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MiniTec GmbH & Co.KG | MiniTec Allee 1 | 66901 Schönenberg-Kübelberg
Phone: +49 (0) 63 73 / 81 27 - 0 | Fax: +49 (0) 63 73 / 81 27 – 20 | E-Mail: info@minitec.de
- in the following referred as "MiniTec GmbH & Co.KG -
(1) The following terms and conditions apply to the provision of standard software. All deliveries, services and offers in this context shall be made exclusively on the basis of these General Terms and Conditions. They shall be an integral part of all contracts concluded by MiniTec GmbH & Co.KG with its contractual partners (hereinafter also referred to as "customers") for the deliveries or services offered by MiniTec GmbH & Co.KG.
(2) MiniTec GmbH & Co.KG shall conclude contracts exclusively with entrepreneurs as defined in paragraph 3. The General Terms and Conditions shall therefore also apply to all future deliveries, services or offers to the customer, even if they are not separately agreed upon again.
(3) Terms and conditions of the customer or third parties shall not apply even if MiniTec GmbH & Co.KG does not separately object to their application in individual cases. Even if MiniTec GmbH & Co.KG refers to a letter containing or referring to the customer's or a third party's terms and conditions, this shall not constitute an agreement with the validity of those terms and conditions.
(4) An entrepreneur within the meaning of these GTC is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity.
(1) All offers of MiniTec GmbH & Co.KG are merely a non-binding invitation to the customer to submit offers. An acceptance on the part of MiniTec GmbH & Co.KG and thus a conclusion of contract shall only be effected by a separate order confirmation.
(2) The object of the contracts concluded by MiniTec GmbH & Co.KG on the basis of these General Terms and Conditions is the permanent transfer of the software resulting from the order including user documentation and the granting of the rights of use described in § 3. The hardware and software environment and, if applicable, further requirements to be provided by the customer within which the software is to be used shall also result from the order.
(3) Descriptions of quality from the order/license certificate are conclusive and are not to be understood as guarantees. A warranty shall only be granted if it has been expressly designated as such.
(1) Upon full payment of the agreed fee, the customer shall receive a non-exclusive right, unlimited in time, to use the software to the extent granted in the license certificate/order. Prior to full payment of the fee, all data carriers, dongles and the user documentation provided shall be subject to retention of title. If the software contains open source components, the contents of the respective open source licenses shall apply. This also applies to the rights of use. The customer shall receive a list of the respective components in the license certificate/order. Otherwise, the provisions of these terms and conditions shall apply.
(2) The number of licenses and the type and scope of use are determined by the license certificate/order. The software may only be used simultaneously by a maximum number of natural persons equal to the number of licenses purchased by the customer. The permissible use includes the installation of the software, the loading into the working memory as well as the intended use by the customer. Under no circumstances shall the customer have the right to lease or otherwise sublicense the purchased software, to publicly reproduce or make it accessible by wire or wireless means, or to make it available to third parties, whether for a fee or free of charge, e.g. by way of application service providing or as "software as a service".
(3) The customer is entitled to create a backup copy if this is necessary to secure future use. The Customer shall visibly affix the note "Backup Copy" as well as a copyright notice of the Manufacturer on the created backup copy.
(4) The customer shall only be entitled to decompile and reproduce the software if this is provided for by law or on the basis of the license terms of any open source component included. However, this shall only apply under the condition that MiniTec GmbH & Co.KG has not made the necessary information available to the customer upon request within a reasonable period of time.
(5) The customer shall be entitled to permanently transfer the acquired copy of the software, as well as the required dongle if applicable, to a third party by handing over the license certificate and the documentation. In this case, he shall completely give up the use of the program, remove all installed copies of the program from his computers and delete all copies located on other data carriers or hand them over to MiniTec GmbH & Co.KG, unless he is legally obliged to keep them for a longer period of time. Upon MiniTec GmbH & Co.KG's request, the customer shall confirm in writing that the aforementioned measures have been carried out in full or, if applicable, explain the reasons for a longer retention period. Furthermore, the customer shall expressly agree with the third party to observe the scope of the granting of rights pursuant to this § 3. A splitting of acquired license volume packages is not permitted.
(6) If the customer uses the software to an extent that exceeds the acquired rights of use qualitatively (with regard to the type of use permitted) or quantitatively (with regard to the number of licenses acquired), he shall immediately acquire the rights of use necessary for the permitted use. If he fails to do so, MiniTec GmbH & Co.KG shall assert the rights to which it is entitled.
