General Terms and conditionsAll software deliveries of
danholt consulting services, Auf dem Schnee 104, 58313 Herdecke, Germany
(hereinafter: “Licensor”) to consumers in the sense of § 13 BGB German
Civil Code (hereinafter: “Licensee”) are subject to the following
General Business Terms (hereinafter: “GBT”), unless explicitly agreed
on otherwise between the Parties (hereinafter referred to: “Individual
Agreement”):
1. Scope of Delivery
a. Licensor is obliged to
deliver the machine-readable object code, but not the source code or
other codes, if not expressly agreed upon otherwise in the Individual
Agreement.
b. Licensor is entitled to take
adequate technical measures for the prevention of any use of software
contrary to these GBTs or the terms of any Individual Agreement
(hardware lock, dongles, authorization codes etc.). The use of software
with any succeeding or displacing designated system of Licensee shall
not be unreasonably affected or impeded by such technical measures.
c. Licensor may deliver at
Licensor´ option (i) on a data carrier storing the object-code or (ii)
by dispatching such code via E-Mail or (iii) by referring the Licensee
to the download option via internet, provided that the option chosen by
Licensor is reasonably acceptable for Licensee. In case of delivery on
a data carrier, Licensor retains title to the data carrier until the
fulfilment of the payment claims by Licensee.
d. In case a license key,
hardware lock, dongle or authorisation code is necessary for the
installation and the use of software, Licensor shall deliver such
license key, hardware lock, dongle or code. Such license key, hardware
lock, dongle or code shall not lead to a restriction or limitation of
the use of the software more then necessary for the realisation of, if
any, use restrictions agreed upon in the Individual Agreement. For the
delivery of such license key etc. the rule set forth in item c. of this
Section shall apply.
e. Licensor shall deliver
material accompanying the software like manuals, data sheets etc
(hereinafter: “Documentation”) at Licensor´ option (i) in printed
format, or (ii) as set forth in item c. of this Section. In the last
case the Documentation shall be delivered in a printable format.
f. Before completing any
delivery to Licensee, Licensor may modify or enhance the software,
always provided however that at the moment of completion of the
delivery the agreed specifications and functionality of Software
continues to be met by the modified or enhanced software.
g. Licensor may make partial and advance deliveries, provided that such delivery is reasonably acceptable for Licensee.
2. Date of Delivery and Delay in Delivery
a. Delivery dates shall only be
binding if they are expressly agreed upon as binding in writing. In the
case the parties agreed on binding delivery dates, Licensor shall only
be considered to be in delay of delivery under the following
conditions: (i) delivery is due and (ii) Licensor fails to deliver
within a reasonable extension period as granted by Licensee; and (iii)
such delay has been caused by Licensor´ fault. This shall not shift the
burden of proof as per governing law.
b. Compliance with binding
delivery dates by Licensor requires that Licensee timely and fully
comply with the terms of payment and all other obligations of Licensee.
Should these obligations not be met on time by Licensee for any reason,
the agreed delivery date shall be extended accordingly. All further
rights and legal objections of Licensor are reserved.
c. Should the non-compliance
with any agreed delivery date be attributable to force majeure, e.g.
mobilisation, war, riot or similar events, e.g. strike or lock out, the
agreed delivery date shall be extended by a period equal to the delay
caused by such force majeure event.
d. In the case that slight
negligence is causing the delay in delivery, Licensor´ liability shall
be limited to typical damages and to an amount which, upon the date of
conclusion of the respective contract, can reasonably be expected as a
possible damage by Licensor. This sum shall not exceed a maximum of 5%
of the license fee agreed for the relevant software. Licensee may
rescind the contract pursuant to the applicable statutory law, provided
Licensor is responsible for the delay in delivery. Upon request of
Licensor Licensee shall inform Licensor within reasonable time, whether
Licensee, as a result of such delay, rescinds the contract or insists
on the delivery. The before mentioned limitation of liability shall not
apply in case Licensor has caused delay with gross negligence or wilful
misconduct.
