GOM - Optical Measuring Techniques

Effective January 2018

Software licensing conditions

 

§ 1 Validity

(1)        The provider’s software shall only be permitted to be licensed to the customer on the basis of these software licensing conditions.

(2)        Any deviating, contrary or supplementary terms and conditions shall only apply if and insofar as the validity thereof has been expressly agreed in writing. Individual agreements shall take precedence in any case.

 

§ 2 Object of the Agreement

(1)        The provider licenses to the customer the software, including any data files, and the associated user documentation (in electronic format) in German or English (referred to hereinafter jointly as “Objects of the Agreement”) either

·        for an indefinite period or

·        for a specific period.

(2)        Add-on programs, additional data files, options for software etc. that are decided upon by the customer following the conclusion of the agreement must be included in an addendum, in respect of which these terms and conditions apply accordingly.

(3)        The software shall be permitted to include copy protection and usage protection in the form of dongles. A dongle permits the use of the software only for a specific number of individuals at the same time.

(4)        The software referred to separately in the user documentation shall be subject primarily to special (open source) conditions, which are also attached to the Objects of the Agreement; in particular, the customer shall be granted the usage rights specified therein. These terms and conditions shall only apply in connection with this software, which is referred to separately, insofar as they are not contrary to the (open source) conditions.

(5)        The software’s source code does not fall under the Objects of the Agreement.

(6)        The user documentation that is valid for the licensing of the software is conclusively decisive in respect of the quality of the software licensed by the provider. The provider is not obliged to provide software that exceeds this quality.

 

§ 3 Scope of use

(1)        In the case of use that is unlimited in time, the provider grants the customer a simple, transferable right to use the software, such right being unlimited in time and space.

(2)        In the case of use that is limited in time, the provider grants the customer a simple, non-transferable right of use, such right being limited in time and space.

(3)        Irrespective of any use that is limited or unlimited in time, the usage right shall only be permitted to be exerted by a maximum of the defined number of individuals at the same time.

(4)        Copies shall only be permitted to be made of the software where this is required for the purposes of use according to the agreement. The customer shall be permitted to make the necessary number of back-up copies of the software in accordance with the rules of technology. Back-up copies on movable data carriers must be labelled as such and must be given the same copyright reference as the original data carrier.

(5)        The customer is only authorized to make amendments and perform upgrades and other revisions to the software as is absolutely permitted by law.

(6)        The customer shall only be entitled to decompile the software within the statutory limits and only if the provider has failed to provide the necessary data and/or information within a reasonable time limit following a written request, in order to establish interoperability with other hardware and software.

(7)        Where the provider relinquishes to the customer additions in the context of the remedying of defects (e.g. patches, additions to the user documentation) or a new version of the software (e.g. update, upgrade) that replaces software supplied earlier, these shall be subject to these terms and conditions.

Where the provider makes available a new version of the software, the customer’s powers in connection with the software supplied earlier shall cease as soon as he makes productive use of the new software.

Once six months have passed following the provision of a new software version, the provider shall not implement any further measures to remedy errors or perform any further program maintenance in respect of the version of software supplied for an unlimited time.  

(8)        Copies of the user documentation shall not be permitted to be made, nor shall any revision be allowed.

 

§ 4 Terms of payment

(1)        Payment shall be due and payable upon issuance of the invoice, but not prior to the issuing of the Objects of the Agreement and any dongles.

(2)        All prices shall be understood to be exclusive of the rate of value-added tax applicable at the time, and also exclusive of any transport and packaging costs.

 

§ 5 Installation

            As regards installation of the software, the provider refers to the installation instructions described in the user documentation, in particular to the hardware and software environment that is required at the customer’s premises. The customer shall install the software himself even in the case of use that is limited in time.

 

§ 6 Protection of software and user documentation

(1)        Where rights are not expressly granted to the customer, all rights to the Objects of the Agreement (and all copies made by the customer) – in particular copyright, rights to or in inventions and technical protective rights – belong exclusively to the provider, even where the results arose from input by or assistance from the customer. This also applies to reworkings of the Objects of the Agreement that have been carried out by the provider. The customer’s ownership of the respective data carriers for such copies shall not be affected thereby.

(2)        The customer shall keep the Objects of the Agreement that have been provided and any dongles supplied safe and will take the necessary technical and organizational measures in order to rule out any misuse.

(3)        The customer shall not be permitted to modify or remove copyright notes, labels and/or inspection numbers or signs belonging to the provider. Should the customer amend or revise the Objects of the Agreement, these notes and labels must be transferred to the amended version of the Object of the Agreement.

