Software Cession and Maintenance Contract
CFturbo Software & Engineering GmbH
Unterer Kreuzweg 1, 01097 Dresden (Germany)
- hereinafter designated the 'Licensor' -
the CFturbo user
- hereinafter designated the 'User' -
§ 1 LICENSE AGREEMENT
By virtue of this agreement, the User acquires from the Licensor the non-transferable and non-exclusive right to use the software 'CFturbo' (hereinafter designated the 'Software') for a period of time, in exchange for the licence fee agreed between the Licensor and the User.
1. Licence Object
The User acquires a nodelocked license or a license for one local office network (LAN) at one distinguished location of the company.
The program package consists of a data medium (CD-ROM or DVD) with the Software and a user manual in the form of a PDF file. In the event that the Software was downloaded from the official website of the Licensor, the program package consists of the corresponding installation file including electronic documentation.
2. Duration / commencement of the licence
The User obtains the right to use the Software. The right is obtained after the payment of the full licence fee and implicitly expires at the end of the arranged time period.
4. Right of Use
(1) In accordance with this contract, the Licensor grants the User a right of use to the Software described under 1. as well as a right to use the necessary printed matter and documentation. The printing-out of the manual for the purposes of working with the Software is permitted.
(2) The User may duplicate the Software only insofar as the duplication in question is necessary for the use of the Software. Necessary reasons for duplication notably include the installation of the Software from the original data medium onto the mass storage of the hardware used, as well as the loading of the Software into the RAM memory.
(3) The User is entitled to perform duplication for backup purposes. However, in principle, only a single backup copy may be created and stored. The backup copy must be labelled as being a backup copy of the ceded Software.
(4) If, for reasons of data security or the assurance of a fast reactivation of the computer system after a total failure, the regular backing-up of the entire dataset including the computer programs used is essential, then the User may create the number of backup copies which are compulsorily required. The data media concerned must be labelled accordingly. The backup copies may only be used for purely archival purposes.
(5) The User is obliged to take appropriate measures to prevent the unauthorized access of third parties to the program including its documentation. The supplied original data media, as well as the backup copies, must be stored in a location protected against the unauthorized access of third parties. The employees of the User must be explicitly encouraged to observe these contractual conditions as well as the provisions of copyright law.
(6) Additional duplications, also including the printing-out of the program code on a printer, must not be created by the User. The copying and the handover or transfer of the user manual to third parties is not permitted.
5. Multiple Use and Networks
(1) The User may use the Software on any hardware available to him, provided that this hardware is appropriate for the use according to the Software documentation. In the event of changing the hardware, the Software must be erased from the previously used hardware.
(2) The simultaneous reading in, storage or use on more than one hardware device is not permitted unless the User has acquired multiple-use licences or network licences. Should the User wish to use the Software on multiple hardware configurations at the same time, for example to permit the use of the Software by several employees, he must purchase the corresponding number of licences.
(3) The use of the ceded Software on different computers on a network or another multiple-workstation computer system is permitted, provided that the User has purchased multiple-use licences or network licences. If this is not the case, the User may only use the Software on a network if he prevents simultaneous multiple use by means of access protection mechanisms.
6. Program Modifications
(1) The disassembly of the ceded program code into other code forms (decompilation) as well as other types of reverse-engineering of the different manufacturing stages of the software, including a modification of the program, is not permitted.
(2) The removal of the copy protection or similar protection mechanisms is not permitted. Insofar as the trouble-free use of the program is impaired or hindered by one of the protection mechanisms, the Licensor is obliged to remedy the fault on an appropriate request. The User bears the burden of proof of the impairment or hindrance of trouble-free usability as a result of the protection mechanism.
(3) Copyright notices, serial numbers and other marks used for program identification purposes must in no event be removed or modified. This also applies to the suppression of the screen display of such marks.
7. Resale and Leasing
Resale and leasing of the Software or other cession of the Software to third parties is only permitted with the written agreement of the Licensor.
(1) The Licensor makes no warranty with respect to the performance of the Software or the obtained data and the like. He grants no guarantees, assurances or other provisions and conditions with respect to the merchantability, freedom from defects of title, integration or usability for specific purposes, unless they are legally prescribed and cannot be restricted.
(2) Defects in the ceded software including the user manuals and other documents must be remedied by the Licensor within an appropriate period of time following the corresponding notification of the defect by the User. The defect is remedied by free-of-charge improvements or a replacement delivery, at the discretion of the Licensor.
