Terms of Delivery for Software without Customisation
1. Application of the Terms of Delivery of New Solutions GmbH (hereinafter: Company)
These Terms of Business and Delivery shall only apply to contracts with customers who are not consumers within the meaning of Section 13 of the German Civil Code (BGB). They shall include any and all present and future contracts between the Company and the customer providing for the delivery of software without customization by the Company. This is the case if the delivery of the software is the price-determining part of the delivery and if the installation and configurations to be made only makes the start-up of the software possible. The customer’s general terms and conditions shall expressly not become part of the contract even if the Company does not expressly exclude them.
2. Conclusion of Contract and Payment Terms
2.1. All offers are not binding. A contract with the Company is only concluded upon the Company’s confirmation of the customer’s order in text form.
2.2. All prices are ex works, excluding packaging, plus statutory VAT as applicable from time to time. Any and all of the Company’s invoices shall be due and payable upon receipt without undue delay. The credit term, if any, specified in the invoice shall be non-binding and does not defer the due date.
2.3. If the satisfaction of the claim for payment is compromised due to a deterioration in the customer’s financial situation occurring or becoming known after the conclusion of the contract, the Company may request advance payments as well as prompt payment of all outstanding or deferred receivables or receivables which are not yet due. In these cases, the Company may retain any software ordered but not yet delivered until payment is made and stop the further execution of ongoing works under the business relationship. The Company shall have these rights also if the customer does not make payment despite a reminder constituting a delay.
2.4. The customer may assign any rights under the business relationship with the Company only with the Company’s written approval. A set-off shall only be possible with undisputed or final counterclaims.
3. Delivery and Shipment
3.1. All delivery dates specified by the Company are non-binding delivery dates unless expressly specified as binding by the management or a representative authorised in writing. If the customer requires modifications or supplements to the order after he has placed the order or if other circumstances occur which makes it impossible for the Company to adhere to the delivery date although the Company is not responsible for the circumstances, the delivery date shall be deferred for a reasonable period of time.
3.2. The Company shall be entitled to make deliveries by instalment. If the Company cannot adhere to a binding delivery date as a result of demonstrable mobilisation, war, commotion, strike or lock-out or other events for which the Company is not responsible according to general legal principles, the delivery time shall be reasonably extended.
The customer may rescind the contract if he has granted the Company a reasonable grace period after expiration of the extended period. Rescission is to be declared in text form.
3.3. The costs for shipment and transport insurance shall generally be borne by the costumer whereby the way and method of shipment shall be at the Company’s absolute discretion. The risk shall pass to the customer as soon as the goods are delivered to the carrier. The customer shall be obligated to inspect the goods without undue delay upon receipt and promptly notify the Company of any visible transport damage as well as any damaged packaging. If the Company forfeits its claims against the insurance company or the carrier because of the customer’s failure to fulfil such obligation, the customer shall be liable for any and all costs resulting from the violation of such obligation.
4.1. The Company grants the customer a non-exclusive licence in the software including documentation. The licence shall only refer to the software version in the object code as specified in the confirmation of the order. The customer may reproduce or copy the software only within the scope of the use agreed upon in the contract or if backup copies are necessary. Any reproduction or copy of the documentation or the source code requires the written approval of the Company. If the software as a whole or parts thereof are reproduced or copied, the customer has to add the copyright notice and all other notices regarding protected privileges as has been added to on the original version of the software. This shall also apply to any data storage devices. The customer may effect a reconversion or conversion into another form of expression only if indispensable due to statutory provisions.
4.2. The customer shall only be entitled to use the software within his own company for own purposes. All data processing equipment (e.g. hard disk drives and central processing units) to which the programs are totally or partially, temporarily or permanently copied or transferred have to be on the customer’s premises and in his direct possession. The licences are limited to the objects acquired in accordance with the confirmation of the order, in particular in consideration of the number of the user licences.
Upon request of the Company, the customer is obligated to notify the Company of the location where the software is used, the number of the made copies and the employees or authorised persons using the software.