(4)        In the case of use that is limited in time, the customer shall keep a record of the copies of the Objects of the Agreement that he has produced on data carriers in accordance with the agreement, as well as the whereabouts of the data carriers and any dongles. He shall provide information to the provider and grant access upon request.

(5)        In the case of use that is limited in time, where the customer provides data carriers, memory sticks or other hardware on which Objects of the Agreement are stored (in whole or in part, unchanged or reworked) (i) to third parties or (ii) surrenders the direct possession  thereof, he will ensure that the stored Objects of the Agreement have been completely and permanently deleted in advance.

 

§ 7 Transfer

(1)        In the case of use that is unlimited in time, the customer shall only be permitted to transfer the Objects of the Agreement and any dongles to a third party in a consistent manner and with the complete and final surrender of its own use of the Objects of the Agreement. Temporary or partly remunerated transfer of the use to third parties is prohibited. The same applies in the case of non-remunerated transfer.

(2)        In the case of use that is limited in time, the customer is not entitled to transfer the Objects of the Agreement and any dongles to a third party without the provider’s consent.

 

§ 8 Customer’s duty to cooperate and information obligations

(1)        The customer has read up about the essential functional features of the software and the applicability in the existing software and hardware configuration and shall bear the risk as to whether they fulfil his wishes and requirements.

(2)        The customer alone shall be responsible for setting up an operational hardware and software environment for the Objects of the Agreement, this environment also being sufficiently powerful, also taking into account the additional load as a result of the Objects of the Agreement.

(3)        The customer shall be mindful of the instructions supplied by the provider in respect of installation and operation of the software.

(4)        The customer shall take adequate precautions for situations where the software does not function properly, in whole or in part (e.g. by way of data backup, fault diagnosis, regular monitoring of the data processing results).

(5)        The customer is obliged to inform the provider immediately if a dongle is lost.

(6)        Where the customer fails to comply with these obligations, he shall be subject to disadvantages and additional expense.

 

§ 9 Duty to examine and requirement to give notice of defects

            The customer shall assume a duty to examine and requirement to give notice of defects in respect of all the deliveries and services provided by the provider.

 

§ 10 Material defects and defects in title; other service disruptions; statute of limitations

(1)        The provider shall be liable in the event of transfer in return for payment in respect of the agreed quality of the Objects of the Agreement and any dongles and for ensuring that no third‑party rights arise as a result of the customer’s use of the Objects of the Agreement within the contractual scope.

(2)        In the event of material defects, the provider fulfils its warranty obligation in the first instance by remedying the defects. To this end, he shall provide the customer, at his discretion, with a new, defect-free software version or shall remedy the defect; remedying of defects shall also be understood to mean that the provider shows the customer viable options to avoid the effects of the defect.

In the case of defects in title, the provider fulfils its warranty obligation in the first instance by remedying the defects. To this end, he provides the customer, at his discretion, with a legally sound opportunity to make use of the Objects of the Agreement supplied or to use like-for-like exchanged or modified Objects of the Agreement.

The provider is entitled to make remediation of the defects dependent on the customer having paid at least a reasonable portion of the fee.

(3)        The customer is obliged to accept a new software version provided that the contractual range of functions is maintained and the acceptance thereof does not result in any significant disadvantages.

(4)        Should two attempts to remedy the defects be unsuccessful, the customer shall be entitled to establish an appropriate extension for the defects to be remedied. He must expressly state in writing that he reserves the right to withdraw from the agreement and/or demand compensation should a renewed attempt at remedy be unsuccessful.

Should the remedy also be unsuccessful during the extension period, the customer shall be permitted to withdraw from the agreement or to reduce the price, except in cases where an insignificant defect exists.

(5)        Where third parties assert claims that prevent the customer from exercising the rights of use granted to it under the contract, the customer shall inform the provider of this comprehensively and in writing without delay. He hereby authorizes the provider to lodge complaints against third parties by itself judicially and extra-judicially. Where proceedings are instigated against the customer, he shall coordinate with the provider and shall only conduct legal proceedings, in particular acknowledgements and comparisons, with the provider’s consent.

(6)        The customer shall only be permitted to derive rights from other breaches of duty on the part of the provider if he has notified the provider of these in writing and granted him an extension to remedy these breaches. This shall not apply where a remedy is not considered according to the nature of the breach of duty.

