GENERAL DELIVERY TERMS OF FIDES DV-PARTNER GMBH
1.1 FIDES DV-Partner GmbH (in the following FIDES) develops specialist software for civil engineers and markets them as well as third party software. The following terms apply to contracts concluded with FIDES concerning the supply of software (see license agreement).
1.2 Any provisions deviating from, or conflicting with, these terms and conditions, in addition to any standard terms and conditions used by the customer, shall not form part of any contract concluded between the customer and FIDES, unless FIDES expressly agrees to such terms.
2. DUTIES OF FIDES
2.1 This contract concerns the software identified in the Software Supply and License Agreement, possessing the relevant features in accordance with the user documentation which was valid at the time the contract was concluded.
2.2 In supplying the software the duties of FIDES are:
In supplying the software, FIDESís duties are restricted to the provision of the program for transfer onto one or several the computers, the delivery of a soft-lock or hardware lock, the user documentation relating to the program in .pdf format, and the granting of a non-exclusive right of utilization. FIDES shall be under no obligation to provide further services, including, in particular, tasks relating to installation, consultation, training, maintenance and other duties concerning the configuration, use, and support of the software. However, the relevant services can be separately provided by FIDES at an extra cost (see also software service contract). FIDES shall be entitled to subcontract the performance of these extra services, in particular the installation of the software, to third parties, including specialist dealers in the customerís locality.
2.3 The source code of the software will not be made available.
2.4 FIDES points out that software programming cannot be guaranteed to be error free.
2.5 FIDES advises the customer that the latter may, through incorrect use of the software, cause errors in calculations being conducted by the software. It is not certain that all operating errors will be identified by the software. Therefore, the customer should, in every case, verify the results of calculations undertaken by the software, at least in an approximate manner on a random basis.
2.6 FIDES furthermore advises that the software is developed for certain operating systems (MS-Windows), where FIDES does not pay attention during development to adapt the software to each of the current operating system versions. Even though, according to the experiences FIDES made, older as well as newer operating systems may run the software, errors when using the software can occur, which cannot be foreseen or traced during development. The customer is responsible to carefully read the product description and/or user documentation of the software or ask FIDES which operating system the software is compatible with.
3. USAGE PERIOD; PURCHASE OPTION; RETURN; TERMINATION
3.1 Perpetual usage (software purchase)
Unless agreed otherwise, FIDES shall provide the software to the customer for his use on a permanent basis.
3.2 Temporary usage (software rental).
Where FIDES provides the customer with the software for use on a temporary basis, the right of utilization of the software shall commence upon the conclusion of the Software Supply and License Agreement and shall continue for an undetermined time. The customer may terminate the software rental agreement after a minimum period of 3 months rental, the notice needs to be given 6 weeks before the end of each quarter. The notice needs to be in written.
3.3 Purchase option
In case of an agreement under the antecedent conditions (see 3.2.) FIDES may grant the customer the right to purchase the software. The customer needs to inform FIDES about the purchase intention within the agreed rental period in written. If this is the case, the customer purchases the software effective to the following months the written statement was received by FIDES.
3.4 Trial version
FIDES grants he customer the right of trying the software for 3 months.
3.5 Return Termination
In case of an agreement of software rental according to 3.2 or a trial version acc. to 3.4 the customer is not entitled to continue to use the software after the expiration of the agreed upon period. If received, the customer shall return the hardware locks. The return also encompasses the entire and definite deleting of any applicable software copies. The customer will be advised, that in case he continues to use the software after the termination of the agreed upon period will constitute an infringement of FIDESís and/or the other software vendors copyright.
3.6 Contractual penalties
If the customer is responsible for culpable failing to return a hardware key pursuant to section 3.5 for more than eight (8) weeks, in addition to the monthly license fee in accordance with section 7.2 of these terms and conditions, he shall pay a contractual penalty corresponding to the amount of a perpetual usage according to 7.1 of this document.
4. USAGE RIGHTS; CUSTOMERíS DUTY OF CARE
4.1 FIDES grants the customer the non-exclusive right to use the object code of the software, in accordance with the following provisions, for the duration of the period mentioned above in section 3. No further rights are granted in connection with the supply of the software. FIDES or the software vendor reserves the right to distribute, exhibit, present and publish the software.
