General Terms and Conditions of Delivery of FIDES DV-Partner GmbH
- FIDES DV-Partner GmbH (hereinafter: FIDES) develops specialised software for civil engineers and distributes this software as well as software from third parties. The following provisions apply to all contracts concluded with FIDES for the provision of software (see licence agreement).
- Deviating, conflicting or supplementary pre-formulated terms and conditions of the customer shall not become part of the contract unless FIDES expressly agrees to their validity.
Obligations of FIDES
- The subject matter of the contract is the software specified in the licence agreement in accordance with the user documentation applicable at the time the contract is concluded.
- In the event of doubt, FIDES’s obligations to provide the software are limited to the provision of the programme on one or more data carriers suitable for transfer to the computer, to the provision of a soft key or a hardware dongle, to the delivery of the user documentation belonging to the programme in pdf format and to the granting of a non-exclusive right of use. FIDES is not obliged to provide other services, in particular installation, consulting, training, maintenance and other services that serve to commission, use and maintain the software. Corresponding services can be ordered from FIDES for a separate fee (see also Software Service Contract). FIDES is authorised to have corresponding services carried out by third parties, e.g. the update and hotline service of the software by the software manufacturer or the installation of the software by local specialist dealers.
- The source code on which the software is based is not provided.
- FIDES would like to point out that software programmes cannot be created without errors.
- FIDES would like to point out that errors in the calculations performed by the software can also be caused by the user. It is not guaranteed that all operating errors made by the customer can be intercepted by the software. The calculation results produced by the software must always be checked by the customer at least roughly and on a random basis.
- FIDES also points out that its software is developed for specific operating systems (MS Windows), whereby FIDES takes care to adapt the software to the current operating systems when creating the software. Although, in FIDES’ experience, the software can also be used with newer or older versions of current operating systems, this can lead to problems in the operation of the software that cannot be recognised in advance and cannot be traced. The customer is obliged to inform himself in the product description and/or the user documentation of the software or from FIDES as to which operating systems the software is compatible with in each case.
Useful life; purchase option; cancellation; return
- Unless otherwise agreed, FIDES shall transfer the software to the customer for permanent use.
- If FIDES grants the customer temporary use of the software, the customer is entitled to use the software for an indefinite period. The customer may terminate the software licence agreement at the end of a minimum contract term of 3 months from the conclusion of the contract with a notice period of 6 weeks to the end of each quarter. The cancellation must be in writing.
- Purchase optionIn the event of the agreement of a transfer for use in accordance with Section 3.2 above, FIDES grants the customer the right to purchase the software on a permanent basis. The customer must notify FIDES in writing of the intention to purchase within the duration of the transfer of use. In this case, the customer acquires the software with effect from the month following receipt of the declaration by FIDES.
- Trial versionFIDES will provide the customer with the software for trial use for 3 months on request.
- Return; deletionIn the event of an agreement on a temporary transfer of use in accordance with Section 3.2 or a transfer on a trial basis in accordance with Section 3.4, the customer is no longer authorised to continue using the software after the end of the period of use. The customer is obliged to return the hardware dongle (if received). The obligation to return the software also includes the complete and final deletion of all existing copies of the software. The customer is advised that if he continues to use the software after the end of the period of use, he is infringing the copyright of FIDES or the software manufacturer.3.6 Contractual penaltyIf the customer is culpably more than 8 weeks in arrears with the return of the hardware dongle in accordance with section 3.5, the customer must pay a contractual penalty in addition to the monthly usage fee (section 7.2) in the amount of the fee for unlimited use in accordance with section 7.1
Licence conditions; rights and obligations of the customer
- FIDES grants the customer the simple, non-exclusive right to use the software in object code in accordance with the following provisions of this contract for the period agreed on the basis of the above Section 3 of the General Terms and Conditions of Delivery. No granting of rights beyond these provisions is associated with the transfer of the software. In particular, FIDES or the software manufacturer reserves all distribution, exhibition, demonstration, performance and publication rights to the software.
- The customer is authorised to use the software on more than one piece of hardware, provided that the customer complies with the agreed maximum number of simultaneous uses. By supplying soft keys or hardware dongles corresponding to the agreed number of workstations, FIDES ensures that the software is only used by the customer within the agreed scope of the licence.
- The customer may reproduce the software insofar as the respective reproduction is necessary for the use of the software. The necessary duplications include the installation of the software from the original data carrier to the memory of the hardware used and the loading of the programme into the working memory.
- Insofar as this is necessary to secure the future use of the software in accordance with the contract, the customer may also make a backup copy of the software. Otherwise, the customer is not authorised to make copies. This also applies to the duplication of parts of the software and to the – complete or partial – duplication of the user documentation, unless the duplication is absolutely necessary for the verification of calculation results – determined with the help of the software – by third parties.
- The customer is obliged to take suitable precautions to prevent unauthorised access to the software. The original data carriers supplied and backup copies must be stored in a place secured against unauthorised access by third parties. The customer’s employees must be expressly instructed to comply with these contractual conditions and the provisions of copyright law.
- Insofar as FIDES supplies software that it has not developed itself, the licence conditions of the respective developer also apply to this software, unless the parties have agreed otherwise.
Decompilation and programme changes; hardware dongle
- The retranslation of the programme code into other code forms (decompilation) and other types of reverse engineering of the various production stages of the software are not permitted.
- In the event of damage, theft or other loss of the hardware dongle, the customer cannot demand a replacement delivery from FIDES. This does not apply if FIDES is responsible for the damage or loss of the hardware dongle. If the hardware dongle supplied by FIDES is defective, the customer’s warranty claims in accordance with Section 11 of these provisions remain unaffected.
