General Business Term
Sale and granting of rights of use
§ 1 Object of contract and special contractual provisions
(1) The object of contract consists of the sale of the software product EXP-Instandhaltung and the English version of the software product EXP-Instandhaltung with the name Expert-maintenance.
(2) Part A regulates the general regulations.
(3) Part B contains the regulations concerning the granting of the rights of use.
(4) The source code is not the object of the assignment.
(5) The respective actual price list shall apply.
(6) Insofar as 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 single regulations shall be replaced by the regulations of optional law. The same shall apply for the event that the business terms of the customer contain regulations, which are not included within the framework of these business terms. These business terms shall apply if these business terms contain regulations, which are not included in the business terms of the customer.
§ 2 Planning and consultancy
If the customer requests the planning, consultancy or realisation of further possibilities for use, these additional services of the licensor shall be charged at the rates of the respective applicable service prices of the licensor, at least however according to the service prices of the respective applicable price list, if free of charge is not expressly agreed in writing.
§ 3 Prices and payments, maturity and default
(1) The prices are given in EURO exclusive of the rate of value added tax which is applicable on the day of delivery, insofar as the underlying services are subject to the value added tax obligation. Invoice amounts are – with the exception of a cash sale – due and payable on the dates shown in the invoices without deduction, otherwise immediately.
(2) An other payment than cash payment is only deemed as made on the day, upon which the amount if finally at the free disposal of the licensor.
(3) The user shall owe interest from the due date in the amount of 8 % above the base lending rate of the European Central Bank, at least however 10 %; the licensor reserves the right to assert actually higher proven damages.
(4) The customer may only offset against legally valid determined or acknowledged claims.
§ 4 Duties for assistance of the customer
The duties for assistance of the customer are main service duties. The following technical duties for assistance are necessary for the customer’s installation.
(1) The software may only be operated in the system environment as defined by the offer. Any changes to the system environment can lead to the occurrence of faults.
(2) The system date on the computers is to be entered correctly.
(3) Server and work stations must be provided with an uninterruptible electricity supply.
(4) Programfiles, sortfiles and datafiles of the software may not be mirrored (RAID).
§ 5 Reservation
(1) The licensor reserves the property to the software delivered to the customer until the full payment of all claims from this contractual relationship existing at the time of the delivery or which are incurred subsequently; in case of payment by cheque or bill of exchange until they are encashed.
(2) The rights of use to the software shall only be finally assigned to the customer with the full payment of the claim. Until this time the assignment of the rights of use can be revoked at all times, after the customer has not paid the claim within a period of 10 days despite setting a final deadline with a threat of refusal.
(3) The assertion of the reservation of title by the licensor shall not be deemed as a cancellation of the contract unless the licensor expressly informs the customer thereof.
(4) When the reservation of title is asserted by the licensor the customer’s right to the further use of the software shall expire if the licensor cancels the contract at the same time. In this case all programme copies prepared by the customer and the programme must be deleted.
§ 6 Take-over of data
The take-over of data from other databases or computer systems is the object of a separate order. In the event that data are taken over the customer undertakes to check the completeness and accuracy of the contents of the data himself.
§ 7 Delivery periods, force majeure
(1) The delivery period shall be determined according to the order confirmation. Deadlines are not fixed deadlines unless this is agreed separately.
(2) If the licensor cannot satisfy his obligations as a result of force majeure (e.g. strike, interferences to operation) despite showing the necessary care and attention the delivery period shall be extended to a reasonable extent. However, the customer is entitled to cancel the order if he would otherwise suffer unreasonable disadvantages.
§ 8 Installation
(1) The installation shall be carried out by the customer himself. The programme has an installation routine, which starts automatically.
(2) § 377 HGB [Commercial Code] shall apply.
§ 9 System responsibility
(1) The compatibility of the programmes to existing hardware as well as software configurations of the customer is only guaranteed for the systems expressly mentioned in the offer.
(2) The licensor assumes no liability for the compatibility of the software to other hardware or software configurations of the customer, which were changed after the order by the customer. Neither is liability guaranteed for the compatibility of simultaneously supplied systems. Deviations are to be agreed separately.