4.2 The customer is entitled to use the software on more than one item of hardware; however, the maximum number of workstations as agreed in the Software Supply and License Agreement must not be exceeded. By supplying soft keys and/or hardware locks in correspondences to the agreed upon seats FIDES thereby secures that the customer is only entitled to use the amount of agreed upon licenses.
4.3 The customer shall be entitled to make copies of the software, to the extent that each copy is necessary for the use of the software. Necessary copying includes the installation of the software from the original data storage system onto the mass storage devices being used, as well as the loading of the program into the computerís primary storage.
4.4 The customer may create back-up copies of the software, to the extent which is necessary in order to secure the future use of the software in accordance with the contract. The customer shall not be entitled to copy the software for purposes other than those mentioned above. This restriction shall also apply to the copying of parts of the software, as well as the copying of the user documentation − either as a whole or parts thereof − unless such reproductions are absolutely necessary to enable third parties to examine the results of calculations undertaken with the assistance of the software
4.5 The customer shall adopt appropriate measures to prevent unauthorized access to the software. The original data storage medium provided by FIDES, as well as any back-up copies which are made, shall be kept in a location secure from unauthorized access by third parties. The customerís employees are to be expressly and clearly informed of the necessity of complying with the contractual terms set out above as well as the provisions of copyright law.
4.6 As far as FIDES delivers third party software, unless otherwise agreed upon, the license conditions for those vendors are valid.
5. DECOMPILATION AND PROGRAM CHANGES; HARDWARE LOCK
5.1 The customer shall not translate the program code into other forms of code (decompilation) or employ other methods aimed at revealing the software's code in the various stages of its development (reverse engineering).
5.2 In case of damage, theft or other disappearance of the hardware lock, the customer is not entitled to a replacement by FIDES, unless FIDES is responsible for the loss. In case the hardware lock delivered by FIDES is defective, accordance to section 11 of this document, the warrantees of the customer remain untouched.
5.3 The customer is not entitled to remove or make alterations to copyright notices, serial numbers, or other features which serve to identify the software.
6. TRANSFER OF THE SOFTWARE
6.1 In the case of the software being purchased in accordance with section 3.1 or 3.3 of these terms and conditions, the customer shall be permitted to make the software available to a third party on a permanent or temporary basis if this third party agrees in written to FIDES with the terms and conditions stated in this document and if the original customer hands out any copies to the third party or deletes them from their own data storage system. By handing out the software to the third party the original customer is no longer entitled to continue to use the software. The customer notifies FIDES of the name and the full address of the third party.
6.2 If the customer uses the software according to 3.2 (temporary use; software rental),the customer is not entitled to transfer neither the software nor the documentation to third parties for commercial use, be that for purpose of use, rent or sale.
7. LICENSE FEE
7.1 In the case of a software purchase, pursuant to section 3.1 of these terms and conditions, the customer shall pay FIDES or the designated software dealer a one-time license fee as agreed under the Software Supply and License Agreement according to the conditions designated in the placed order (offer / order) or in accordance with the FIDES price list valid at the time of the order. The license fee shall be paid at the time the contract is signed.
7.2 In case of software rental in accordance to section 3.2., the customer shall pay to FIDES or the designated dealer a monthly usage fee for the software according to the price list valid at the time of the order. The monthly usage fees will be invoiced per quarter.
7.3 In case the customer agrees to a software buying option according section 3.3 of these terms and conditions, the rental quotas of the software paid until the purchase will be reduced to the attributable portion of the fees stated in section 7.1, according to the then valid FIDES price list.
7.4 Unless otherwise agreed, the quoted FIDES prices exclude the currently valid VAT. The VAT will additionally be charged to the customer at the currently valid quota.
7.5 Any invoices received by FIDES shall be paid within 10 days after receipt.
8. VALIDITY OF THE RIGHTS OF USE GRANTED
8.1 If the customer is to pay a one-time license fee in consideration of being granted the right to use the software in accordance with the provisions of sections 3.1 and 4 of these terms and conditions, such a right shall only become valid once the customer has paid the agreed amount in full.