- The customer is not authorised to remove or change copyright notices, serial numbers or other identifying features of the software.
Transfer of the software
- If the customer acquires the software in accordance with sections 3.1 or 3.3, he is permitted to pass the software on to third parties if the third party agrees in writing to the continued validity of the licence conditions of this contract vis-à-vis FIDES and the customer hands over or deletes all copies of the program to the third party. The customer’s right to use the programme expires upon transfer to the third party. The customer is obliged to inform FIDES of the name and full address of the third party.
- If the customer uses the software in accordance with Section 3.2 by way of a temporary licence, the customer is not permitted to pass on the software and the user documentation to third parties for commercial purposes, i.e. to grant rights of use to them, whether by renting, lending or selling them.
- If FIDES makes the software available to the customer on a permanent basis (Section 3.1), the customer shall pay FIDES or the specialist dealer a one-off licence fee in accordance with the agreement (offer / order confirmation) or in accordance with the FIDES price list valid at the time the order is placed. The licence fee is due for payment upon conclusion of the contract.
- If FIDES provides the customer with the software for use on a temporary basis (Section 3.2), the customer shall pay FIDES or the specialised dealer a monthly usage fee for the software in accordance with the FIDES price list valid at the time the order is placed. The monthly usage fees are invoiced on a quarterly basis.
- If the customer exercises a purchase option for the software in accordance with clause 3.3 of these terms and conditions, the rental shares for the software accrued up to the time the purchase option is exercised shall be offset against the fee payable in accordance with clause 7.1 above, reduced to the agreed chargeable share, in accordance with the applicable FIDES price list.
- Unless otherwise agreed, the agreed FIDES prices do not include statutory VAT. Value added tax will be charged to the customer in addition at the applicable statutory rate.
- All invoices from FIDES are due for payment within 10 days of receipt of the invoice.
Copyright rights of use
- Insofar as the customer is granted rights of use under copyright law in return for a one-off payment when software is supplied in accordance with the above Sections 3.1 and 4, the granting of rights shall only become effective once the customer has paid the remuneration owed.
- Insofar as the customer is granted rights of use under copyright law in accordance with the above Sections 3.2 and 4 in return for a monthly fee, the granting of rights shall only remain effective as long as the customer pays the monthly fee owed in full.
Retention of title
- Insofar as the customer acquires the software supplied by FIDES in accordance with the above clauses 3.1 or 3.3, the software becomes the property of the customer when the licence fee contractually owed for this in accordance with clause 7 of these terms and conditions has been paid in full.
- In the event of default of payment or other significant breaches of contract by the customer, FIDES is entitled to demand that the customer surrender the software subject to retention of title even if FIDES does not withdraw from the contract.
Right of set-off/retention
- The customer is only entitled to offset his own counterclaims against outstanding claims of FIDES if FIDES does not dispute the respective counterclaims of the customer or if existing counterclaims have been recognised by declaratory judgement.
- The customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship.
- Warranty for permanent use (Section 3.1)
- The warranty period for software delivery is 12 months from delivery of the software. This does not apply to defects that FIDES has fraudulently concealed.
- The customer must inspect the software immediately after delivery and report any defects without delay. FIDES only provides a warranty for recognisable defects if they are reported to FIDES within a period of 14 days. This does not apply to defects that FIDES has fraudulently concealed.
- If the software supplied by FIDES proves to be defective, FIDES must first be given the opportunity to rectify the defect – depending on the type of software, the defect and the other circumstances, also several times – by way of subsequent fulfilment by repair or replacement. FIDES is entitled to choose between repair and replacement.
- If FIDES refuses subsequent fulfilment or if subsequent fulfilment fails or is unreasonable for the customer, the customer may, at his discretion, demand a reduction in the licence fee (abatement) or withdraw from the licence agreement. Claims for damages by the customer remain unaffected in accordance with the following clause 12.
- FIDES does not issue a warranty declaration.11.2 Warranty in the case of temporary use (Section 3.2)
- Defects in the software provided will be rectified by FIDES within a reasonable period of time following notification of the defect by the customer, at the discretion of FIDES, either by replacement delivery or rectification.
- The customer’s right of cancellation due to failure to grant use is excluded unless the repair or replacement delivery fails.
Compensation for damages
- In the event of slight negligence, FIDES is only liable for the foreseeable, contractually typical, direct average damage according to the type of goods provided and for damage resulting from injury to life, limb or health in the event of a breach of material contractual obligations (cardinal obligations). Otherwise, the pre-contractual, contractual and non-contractual liability of FIDES is limited to intent and gross negligence, whereby the limitation of liability also applies in the case of fault on the part of a vicarious agent of FIDES. The limitation of liability does not apply to the liability of FIDES under the Product Liability Act.
- The limitation period for the customer’s claims for damages due to defects in the delivered software is 12 months. This does not apply to defects that FIDES has fraudulently concealed.
- If the customer is a merchant, Munich shall be the place of jurisdiction for all disputes arising from or in connection with this contract. If the customer is a merchant, the place of fulfilment for the obligations arising from contracts between the customer and FIDES is the registered office of FIDES.
- German law applies exclusively to contracts between FIDES and the customer, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- Should individual provisions of these terms of delivery be invalid or lose their validity due to circumstances occurring at a later date, the validity of the remaining terms of delivery shall remain unaffected. The invalid provisions shall be replaced by provisions that come closest to what the contracting parties would have wanted if they had considered the point in question. The same applies to gaps in these terms of delivery.