General Terms and Conditions
for deliveries, services and software licenses of the:
A. Contractual basis
1. Scope of application. These terms and conditions apply to all contractual relationships and pre-contractual negotiations with our customers, irrespective of the type and scope of performance within the scope of current and future business relationships.
2. Exclusivity. Our terms and conditions of business shall apply exclusively: Conflicting terms and conditions of our contractual partners or third parties are only valid if the company expressly agrees to their validity in writing. If you should not agree with it, point out the company immediately in writing. In this case, we must reserve the right to withdraw our offers without any claims of any kind against us. We hereby expressly object to any reference to our own terms and conditions of business in the form of a form.
3. Conclusion of contract and written form. As a matter of principle, we shall only enter into a contractual obligation if the type and scope of performance and consideration have been stipulated in writing by both parties. Subsequent oral amendments and supplements shall only become effective if they have subsequently been confirmed in writing. The same applies to all declarations of intent, in particular complaints, reminders and notices of defects within the framework of the contractual relationship. Contractual penalties must be reserved in writing by both parties to the contract. This clause can only be cancelled by express written agreement.
B. Provision of Software
1. License and scope of use. The Company, in its capacity as the holder of the rights, transfers to the Customer the non-transferable and non-exclusive right to use the software and documentation material specified in the order and/or invoice for an indefinite period of time. Contractual use is defined as: Reading of instructions or data of a program by input at the terminal, by transfer from memory units or from data carriers into the agreed hardware for the purpose of processing as well as production of a copy in machine-readable form for data backup. The scope of use, performance and all other specific program features are determined solely by the manual enclosed with the program. The customer acquires the right to use the software on as many workstations integrated in a local network as he has paid license fees. The basis of assessment for this is the number of licenses listed in the corresponding invoice as well as any special agreements made (quantity scales, unlimited licenses, etc.).
Workstations in the network also include home workstations belonging to the network, portable computers temporarily connected to the network and remote workstations. If these merely serve as substitutes for workstations connected to the local network, no additional workstation license is required. If the agreed number is exceeded, error-free operation is not guaranteed. Simultaneous operation shall also include the use of the software on portable computers.
2. Industrial property rights of third parties. The Company shall indemnify the Customer against all claims made against the Customer in connection with the use of the Software for infringement of copyrights, patents or other intellectual property rights, provided -?that the Customer immediately notifies the Company of any allegations of infringement made, -the Customer does not acknowledge any such claims without the Company's consent, -the Customer permits the Company to conduct all negotiations and proceedings, and the Company provides the necessary assistance, with all costs of negotiations and proceedings being borne by the Company. The foregoing obligation shall not apply if the copyright or patent infringement or other impairment of rights is due to the Software or parts thereof being used with equipment or programs not supplied by the Company or the combined use of which has not been agreed to. The foregoing provisions shall govern the entire liability of the Company in connection with any infringement of copyrights, patent rights or other intellectual property rights.
In case of already raised or expected claims due to infringement of copyrights, patent rights or other intellectual property rights, the Company may, at its own expense, modify or replace the equipment or programs to prevent infringement. This shall not reduce the performance of the software system supplied by the Company. If the use of the software or parts thereof is prohibited by a court decision or if, at the Company's discretion, a lawsuit for infringement of property rights is threatened, the Company may, to the exclusion of all other rights of the Customer, at its option and expense -modify the programs so that they no longer infringe property rights; -procure for the Customer the right to continue to use the systems; -? replace the programs in question with programs which do not infringe any property rights and which either meet the customer's requirements or are equivalent to the replaced programs; -take back the programs or parts thereof and refund to the customer the (possibly pro rata) purchase price less a reasonable amount for use and loss of value, reduced by the damage incurred by the customer as a result.
3. Ownership, Copyrights and Source Code. The software provided to the Customer, including all documentation, shall remain the property of the Company. The Company shall remain the owner of all copyrights and rights of use to the programs provided to the Customer, including the respective documentation material, even if the Customer modifies them or combines them with its own programs and/or those of a third party. In the case of such modifications or connections as well as in the case of the creation of copies, the customer shall affix a corresponding copyright notice. Modifications and enhancements to the program code made at the request and for the account of the Customer shall become the property of the Company and may be made available to other Customers upon the Customer's consent. The rights of use for the program improvements are assigned to the Company. The Company hereby accepts the assignment. Modification of the program code by the Customer shall only be permitted with the prior written consent of the Company. Such consent may only be withheld for good cause.
Of such changes, the Customer shall provide the Company with a copy of the change on a data carrier or in printed form together with all necessary information. Any utilization of the modified program version shall require the consent of the Customer. If the Customer or third parties use modified programs or other programs not obtained from the Company and the function of the system is impaired as a result, the Company shall not be liable for any damage incurred. A surrender of the source code requires an explicit written agreement on the type and scope of the surrender as well as an additional remuneration.
4. Payments. For the use of the software for an indefinite period of time the customer is obliged to pay a one-time license fee. The amount of the license fee is based on the current price list or on the separate agreements made according to the order or invoice. 50% of the invoiced services are due upon conclusion of the contract and 50% upon delivery and acceptance. All other services invoiced under this contract are due upon delivery. Unless otherwise agreed, the Customer shall make payments immediately to a bank account of the Company. If the Customer is more than 30 days in arrears with payments due, the Company shall be entitled to charge interest on arrears at the rate of 5% above the applicable prime rate per annum.
5. Obligations of the customer. The provided programs as well as the documentation material may not be made accessible to third parties, neither in whole nor in part, with any indication of possible misuse. The customer may not change markings, copyright notices and proprietary information of the company on the programs in any form. The customer shall ensure that all program, documentation, operating documents and program-specific knowledge are kept secret from third parties. This includes only those documents that were made available to the customer in fulfillment of this contract, but not promotional literature and its contents. He shall oblige his employees to maintain appropriate secrecy. This confidentiality obligation shall also apply beyond the term of the contract, irrespective of whether the contractual relationship has been terminated prematurely for any reason. Furthermore, the obligation to maintain secrecy also includes a prohibition of publication of only excerpts of materials or quotations.