8.2 If the customer is to pay a monthly usage fee as stated in section 3.2 and 4 of this document, the usage rights only remain valid, if the customer pays the agreed sum in total.
9. RETENTION OF TITLE
9.1 If the customer acquires the software delivered to him by FIDES in accordance with section 3.1 or 3.3 above, title to the software shall remain vested in FIDES until the contractually agreed license fee has been paid in full, in accordance with section 7 above
9.2 In the case of late payment or other material breach of the contract by the customer, FIDES shall be entitled to demand the return of the software to which title has been retained, even if FIDES does not withdraw from the contract.
10. RIGHT OF SET-OFF AND RETENTION
10.1 The customer shall only be entitled to set-off claims against amounts due to FIDES if such claims are not contested by FIDES or have been declared to be legally binding.
10.2 The customer shall only exercise a right of retention if the claim relates to the same contractual relationship.
11.1 Warranty relating to software purchase (Section 3.1)
11.1.1 The limitation period for all warranty claims shall be 12 months commencing with the supply of the software. This is not valid for defects guilefully disclosed by FIDES.
11.1.2 The customer shall examine the software immediately upon delivery and shall report any defect without delay. In the event of patent defects, the warranty shall only apply if FIDES is notified of such defects within a period of 14 days following delivery. This does not apply to defects which have been guilefully disclosed by FIDES.
11.1.3 If the software is revealed to be defective, FIDES shall be provided with the opportunity − on repeated occasions if required by the circumstances − to remedy the defect either through the rectification of the fault (repair) or replacement of the software. FIDES shall decide at its sole discretion whether to repair or replace the software
11.1.4 If FIDES refuses to remedy the defect, or in the event that the attempt to remedy the defect is unsuccessful, or if the remedy is unreasonable for the customer, the customer can decide either to demand a reduction in the license fee or to withdraw from the Software Supply and License Agreement. Any claims for damages by the customer shall remain unaffected, in accordance with section12 below.
11.1.5 Other than those expressly mentioned in these terms and conditions, FIDES gives no warranties or guarantees either express or implied.
11.2 Warranty relating to software rental (section 3.2)
11.2.1 Defects in the supplied software shall be remedied within a reasonable time following the notification of such defects being given to FIDES by the customer.
11.2.2 The right to terminate the contract due to inability of use of the software is excluded, unless the rectification or replacement of the software could not be fulfilled by FIDES.
12.1 In cases of ordinary negligence FIDESís liability shall be limited to the breach of contractual obligations which are material to the contract (cardinal obligations). Furthermore, the amount of damages shall be limited to those losses which are generally foreseeable in connection with the supply of software. Cardinal obligations are those obligations for which the fulfillment is essential to the proper implementation of the contract as a whole, and the contractual partner may depend upon their fulfillment. The pre-contractual, contractual and non-contractual liability of FIDES is limited to cases of intent and gross negligence. The liability for loss of data shall be restricted to typical recovery expenses which would have arisen if regular back-up copies had been made commensurate with the risks associated with the loss of such data. The above limitations of liability shall also apply where FIDES is vicariously responsible for its employees and agents. The limitations of liability shall not apply to liability resulting from injury to the life, body or health of a person. For such damage FIDES shall also be liable in cases of ordinary negligence, and the amount of damages shall not be limited. The liability of FIDES under the German Product Liability Law (Produkthaftungsgesetz) remains unaffected by these terms and conditions.
12.2 Any claims for damages by the customer relating to defects in the supplied software shall be subject to a limitation period of 12 months. This does not apply to defects which have been intentionally concealed by FIDES.
13. FINAL REGULATION / MISCELANEOUS
13.1 If the customer operates a business, the legal venue for all disputes arising from or in connection with these terms and conditions is Munich/Germany. If the customer operates a business, the place of performance for all duties and obligations arising from contracts between FIDES and the customer shall be the registered office of FIDES.
13.2 Agreements between FIDES and the customer shall be exclusively governed by German law; the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
13.3 If any provision of these terms and conditions is, or later becomes, invalid, the validity of the remaining provisions shall remain unaffected. Instead of the invalid regulations, rules which are closest to the ones both contractual parties wished to follow - had they been considered - will take effect. Analogically is valid for hiatuses in these terms and conditions.