4.3. The customer shall be entitled to make backup copies of the programs as required for the safe operation of his business. The backup copies have to be kept safe and provided with the copyright notice of the original data storage device if technically possible. Copyright notices must not be deleted, changed or eliminated. Any copies no longer needed have to be deleted or destroyed. The user manual and other documents delivered by the Company may only be copied for internal purposes.
4.4. The customer shall be entitled to hand out the software or parts thereof to third parties only in accordance with the following provisions and after completion of the following processes:
a. Only one original data storage device may be handed out. Other software or another version of the software must not be handed out.
b. The customer shall delete all other copies of the software (irrespective of the version), stored in particular on data storage devices and in read-only or main memory. He definitely abandons the use. He undertakes to complete the processes before handing out the original data storage device to a third party and to confirm the completion of such processes to the Company in writing without undue delay.
c. The hand-out to the third party shall be permanently, i.e. without a claim for return or option for repurchase.
d. The third party shall declare in writing to the Company that he will comply with the General Contract Terms of the Company, these licences as well as the obligation of secrecy pursuant to clause 8.
e. The written approval of the Company has been given. The Company is obligated to give its approval if there exist no material reasons (e.g. non-compete) against it.
If the customer violates these provisions, the Company shall be entitled to a contractual penalty in the amount of half of the sum the third party would have to pay for the software to the Company at that time according to the updated price list, but not less than half of the purchase price agreed upon today.
4.5. The provisions pursuant to clauses 4.1, 4.2, 4.3, 4.4.d and 4.4.e shall also apply if the customer corrects errors or (to the extent permissible) otherwise edits the program or uses the software for training purposes.
4.6. The customer may decompile the interface information of the programs only within the limits of Section 69e of the German Copyright Act (UrhG) and only if he has notified the Company of his intention in writing and asked for the delivery of the required information with a notice period of at least two weeks.
The following obligation of secrecy (clause 8) shall apply to all knowledge and information obtained by the customer within the scope of the decompiling. Before involving a third party, the customer shall obtain and submit to the Company a written declaration of the third party to the extent that such third party undertakes to observe these licences as well as the following obligation of secrecy pursuant to clause 8 directly vis-à-vis the Company.
4.7. All other uses, including but not limited to the lease, lending and distribution in tangible or intangible form, use of the software by third parties (e.g. outsourcing, data centre operations, application service providing) shall not be permissible without prior written approval of the Company.
5. Reservation of Title and Licence
5.1. Title to the data storage devices as well as any and all licences in the delivered software including documentation shall remain with the Company until full payment of all receivables resulting from the delivery.
5.2. The customer is not entitled to dispose of the data storage devices subject to the reservation of title or to assign the licences. In case of a seizure or attachment, the customer has to notify the Company without undue delay in writing and promptly advise third parties of the reservation of title by the Company in an adequate form. The customer shall only have a preliminary, revocable licence until full payment has been made.
5.3. If the customer is in default with the payment, the Company shall be entitled to rescind the contract and claim the return of the software as well as to request the customer to stop the further use of the software after it has set a time limit before to the extent required by statutory provisions. Any further claims of the Company, including but not limited to claims for damages, in addition to the rescission shall remain unaffected thereby. The customer is obligated to return the original version as well as to return or destroy any and all copies thereof.
6. Removal of Defects
6.1. For the period of twelve months as from the day of the delivery of the software, the Company warrants that the delivered software is free of defects in material or coding when it is started up and that it works in accordance with the accompanying user manual, if any. The shortening of the statutory warranty period shall not apply if the Company or one of its vicarious agents has fraudulently concealed the defect.
6.2. The customer is aware that software products are being permanently further developed and bugs may occur. Bugs do not constitute a defect of the software if the bug is not the result of an error in the coding of the software at the time of delivery or a defective data storage device of the Company.
6.3. If errors occur in the installation or operation of the program during the warranty period, the Company is to be notified without undue delay. The Company shall then inspect the error upon receipt of the notice without undue delay and alternatively make substitute delivery or remove the defect in case of a justified notice of defects. For purposes of supplementary performance, the customer has to provide the Company with all required information on the previous use and operation of the program and enable the Company to access the program on site or via the internet. Due to the complexity of the software programming, the Company shall have several, at least two, attempts to make supplementary performance depending on the kind of defect. Supplementary performance shall be deemed to have failed only if the software does not properly work because of the defect despite the attempts to make supplementary performance as well as the expiration of a reasonable grace period set in writing by the customer.