§ 10 Warranty
(1) Warranty claims for defects shall only be incurred in case of a fault. "Fault” within the meaning of this contract is exclusively an interference to a function of the software, which leads to the fact that the programme does not provide the functions featured according to the documentation and the performance specifications. The suitability of the software to achieve business management targets is not owed.
(2) The fault definitions of § 14 shall apply.
(3) The warranty shall begin no later than at that moment at which the customer possesses an executable version of the programme, which he can install himself. Insofar as he cannot carry out the installation himself, the moment of the installation shall be deemed as the beginning.
(4) The warranty period for all delivered products is 12 months. Claims for damages shall become statute barred within the same deadline unless the customer failed to be aware that damages were suffered without gross negligence or wilful intent, claims from a guarantee promise are affected or damages were asserted to life and body or the damages were suffered through gross negligence or wilful intent.
(5) Insofar as a statutory or technical provision is changed shortly before the planned hand-over and the availability of the function of the software concerned is thus endangered, the licensor can demand a reasonable extension of the period for realising this function.
(6) During the term of the warranty period the licensor shall remedy justified defects immediately through if applicable multiple subsequent improvements or replacement delivery. In case of insignificant defects the licensor can alternatively make a circumvention solution available and finally correct the defect with the delivery of the next update. The right of the customer to assert warranty claims is excluded during this period of time. If the subsequent improvement fails repeatedly and if further waiting is deemed unreasonable for the customer the rights of the customer for declaration of a reduction shall apply again. In case of an insignificant defect the customer shall not be entitled to assert claims for damages or to declare the cancellation from the contract.
(7) If the customer acquires further seats (licences) this process in itself shall merely represent an extension of the customer’s rights of use. No new programme will be delivered, merely the number of users will be increased. A warranty for new seats shall only be taken over in case these feature faults, which the programme did not feature without these seats.
§ 11 Liability
Insofar as not otherwise negotiated individually the liability shall be delimited as follows:
(1) The licensor excludes the liability for slightly negligent breaches of insignificant contractual duties.
(2) In case the customer does not satisfy the duties for assistance he must prove, in the event of the assertion of claims for damages, that the damages suffered by the customer in the productive use of the software, would also have been suffered if these obligations had been satisfied by the customer.
(3) The licensor shall be held liable for the negligent breach of essential contractual duties not limited in terms of the amount, insofar as these were breached by executives. Insofar as the duties were breached by simple employees or by third parties, the amount of the liability is limited to the extent which corresponds with the typical extent which was clear when the contract was concluded.
(4) The liability for damages, which directly result from a delayed service, is limited in terms of amount to 15% of the order amount.
(5) The licensor shall not be liable for missed profits.
(6) The claims for damages shall become statute barred within one year after gaining knowledge or after they were not known as a result of at least gross negligence.
(7) The afore-mentioned liability exclusions (Par.2 to 6) shall not apply to claims for damages which are asserted from an injury to the health, body or life or guarantee promises or which are due to wilful intent or gross negligence.
§ 12 Performance by subcontractors
After obtaining the consent of the customer the licensor is entitled to provide his service and warranty obligations under this contract through third parties as subcontractors. The customer may only reject the subcontractor in case of justified objections against their use. The customer undertakes not to commission personally or through third parties any of the named subcontractors for the duration of the contract and a period of 12 months after termination.
§ 13 Choice of law and place of jurisdiction
(1) The parties agree the application of the law of the Federal Republic of Germany under the exclusion of the UN law on the international sale of goods with regard to all legal relations from this contractual relationship.
(2) Insofar as the customer is a merchant within the meaning of the HGB [Commercial Code], legal entity under public law or investment fund under public law, Bremen shall be agreed as place of jurisdiction for all disputes, arising within the framework of the processing of this contractual relationship.
§ 14 Definitions
(a.) Fault categories
Faults which prevent the operation
The operational use of the programme by the customer is either interrupted or so seriously disturbed that it cannot be deemed reasonable for the customer to maintain his operation.
Faults which impede operation
Important functions of the programme are not available, without a satisfactory troubleshooting or at least circumvention solution being available. The implementation or the operational use of the programme by the customer is in fact not interrupted, nevertheless there are serious implications on the customer’s productivity.
Faults which restrict the operation
Important functions of the programme are not available, however a circumvention solution is available or less important functions are not available, without a reasonable circumvention solution being available. The operation of the programme at the customer is merely slightly impaired irrespective of the used environment or the used product.