(7)        In the case of use that is unlimited in time, the limitation period for all warranty claims shall be one year and shall begin, subject to the express agreement of a deadline-triggering acceptance, with the transfer of the Objects of the Agreement and any dongles; the same deadline shall apply to other claims of any kind against the provider.

In the event of wilful intent or gross negligence on the part of the provider, fraudulent concealment of the defect, personal injury or defects in title, and in the case of guarantees, the statutory limitation periods shall apply; this is also the case for claims under the Product Liability Act.

(8)        Where subsequent delivery of a dongle is required after the expiry of the limitation period, the provider shall charge an administration fee in the amount of €100.00, plus the currently applicable value-added tax and any transport and packaging costs.

 

§ 11 Liability

(1)        In all cases of contractual and non-contractual liability, the provider shall only pay compensation within the following limits:

a)         to the full amount in the event of wilful intent, and also in the case of the absence of a quality in respect of which the provider has assumed a guarantee;

b)         in the event of gross negligence, only in the amount of the foreseeable damage that is intended to be prevented by the duty that was breached;

c)         in other cases: only as a result of a breach of an essential contractual obligation, if the purpose of the agreement is jeopardized as a result, but only in the amount of the foreseeable damage in all cases;

d)         in addition, where the provider is insured against the damage that has occurred, in the context of insurance cover and conditional upon the insurance payment.

(2)        Limitations of liability shall not apply for liability for personal injury and in the case of liability under the Product Liability Act.

(3)        The provider reserves the right to the defence of contributory negligence.

 

§ 12 Confidentiality and data protection

(1)        The contractual partners undertake to treat as confidential all the knowledge of confidential information and business secrets (“Business Secrets”) of the respective other contractual partner acquired in the context of the initiation and performance of the agreement for an indefinite period and only to use such knowledge for the purposes of fulfilling the contract. The provider’s Business Secrets also include the Objects of the Agreement and the services performed in accordance with the contract.

(2)        The customer shall inform all persons to whom access to Objects of the Agreement and any dongles is granted of the provider’s rights and the obligation to maintain confidentiality.

(3)        The above obligations shall not apply to Business Secrets that (i) had already been made public by the contractual partner or were known to the other contracting party at the time at which they were disclosed; (ii) became public after being communicated by the contractual partner through no fault on the part of the other contracting party; (iii) were made available following the communication thereof to the other third-party contracting party by the contractual partner in a manner that is not contrary to law and without restriction in respect of confidentiality or exploitation; (iv) were developed by a contracting party independently, without using the contractual partner’s Business Secrets; (v) have to be published in accordance with the law, an official order or court decision – provided that the publishing party informs the contractual partner thereof without delay and supports him in defending such orders and decisions; or (vi) where the contractual partner is permitted to use or pass on the Business Secrets on the basis of mandatory legal requirements or by virtue of the agreement.

(4)        The provider complies with the data protection regulations, in particular where he is granted access to the customer’s premises or to hardware and software belonging to the customer.

 

§ 13 Return

(1)        In the case of use that is limited in time, the customer must immediately return to the provider the Objects of the Agreement and any dongles following the expiry of the time limit specified. Any copies that have been made of the software must be permanently deleted in full.

(2)        Instead of stipulating that the Objects of the Agreement be returned, the provider shall also be permitted to request that the Objects of the Agreement surrendered be destroyed and any dongles handed over also be destroyed.

(3)        No use shall be made of the software following the expiry of the time limit specified.

 

§ 14 Final provisions

(1)        The exclusive place of jurisdiction for all disputes arising from and in connection with the agreement shall be the provider’s place of business. Should the provider file a suit, he shall also be entitled to elect the customer’s registered office as the place of jurisdiction. The right of both parties to solicit interim relief before the competent courts under the statutory provisions shall remain unaffected.

(2)        German law shall exclusively apply, excluding the UN Convention on the International Sale of Goods (CISG).

(3)        The conclusion of the agreement and any subsequent amendments and supplements to the agreement must be made in writing in order to be valid. This also applies to the modification of this clause. No verbal side agreements have been made.

 (4)       Where a provision of these terms and conditions is or becomes ineffective, contains an inadmissible deadline or a loophole, the legal validity of the remaining provisions shall remain unaffected thereby. Where the ineffectiveness does not result from a breach of Section 305 et seq. of the German Civil Code (Validity of General Terms and Conditions), in place of the ineffective provision, an effective provision which comes closest in economic terms to what was intended by the parties shall be deemed to apply. The same applies in the case of a loophole. In the case of an inadmissible deadline, the legally permissible measure shall apply.