Software Licence Terms and Conditions for the Provision of Software of WIELAND Dental + Technik GmbH & Co. KG for an Indefinite Period

Transcription

1 Software Licence Terms and Conditions for the Provision of Software of WIELAND Dental + Technik GmbH & Co. KG for an Indefinite Period as of: April 2014 A. General License Terms 1. SCOPE 1.1 Object of the Software License Terms and Conditions is the Software provided for an indefinite period to the customer that WIELAND Dental + Technik GmbH & Co. KG (WIELAND) has developed or sells in its own name, along with the associated program documentation. The exact description of the Software provided is determined by the Contract Form and the Technical Product Description annexed to the document. For separately supplied software from other manufacturers (third party software) the license conditions of the respective manufacturers apply according to the following specific license conditions. 1.2 Unless otherwise provided in the Contract Form, the customer receives the Software solely in object code format for self-installation on the customer's system. 1.3 The Software and accompanying program documentation are protected by copyright. In relation to the customer, all rights to the Software shall be due exclusively to the respective manufacturers. 2. GRANT OF RIGHT TO USE, SCOPE OF LICENSE 2.1 The customer receives a non-exclusive and transferable right to use the Software for an indefinite period subject only to the provision in section 2.6, according to the General Terms and Conditions of the Software License. The customer is not entitled to disclosure of the source code and development documentation for the Software. 2.2 The License entitles the customer to use the Software for its own operational purposes according to the accompanying program documentation by the number of authorized users as listed in the Contract Form, whereby right of use solely is deemed important, rather than actual use. 2.3 Use means the loading, displaying, running, transferring and storing of the Software for purposes of its execution and the processing of data resources on the system of the customer, upon which the Software is installed.

2 2.4 The customer is entitled to make a backup copy of the Software that must be identified with a copy of the original labelling (including the copyright notice). Use of the backup copy is permitted only with deterioration or loss of the originally provided WIELAND copy of Software. The customer is also subject to the terms and conditions of this General Software License in regard to the use of the backup copy. Moreover, the customer is not entitled to reproduce the Software or the Software documentation or portions thereof beyond the use authorized pursuant to Section 2.1 without prior written consent of WIELAND. 2.5 Without the consent of WIELAND, the customer is not permitted to edit, modify or otherwise amend the Software; to connect it with other programs in a manner other than via the interfaces provided for this purpose; to retranslate (to decompile) it to another display format; to remove, circumvent or modify any security codes or labelling of the features serving to identify the Software; or to remove information as contained in the Software and program documentation concerning authorship, copyrights (copyright) or other proprietary rights of WIELAND. The provisions of Section 69 d para. 3 and Section 69 e German Copyright Act remain unaffected. 2.6 The customer is entitled to transfer the Software as a whole, together with the License under these General Software License Terms and Conditions for an indefinite period to a subsequent user purchaser, provided that the customer does not retain any copies of the Software and related program documentation - not even in part - and abstains from all continuous use of the Software. As regards business, parcel or volume licenses the right to further transfer is limited to the transfer of the entire license inventory to a single subsequent purchaser; splitting and transfer of parts of the license inventory to one or more subsequent purchasers requires the prior written consent of WIELAND which may be subject to payment of an additional reasonable license fee. In all cases, the right of use of the subsequent purchaser begins only upon receipt by WIELAND of a copy of the Contract Form and these Software License Terms and Conditions signed by the customer and the subsequent purchaser, whereby the name or company of the subsequent purchaser and its business address are stated in full. Additionally, the customer must provide WIELAND with a written assurance that all remaining copies of the Software and related program documentation in its possession have been deleted or destroyed by other means. Costs and expenses incurred by WIELAND for the transfer of the license shall be borne by the customer in relation to WIELAND. 3. DURATION OF LICENSE 3.1 The License begins on the date specified in the Contract Form and will be granted for an indefinite period, i.e. without time limit. The right to ordinary termination of the License is excluded for both parties. 3.2 The right to extraordinary termination of the License for good cause remains unaffected. Good cause for extraordinary termination by WIELAND exists in particular if the customer culpably violates in a not insignificant way the provisions of Section 2 of these License Terms and Conditions. The customer is not entitled in this case to reimbursement of the remuneration paid for the transfer of the Software and the