6.4. Any further warranty, in particular that the software is fit for the customer’s purposes outside the product specifications shall expressly be excluded unless the management or a representative authorised in writing has expressly assured the specific use or fraudulently concealed the error.
6.5. The delivery of the user manual in the English language shall be generally permissible unless the object of the contract has already been fully developed for the respective market.
7. Limitation on Liability
7.1. In case of an injury to life, body or health as well as pursuant to the German Product Liability Act (ProdhaftG) as well as in case of the intentional violation of an obligation by the Company or its vicarious agents or representatives, the Company shall be fully liable in accordance with statutory provisions.
7.2. In all other cases the Company’s liability shall be limited to the typical, foreseeable damage. If the Company, its vicarious agents or representatives are accused only of a minor negligent violation of obligations, the Company shall only be liable in case of a violation of material contractual obligations for the typical, foreseeable damage.
7.3. Any liability for damage caused by the delivered object to other objects of legal protection of the customer, e.g. damage to other things, shall fully be excluded unless clause 7.1 applies or the Company, its vicarious agents or representatives are accused of gross negligence.
7.4. If claims under the liability for defects pursuant to clause 6.1 or for a violation of obligations pursuant to clauses 7.1-7.3 are asserted against the Company, the customer’s contributory negligence is reasonably to be taken into consideration, in particular in the case of an insufficient notice of the defects or data back-up.
An insufficient data back-up particularly exists if the customer failed to take adequate, state of the art safeguarding measures against external hazards, including but not limited to computer viruses and other phenomena jeopardising individual data or the entire data set.
7.5. The provisions above do not shift the burden of proof to the customer.
8.1. Any objects of the contract, documents, proposals, test programs, etc. of the Company made available to the customer before or after the conclusion of the contract shall be deemed to be intellectual property and trade and business secrets of the Company. They may not be used in any way without the written permission of the Company and have to be kept secret in accordance with clause 8.2.
8.2. The contracting partners undertake to keep secret any and all data of the other contracting partner (e.g. software, documents, information) which is legally protected or contains trade and business secrets or which is marked as confidential and which they receive or obtain knowledge of prior or upon the execution of the contract even after the termination of the contract unless such data is publicly known without this obligation of secrecy having been violated. The contracting partners will keep and safeguard the data by excluding any access by third parties.
The customer shall make available the objects of the contract only to employees and other third parties who require access to them for carrying out their official duties. He will advise such persons of the confidential nature of such objects.
The Company and the customer mutually undertake to keep secret any and all trade and business secrets of the other party for an indefinite period of time and not to disclose them to third parties or use them in any other way. Any documents, drawings and other information obtained by the other contracting partner due to the business relationship may only be used by it within the scope of the corresponding contractual purpose.
9. Place of Performance and Place of Jurisdiction
If the customer is an entrepreneur within the meaning of the German Commercial Code (HGB), a legal person under public law or special funds under public law, the Company’s place of business (head office Burghausen/Germany) shall be agreed upon as place of performance and place of jurisdiction for all disputes resulting from this contractual relationship. The Company shall be entitled to file an action at the customer’s head office.
10. Protected Privileges
Without the Company’s express approval, the customer is not allowed to export the goods purchased from the Company to countries outside the European Community. The customer has additionally to comply with any and all relevant export regulations, in particular those resulting from the German Foreign Trade and Payments Ordinance (AWV) as well as regulations pursuant to US law, if applicable.
11.1. These General Terms and Conditions shall exclusively be subject to German law without giving effect to the UN Sales Convention.
11.2. Should any provision of these General Terms and Conditions be or become totally or partially invalid, the validity of the remaining provisions shall not be affected thereby.
11.3. Collateral agreements and amendments hereto may only be entered into and agreed upon with the management or a representative authorised in writing.
|New Solutions GmbH
Business Center Burghausen
Marktler Strasse 61
|local court: Altötting/Germany
regional court: Traunstein/Germany
registration court: Traunstein/Germany