explicit written prior approval of F&M the licensee shall not be allowed to disclose wholly or in part to third parties the software and/or modifications of same nor the documentation as well as other confidential information of F&M. b) The licensee engages itself with respect to all data and information which have become known to it in connection with the granting of rights of use within the scope of contract negotiations and contract execution from the area of control of F&M to keep same confidential indefinitely, and to use them only for the purpose of execution of the software use in accordance with the present terms and conditions. The confidentiality obligation does not apply to information which - at the time of its transmission by the contractual partner has already been publicly known or known to the other contractual party; - after its transmission by the contractual partner have become publicly known without fault of the other contractual party; - after its transmission by the contractual partner have not unlawfully been disclosed to the other contractual party by a third party without restriction concerning confidentiality or exploitation; - has been independently developed by a contractual party without making use of the business secrets of the contractual partner; - in accordance with law, official order or court decision had to be published - provided that the disclosing party promptly informs the contractual partner on it and supports it in the defence of such orders and/or decisions - insofar as the contractual partner is permitted to use or transmit the business secrets due to mandatory statutory provisions or due to the present contract. c) The licensee will disclose the subject matter of contract to employees and other third parties only to the extent as this is necessary for exercise of the rights of use granted to it. It will inform all individuals to whom it grants access to the subject matter of contract on the rights of F&M in the subject matter of contract, and the obligation to keep it confidential, and place these individuals in writing under an obligation to maintain confidentiality and use of the information only to the extent pursuant to a), insofar as the individuals concerned are not under an obligation to maintain confidentiality for other legal reasons at least to the above mentioned extent. d) F&M complies with the provisions on data protection, in particular if they are granted access to the premises or the hardware and software of the licensee. F&M ensures that their vicarious agents will equally comply with these provisions, in particular they will commit them to maintain data secrecy prior to start of work. F&M does not intend any processing or use of personal data on behalf of the licensee. Transfer of personal data rather occurs only in exceptional cases as a side effect of the services of F&M according to contract. The personal data will be treated by F&M in conformity with the statutory provisions on data protection. Section 15 Installation, Training, Implementation Support a) For installation of the software F&M refers to the installation instructions described in the application documentation, in particular to the hardware and software environment which must exist at the licensee. Installation of the software is made on the basis of an agreement to be concluded separately, and the price lists as appropriate. b) Implementation support and training will be provided by F&M in accordance with content and remuneration to be agreed upon in a separate project agreement. 7

8 Section 16 Customer Reference List Licensee allows F&M to include its name in a customer reference list. F&M shall be allowed to use the name at any time for advertising purposes orally and in writing, also electronically, in media with restricted or public access, and refer to the cooperation. But F&M shall only be allowed to do this in an adequate manner reasonable for the licensee. The same applies to representation of the company logo/administrative logo. Section 17 Declaration of Consent Licensee agrees that F&M and its affiliated companies are allowed to store and use its business contact information including names, business telephone numbers and addresses in all countries where F&M and its affiliated companies do business. Such information can be maintained and used within the scope of the existing business relationship, and be transmitted to suppliers, who act on behalf of F&M, in order to advertise, market and promote products and services, and representatives of F&M and their affiliated companies for the purpose of joint business activities (e.g. processing of purchase orders, advertising campaigns, market research). Section 18 Conclusions a) Ulm, Baden Württemberg/Germany shall have exclusive jurisdiction for all disputes arising out of or in connection with the present contract. If F&M submits an action, it is also entitled to choose the place of jurisdiction at the registered office of licensee. b) German law shall exclusively be applicable to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). 8