3 granting of the License. The right of WIELAND to claim further damages remains unaffected. 3.3 Upon expiry of the License the right of the customer to use the Software expires. It has to delete the copies installed on its systems as well as all copies of the Software located on separate data carriers and to destroy the provided program documentation. WIELAND is to be informed in writing of the complete deletion or destruction, and evidence is to be provided in a suitable form at the request of WIELAND. 4. ROYALTIES 4.1 Remuneration for the provision and use of the Software is determined by the agreed scope of use and results from the Contract Form of WIELAND. Unless otherwise agreed, remuneration is payable as a one-time license fee at the commencement of the License. 5. OTHER 5.1 These General Software License Terms and Conditions also apply to later versions (updates) and enhancements of the software (upgrades), which are left to the customer by WIELAND separately or as part of a maintenance agreement, unless differing agreements have been made at the transfer of each subsequent update or upgrade. 5.2 If these General Software License Terms and Conditions contain no separate or differing provisions, the General Terms and Conditions of WIELAND shall govern the transfer and use of the Software in all other respects. B Special provisions for the transfer of DentalWings Software for an indefinite period. 1. DEFINITIONS 1.1. For the purposes of the conditions listed below the terms below have the following meanings, unless otherwise defined or when clearly different in meaning from the context: Software purchase "The Aforementioned Equipment" "End-users" The usage software purchase is determined by the description in the Contract Form in the purchase column. The type of hardware and system software on which the Software will run, as stated in the technical description. The natural or legal person who enters into an End-user license agreement with Licensor.

4 "EULA" "Licensor" "Seat License" The End-User License Agreement is concluded on the basis of these special provisions between the Licensor and the End-user in terms of the Software. WIELAND Dental + Technik GmbH & Co KG, Lindenstraße 2, Pforzheim, Germany. A single, non-exclusive license that entitles the End-user to install and use the Software on a PC. For the avoidance of doubt, a Seat License may not be shared or used concurrently on different PCs. "Software" "Dental Wings" "Warranty period" Dental Wings Software as referred to in the Contract Form. The company Dental Wings, 2030 Pie IX, suite 219, Montreal, Quebec, CANADA H1V 2C8. In relation to a Seat License for Software purchase one year after delivery of the Software to the End-user. 2. LICENCE 2.1. Dental Wings reserves all rights: Dental Wings reserves exclusive rights to the Software including all intellectual and other proprietary rights in and to the Software. Dental Wings has granted the Licensor a non-exclusive right to assign Seat Licenses as sub-licenses to the End-user License of the end-user: the Licensor grants the End-user the number of Seat Licenses, as determined from the EULA in connection with the Contract Form. The End-user thus obtains the non-exclusive right to install and use the Software on the number of PCs that corresponds to the number of seat licenses that were granted in the sub-license to the End-user No time limitation on the purchase of Software: The Seat License (s) granted to the End-user with Software purchase (s) is/are License (s) of indefinite period Prohibition of transfer, sub-licensing, rent, loan, sale or lease: The End-user may neither wholly nor partially transfer, sell, sub-license, rent, lend or otherwise assign the Software or the End-user License(s) either for consideration or gratuitously Restrictions on reverse engineering, decompilation and disassembly: The Enduser is not entitled to reverse engineer, decompile or disassemble the Software except in the case and only to the extent that such action is expressly permitted by the provisions of applicable law.

5 3. TERMINATION 3.1. Extraordinary Termination: The Licensor shall be entitled to extraordinarily terminate the License granted to the End-user if any of the following events occurs: a. If the End-user is in culpable breach of a material term, condition or provision of the EULA, in particular against its payment obligations under the agreement and has not remedied such breach (if a remedy is possible) within 30 days of the date of receipt of written notice; or b. If the End-user is a legal person and enters an application for dissolution or such request is entered by a creditor, or if the End-user convenes a shareholders' meeting to adopt a resolution for voluntary dissolution, or any kind of liquidation proceedings is initiated (except for those for purposes of fair financial recovery or merger); if it convenes a meeting of its creditors, or a receiver is appointed for the whole or part of its business or its assets, or if it is considered non-able under the relevant statutory provisions of the applicable legal system to meet its payment obligations Suspension of use at termination: At the time of termination or expiration of the License(s) granted to the End-user for any reason, the End-user should discontinue any and all use of the Software and destroy any and all copies of the Software in its possession, including all safety- and other copies or, to return them to Licensor upon request. Expiration of the License(s) shall not occur at the purchase of the Software despite termination if and insofar as the Licenses concerned were paid in full by the End-user and these Licenses were lawfully and contractually available to the End-user. 4. WARRANTY 4.1. Warranty: The Licensor warrants that the Software will operate in accordance with the attached technical software description for the duration of the warranty period on the aforementioned equipment. Minor defects entitle subsequent rectification and reduction only, but do not entitle withdrawal from the contract. In the event that the End-user detects a defect of the Software as aforementioned during the warranty period and the End-user notifies the Licensor about the defect immediately upon finding the defect, the Licensor is obligated to remedy the defective Software (usually with a patch or a new version) provided that: a. such defect of the Software was not caused by any amendment, modification or addition to the Software that was not made by the Licensor or its Licensor, or was caused by improper or incorrect use of the Software or by tampering by the End-user, or by the use of the Software with other software or on equipment that is not compatible, and b. the most recent version of the Software, which has been made available to the End-user by the Licensor, has been installed by the End-user in accordance with the applicable installation instructions within 3 (three) months from the date on which the version was made available to the End-