3. License Grant to Software
a. Subject to Licensee´s full
payment of all applicable license fees, Licensor grants to Licensee a
transferable (however subject to the conditions of item b. below),
nonexclusive perpetual license to use the software as follows:
- to use the software for non commercial purposes on a number of designated systems for which Licensee has paid license fees;
- to copy the software for archival or backup purposes only;
provided that no other copies shall be made without Licensor´s prior
written consent; all titles, trademarks, and copyright and restricted
rights notices shall be reproduced in all such copies; all archival and
backup copies of the software shall be subject to the terms of these
BTCs.
b. Licensee shall be entitled
to transfer the software to third parties, whether against
consideration or free of charge, provided that (i) Licensee has
completely transferred the software, any copy made hereof and related
Documentation to such third party, and (ii) such third party has agreed
to procure from Licensor, if necessary, a new authorization code after
compensating Licensor for all reasonable administrative costs incurred
by Licensor for generating such code.
c. Licensee shall not cause,
permit, or attempt the reverse engineering, disassembly or
decompilation of the software, unless permitted otherwise by §§ 69 d
and 69 e German Copyright Law (UrhG). In case any such action is
permitted by German Copyright Law, Licensee shall first approach
Licensor to request such action to be performed by Licensor against
reasonable consideration.
d. Licensor shall retain all
copyright and other proprietary rights in and to the software. Licensee
does not acquire any rights, express or implied, in the software, other
than those specified in this Section.
5. Prices, Terms of Payment
a. The agreed prices are
strictly net plus VAT and any potential costs for delivery as per Sect.
1. c. and e. of these GBTs, unless agreed otherwise in the Individual
Agreement.
b. Insofar as Licensor did not
deliver against payment in advance or cash on delivery, a term of
payment of 8 days from the date of the invoice applies.
c. Subject to the provisions in
item d. below, all payments shall be made without deduction to the
banking account identified by Licensor. Licensor accepts bills or
cheques only if beforehand agreed hereupon and only on account of
payment. Any discount or banking charges are for Licensee´s account.
d. Against Licensor´s
outstanding claims Licensee shall be entitled to set off only such
claims that are undisputed or recognized by final judgement; Licensee
may claim rights of retention only based on such claims.
e. The day of receipt of payment on Licensor´ Bank account shall be decisive for timely payment.
f. Interest due to payment delay shall amount to the rates permitted by governing law.
6. Warranty for Defects
a. Software is subject to a warranty provided by governing law, unless set forth otherwise hereinafter.
b. Licensee shall notify any
defect in writing in which notice Licensee shall specify the defect in
a comprehensible and detailed form and give all information necessary
for a defect analysis. Licensee shall specifically name all operational
steps leading to the defect, the symptoms and effects of the defect.
Licensee´s failure to comply with the above obligation does not affect
Licensee´s warranty rights.
c. To the extent necessary
Licensee shall support Licensor in the correction of defects,
specifically upon Licensor´s request send a data carrier with a copy of
the defective software.
d. Licensee understands and
accepts that – even when applying state of the art software development
techniques - software cannot be delivered so that it operates free of
defects in any and all application environments. Warranty claims of
Licensee with regard to software shall be excluded if and to the extent
the software defect is not reproducible or retraceable by machine
created reports.
e. In case Licensor is in
breach of the above warranty, Licensee may claim re-performance from
Licensor within a reasonable period of time set by Licensee. Licensor
re-performs by, at Licensor´s option,
- either delivering a new or an enhanced version of the defective software, or
- in case software is defective, delivering to Licensee patches or
bypass-solution correcting the defect after proper installation by
Licensee.
Licensor shall take the reasonable interests of Licensee in account
when exercising the option given above. Only in case the re-performance
fails or is commercially not feasible for Licensor, Licensee may,
subject to all additional requirements of applicable law, claim
reduction of the price, rescind from the agreement and/or claim
compensation of damages within the limitations of Sect. 7 of these GBTs
below. Licensee shall exercise any option which Licensee may have under
governing law within 14 calendar days at the latest.
7. Limited Liability of Licensor
a. Licensor is fully liable for
Licensee´s damage (i) caused by Licensor, its legal representatives or
its servants by intend or wilful negligence, (ii) due to strict product
liability law, (iii) concerning personal injuries caused by Licensor,
its legal representatives or its servants.
b. Licensor shall not be liable
for damages caused by slight negligence, unless caused by any breach of
essential contractual obligations. The liability for the breach of
essential contractual obligations shall be limited to typical and
predictable damages.
c. In the case of loss of data
or information Licensor is liable for the costs arising out of the
recovery of such data or information. In case of slight negligence of
Licensor this shall only apply if Licensee took adequate measures to
ensure proper data back-up just before the event causing the loss of
data occurred.
d. The provisions set forth in
item a. through c. above shall apply as well in case of claims
regarding reimbursement of expenses and any other liability claim of
Licensee.
8. General Provisions
a. All legal relations between
the parties and their conclusion shall be governed by and construed in
accordance with the laws of Germany. The provisions of the United
Nation Convention on the sale of Goods (CISG) are not applicable.
b. In the case a provision of this GBT is or becomes ineffective, the effectiveness of these GBT shall thereby not be affected.
E-Mail:
info@danholt4mac.eu