(3) For the purposes of testing for and remedying defects, the User permits the Licensor to access the Software via telecommunications. The connections necessary for this are established by the User according to the instructions of the Licensor.
(4) A right of cancellation of the User due to the non-granting of use according to § 543 para. 2 clause 1 no. 1 of the Civil Code is excluded insofar as the improvement or replacement delivery is not to be regarded as having failed. Failure of the improvement or replacement delivery is only to be assumed if the Licensor was given sufficient opportunity to make the improvement or replacement delivery.
(5) Furthermore, the statutory regulations also apply.
(1) The claims of the User for compensation or replacement of futile expenditure conform, without regard to the legal nature of the claim, to the existing clause.
(2) In the Software, it is a question of a design procedure. It is considered to be purely an approximation method. The Licensor is not liable for the functioning of the data obtained in practice, for the manufactured prototypes or components, or for possible consequential damages resulting therefrom.
(3) The Licensor is liable for damage involving injury to life and limb or to health, without limitation, insofar as this damage is the result of a negligent or intentional breach of obligation on the part of the Licensor or one of his legal representatives or vicarious agents.
(4) Otherwise, the Licensor is liable only for gross negligence and deliberate malfeasance.
(5) Liability for consequential damages due to defects is excluded.
(6) The above regulations also apply in favour of the employees of the Licensor.
(7) The liability according to the Product Liability Act (§ 14 ProdHaftG) remains unaffected.
(8) The liability of the Licensor regardless of negligence or fault for defects already existing on entering into the contract according to § 536 a para. 1 of the Civil Code is expressly excluded.
10. Inspection Obligation and Notification Obligation
(1) The User will inspect the delivered Software including its documentation within 8 working days after delivery, in particular with regard to the completeness of the data media and user manuals as well as the functionality of the basic program functions. Defects determined or detectable hereby must be reported to the Licensor within a further 8 working days by means of a registered letter. The defect notification must contain a detailed description of the defects.
(2) Defects which cannot be detected in the context of the described appropriate inspection must be reported within 8 working days of their discovery with observance of the notification requirements specified in paragraph 1.
(3) In the event of the violation of the inspection and notification obligation, the Software is considered to be approved with regard to the defect concerned.
11. Intellectual Property, Copyright
The Software and all the authorized copies of this Software made by the User belong to the Licensor and are the intellectual property of the latter. The Software is legally protected. Insofar as it is not expressed stated in this contract, the User is granted no ownership rights to the Software, and all rights not expressly granted by means of this contract are reserved by the Licensor.
(1) At the end of the contractual relationship, the User is obliged to return all of the original data media as well as the complete documentation, materials, and other printed matter ceded to him. The program and its documentation must be delivered to the lessor free of charge.
(2) The appropriate return also includes the complete and final deletion of all installation files and online documentation, as well as any copies that may exist.
(3) The Licensor may dispense with the return and order the deletion of the program and the destruction of the documentation. If the Licensor exercises this elective right, he will explicitly inform the User to this effect.
(4) The User is expressly advised that, after the end of the contractual relationship, he may not continue to use the Software and, in the event of non-compliance, is violating the copyright of the copyright holder.
§ 2 SOFTWARE MAINTENANCE
The Licensor performs the maintenance and upkeep of the Software modules included in this contract under the following conditions. The maintenance of computer hardware is not the subject matter of this contract.
1. Scope of the maintenance obligation
(1) The contractual maintenance measures include:
a) The provision of the respectively newest program versions of the Software modules named under § 1 no. 1 as free-of-charge downloads. The Software is installed by the User.
b) The updating of the Software documentation. Insofar as a significant change to the functional scope or operation of the software occurs, completely new documentation will be provided.
c) On the expiration of the defect liability period resulting from the Software cession contract, the remedying of defects both in the program code and in the documentation.
d) Both the written (also by fax or e-mail) and telephone advising of the customer in the event of problems regarding the use of the Software as well as any program errors that may need to be recorded.
e) The telephone advice service ('hotline') is available to customers on working days between 9.00 a.m. and 4.00 p.m. (CET).
f) Defects reported in writing or requests for advice are answered no later than the afternoon of the working day following their receipt. As far as possible, this occurs by telephone for reasons of speed. The customer must therefore add the name and direct-dial telephone number of the responsible employee to every written message. For defect reports or requests for advice sent by e-mail, the answer may also be given by e-mail.