6 user, (so that the Software version installed by the End-user is either the most recent version that was made available to the End-user by the Licensor, or at least the most recent version that was made available to the End-user by the Licensor three (3) months or more prior to the date on which the alleged defect was found). If the serious defect is not remedied within a reasonable period, the Enduser is entitled to withdraw from the acquisition of the relevant Seat License(s) Following such substantiated withdrawal, the End-user must return the copy of the Software together with the dongle (if any) that was originally supplied with the Software to the Licensor. When purchasing the Software, the Licensor will reimburse the Enduser the licensing fees paid by the End-user to Licensor for the relevant Seat License(s), less a reasonable amount for the use of the Seat License(s) by the Enduser in the period before the withdrawal, if and to the extent productive use was possible Note: The Licensor excludes all other tacit warranties with regard to the merchantability or fitness of the Software for any use other than as described in this Contract. 5. RIGHTS 5.1. No license granted with respect to patents of third parties: The Licensor and its Licensor may not and do not grant a License to the End-user in terms of patents whose owners are third parties Treatment of property rights infringements: The Software does not infringe upon any intellectual property rights of any third party to the best knowledge of the Licensor. However, the Licensor may in the event of such a violation of property rights at its own expense and at its own option: a. To give the End-user the right to use the Software or that part of it which gives rise to the injury; b. to amend and modify the Software or that part of it which gives rise to the injury in order to eliminate the injury; or c. to replace the Software or that part of it which gives rise to the injury with another software of comparable performance. If it is not possible for the Licensor to regulate the infringement with the aforementioned actions described in (a) to (c) above using reasonable efforts within the meaning of Section 275 BGB (German Civil Code), the End-users are entitled to the corresponding rights listed in Section 4.2.

7 5.3. Exceptions to the procedure: The obligations of the Licensor under this clause shall not apply in cases where the claim is justified and/or traceable with regard to infringement of intellectual property rights of any third party: 6. LIABILITY a. Any breach of the duty of care in respect of damage, or abusive or unauthorized use of the Software or any component part of it by the Enduser; b. any modification of the Software by the End-user or linking the Software or any component part of it with software and/or hardware that differs from the aforementioned equipment; c. omission to provide the End-user with the most recent update of the Software, which the Licensor has provided; or d. the failure of the End-user to comply with the provisions of the EULA in any other form In case of gross negligence or willful misconduct the Licensor shall be liable according to statutory regulations, the following limitations will not apply in these cases For ordinary negligence liability will be restricted to the one-time license fee insofar as neither an material contractual obligation (cardinal obligation) has been violated, nor life or limb were injured, or a case of impossibility or delays In case of simple negligence, as far as a material contractual obligation is breached or there is a case of impossibility or delays, liability for damages not caused by injury to life or limb shall be limited to such injuries that were foreseeable at conclusion of the contract and after the usual contract course The Licensor is liable to the End-user or any third party, whether that third party is connected to the User or not, for all indirect losses or damages that directly or indirectly result from the rights and duties granted under this contract, solely in the case of gross negligence or willful misconduct The End-user acknowledges that it has to provide in particular for regular backup of data as part of its duty of care and must take in the case of a suspected Software error all reasonable additional security measures The foregoing limitations also apply in the case of simple negligence in favour of employees and other employees of the Licensor, as well as in favour of the supplier of the Software However, the foregoing limitations of liability in accordance with paragraphs 1 to 6 do not restrict the statutory claims under the Product Liability Act, agreed guarantees and claims arising from injury to life, body or health.

8 7. MISCELLANEOUS PROVISIONS 7.1. Dental Wings is not a party to the EULA but it is a beneficiary of the EULA between the Licensor and the End-user in terms of a contract in favour of third parties. Dental Wings disclaims any express or implied warranty to the End-user. Dental Wings is not for liable any damage, regardless of whether it arises directly, indirectly, incidentally, or necessarily from the use of the Software by the End-user The failure to exercise or delay in exercising or exercise of any rights or remedies under this Contract do not constitute a waiver of the respective right or remedy or other rights or remedies. The exercise of only individual rights or remedies or the partial exercise of any right or remedy will not exclude the future exercise of the respective rights or remedies or any other rights or remedies. The rights and remedies under this Contract are to be understood cumulatively, in other words, they do not exclude the respective rights or remedies of any of the parties under statutory provisions Headings: The headings of the conditions contained in this Agreement are used only for ease of reference and are not to be considered as part of any condition of these EULA and should not influence its meaning or interpretation As far as these particular Conditions contain no separate or deviating provisions, for all other cases the General License Terms and Conditions (Section A) and the General Terms and Conditions of WIELAND shall govern the provision and use of the Software.