Other faults, insignificant faults, slight faults
These faults are defects which have no decisive implications on the usability of the software. Such faults shall be corrected within the framework of the normal further development of the software in one of the next releases.
b.) concurrent seats: number of simultaneously executable programmes, which can be used on different workstations.
c.) EULA: End User Licence Agreement: conditions of use for the software.
d.) Software: the computer programmes handed over for the first time, other new software, which supplements these or corrects their faults, as well as manuals, data carriers, no matter of what format and installation instructions.
e.) System environment: the hardware which is necessary for the proper run of the software including the necessary programmes and operating systems.
§ 15 General information
(1) All agreements, which include an amendment, supplement or specification of these contractual terms, as well as special assurances and agreements are to be recorded in writing. If they are declared by representatives or assistants of the licensor, they shall only be deemed binding if the licensor grants his written consent for these.
(2) Should one provision of this contract or the respective addendum be or become invalid this shall have no effect on the validity of the framework agreement and the addendums on the whole. The invalid provision shall be replaced by a provision which shall as far as possible satisfy the commercial intention of the invalid provision.
Part B: rights of use
§ 1 Limitation of the rights of use of the customer
(1) The customer acquires the simple, non-exclusive right to use the contractual software World-wide except USA and Canada. The contents and number of the rights of use are described in the offer.
(2) The customer shall only acquire rights of use for using the software with the express consent of the licensor.
(3) The concrete reproduction rights and the time limitations of the rights of use shall be derived from §§ 2, 3.
(4) The software may not be used in USA or Canada. The software may not be used outside of USA or Canada if the software-data is used in USA or Canada.
§ 2 Definitions of the software
(1) The software may only be installed a maximum of one time on one single server of the customer. Deemed as installation is an installation of the programme on a server, which stands at a location of the customer. Also deemed as an installation is the installation of the software with or without connection to a server, Intranet, Internet or other connections to a network. A maximum of one data folder with data of the software may be created and used per installation of the programme.
(2) A product description, through which the rights of use for the individual products are explained in more detail can be found in the offer that the customer receives from the licensor.
§ 3 Reproduction and backup copies
The customer acquires the number of licences (rights of use) as seen from the contract. The reproduction act consists of the loading of the software into the main memory of the programme. The customer can made reproductions for purposes of backup.
§ 4 Network use / Intranet
(1) The customer may only install the software in an unlimited number within the group (§ 15 AktG [Companies Act]) after obtaining a special consent. Principally only licences for individual workstations are handed over.
(2) A use in Intranets or via the Internet between individual companies of a group requires the express consent of the licensor.
(3) The software installed on the server will be used by the number of agreed users. The users must be registered by name in the software installed on servers. The simultaneous use of the software is limited to the number of assigned licences. In addition, a maximum of 99 users can be registered, who can only use the function “fault message” of the software.
§ 5 Decompilation and programme changes by the customer
(1) The removal of a copy protection or similar protection routines is only permitted insofar as the interference-free programme use is impaired or prevented through this protection mechanism. The customer shall bear the burden of proof for the impairment or prevention of interference-free usability through the protection mechanism. The customer must report the undertaken programme changes as well as the interference symptoms which occurred to the licensor in writing by means of a detailed explanation.
(2) The corresponding acts according to Par. 1 may only be handed over to commercially operating third parties, who have a potential rival relationship with the licensor, if the licensor does not intend or cannot undertake the requested programme changes or troubleshooting against payment of a reasonable fee. The licensor must be granted a sufficient period of notice for examining the take over of the order as well as be informed of the name of the third party.
(3) Insofar as a decompilation is to be carried out the customer must enquire about the necessary information from the licensor.
(4) Copyright notices, serial numbers as well as other features which serve to identify the programme may in no way be removed or changed.
§ 6 Conventional penalty, special termination and further legal prosecution
(1) If the customer breaches one of the limits drawn in § 2 to § 5 of this contract, a conventional penalty in the amount of three times the sales price shall be due and payable.
(2) In case of a breach of duty according to the above paragraph the licensor is in addition entitled to terminate the service agreement without notice and with immediate effect.
(3) The assertion of further claims, for example according to the copyright law as well as in particular also of other claims for damages remains reserved.