(2) The following services, among others, are not included in the contractual maintenance services of the contractor:
a) Provision of advice outside of the working hours specified under § 2 para. 1 letter e).
b) Maintenance services which become necessary due to the use of the Software on an inappropriate hardware system or with an operating system not approved by the Licensor.
c) Maintenance services which become necessary due to the use of the Software on another hardware system or with another operating system.
d) Maintenance services after interference of the customer with the program code of the Software.
e) Maintenance services with respect to the interoperability of the Software which is the subject matter of the contract with other computer programs which are not the subject matter of the maintenance contract.
f) The remedying of faults and damage caused by incorrect use by the User, the influence of third parties or force majeure events.
g) The remedying of faults and damage caused by environmental conditions at the setup location, by defects in or absence of the power supply, faulty hardware, operating systems or other influences not attributable to the Licensor.
(1) If the User has acquired the Software for a limited period of time, then the payment for the maintenance has already been effected in full with the payment of the licence fee.
(2) In the event of a right of use for an unlimited period of time, the first twelve months of maintenance are included in the licence fee. In the following period, the annual maintenance fee can be found in the enclosed price table. The Licensor is entitled to adjust the maintenance fee on an annual basis in accordance with the general trend of prices. If the increase in the maintenance fee amounts to more than 5%, the customer may cancel the contractual relationship.
3. Duration of the Contract
In the case of a time-limited right of use, maintenance contract ends with the expiration of the right of use of the Software.
In the case of a time-unlimited right of use:
the maintenance contract is extended after the first twelve months by a further twelve months respectively, unless the User opposes this in writing to the Licensor within a period of 3 months prior to the expiration.
the User may demand, after the first twelve months, a continuation of the maintenance contract by a further 12 months respectively up to the date of the expiration of the contract. The demand must be made in writing.
4. Cooperation Obligations
(1) In the transcription, containment, determination and reporting of defects, the customer must follow the instructions issued by the Licensor.
(2) The customer must specify its defect reports and questions as accurately as possible. In doing so, he must also make use of competent employees.
(3) During the necessary test runs, the customer is personally present or seconds competent employees for this purpose, who are authorized to pronounce and decide on defects, functional expansions, functional cutbacks and modifications to the program structure. If necessary, other work involving the computer system must be discontinued during the time of the maintenance work.
(4) The customer grants the Licensor access to the Software via telecommunications. The connections necessary for this are established by the customer according to the instructions of the Licensor.
(1) The Licensor is liable only for deliberate malfeasance and gross negligence and also that of his legal representatives and managerial staff. For the fault of miscellaneous vicarious agents, the liability is limited to five times the annual maintenance fee as well as to such damage the arising of which is typically to be expected in the context of software maintenance.
(2) The liability for data loss is limited to the typical data retrieval expenditure which would have come about in the regular preparation of backup copies in accordance with the risks.
§ 3 MISCELLANEOUS AGREEMENTS
1. Conflicts with Other Terms of Business
Insofar as the User also uses General Terms of Business, the contract comes about even without express agreement about the inclusion of General Terms of Business. Insofar as the different General Terms of Business coincide with respect to their content, they are considered to be agreed. The regulations of the anticipated law replace any contradictory individual regulations. This also applies to the case in which the Conditions of Business of the User contain regulations which are not contained in the framework of these Conditions of Business. If the existing Conditions of Business contain regulations not contained in the Conditions of Business of the User, then the existing Conditions of Business apply.
2. Written Form
All agreements which contain a modification, addition or substantiation of these contractual conditions, as well as specific guarantees and stipulations, must be set down in writing. If they are declared by representatives or vicarious agents of the Licensor, they are only binding if the Licensor has granted his written consent to them.
3. Notice and Cognizance Confirmation
The User is aware of the use of the existing General Conditions of Business on the part of the Licensor. He has had the opportunity to take note of their content in a reasonable manner.
4. Election of Jurisdiction
In relation to all of the legal relations arising from this contractual relationship, the parties agree to apply the law of the Federal Republic of Germany, with the exception of the United Nations Convention on Contracts for the International Sale of Goods.
5. Place of Jurisdiction
For all disputes arising in the context of the execution of this contractual relationship, Dresden is agreed to be the place of jurisdiction.
6. Severability Clause
Should one or more of the provisions of this contract be ineffective or void, then the effectiveness of the remaining provisions remains unaffected. The parties undertake to replace the ineffective or void clauses with legally effective ones which are as equivalent as possible to the originally intended economic result. The same applies if the contract should contain a missing provision which requires addition.