(7) Copyright notices, serial numbers and other features serving to identify the program may not be removed or changed from the software.
(1) The prices result from the order/license certificate. All prices are net, i.e. excluding any applicable value added tax.
(2) Due dates and payment periods result from the order.
(3) Interest on arrears shall be eight percent above the prime rate applicable at the time.
(1) MiniTec GmbH & Co.KG warrants the agreed quality and that the customer can use the software without infringing the rights of third parties. The agreed quality shall take precedence over any objective requirements. Specifications in brochures or outside the contractual documents shall not be considered as an agreement deviating from this. The warranty for material defects shall not apply to defects based on the fact that the software is used in a hardware and software environment or with incompatible devices, objects or equipment that do not meet the requirements stated in the license certificate/order or for changes and modifications that the customer has made to the software without being entitled to do so by law, the concluded contract or based on a prior written consent of MiniTec GmbH & Co.KG.
(2) The customer shall inspect the software for obvious defects immediately upon receipt and notify MiniTec GmbH & Co.KG immediately of any such defects, otherwise any warranty for such defects shall be excluded. The same shall apply if such a defect becomes apparent later. § Section 377 of the German Commercial Code (HGB) shall apply.
(3) In the event of a material defect, MiniTec GmbH & Co.KG shall first be entitled to subsequent performance, i.e. at its own choice to remedy the defect ("rectification") or replacement delivery. Within the scope of the replacement delivery, the customer will accept a new version of the software, if necessary, unless this leads to unreasonable impairments. In case of defects of title, MiniTec GmbH & Co.KG shall, at its own discretion, provide the customer with a legally unobjectionable possibility to use the software or modify it in such a way that no rights of third parties are infringed anymore.
(4) MiniTec GmbH & Co.KG shall be entitled to provide the warranty at the customer's premises. MiniTec GmbH & Co.KG shall also satisfy its obligation to remedy defects by making updates provided with an automatic installation routine available for download on its homepage and by offering the customer telephone support to solve any installation problems that may arise.
(5) If the customer asserts warranty rights, he shall be obliged to cooperate. In particular, the customer shall provide MiniTec GmbH & Co.KG with the local logs, grant MiniTec GmbH & Co.KG the necessary access and describe any defects found in as much detail as possible to enable reproduction and containment.
(6) The right of the customer to reduce the purchase price or to withdraw from the contract in the event that the repair or replacement delivery fails twice remains unaffected. A right of withdrawal does not exist in the case of insignificant defects. If the customer claims damages or reimbursement of futile expenses, MiniTec GmbH & Co.KG shall be liable according to § 6.
(7) With the exception of claims for damages, warranty claims based on material defects shall become statute-barred after one year. In the case of sale on a data carrier, the limitation period shall begin with the delivery of the software, in the case of sale by means of downloads from the Internet after notification and activation of the access data for the download area. Claims for damages and claims for reimbursement of futile expenses shall be governed by § 6.
(1) MiniTec GmbH & Co.KG shall be liable without limitation
(2) In the event of a slightly negligent breach of an obligation which is essential for achieving the purpose of the contract (cardinal obligation), the liability of MiniTec GmbH & Co.KG shall be limited to the amount of the damage which is foreseeable and typical according to the type of business in question.
(3) MiniTec GmbH & Co.KG shall have no further liability. MiniTec GmbH & Co.KG points out that the customer shall be responsible for compliance with plant and operational safety as well as for compliance with other legal requirements.
(4) The above limitation of liability shall also apply to the personal liability of MiniTec GmbH & Co.KG's employees, representatives and bodies.
(1) The customer shall take suitable measures to secure the software and, if applicable, the access data and dongles provided against access by unauthorized third parties. In particular, all copies of the software as well as the access data and dongles shall be kept in a protected place.
(2) At MiniTec GmbH & Co.KG's request, the customer shall enable MiniTec GmbH & Co.KG to verify the proper use of the software, in particular whether the customer uses the program qualitatively and quantitatively within the scope of the licenses purchased by him. For this purpose, the customer shall provide MiniTec GmbH & Co.KG with information, grant access to relevant documents and records and allow MiniTec GmbH & Co.KG or an auditing company named by MiniTec GmbH & Co.KG and acceptable to the customer to inspect the hardware and software environment used. MiniTec GmbH & Co.KG may carry out the audit on the customer's premises during its regular business hours or have it carried out by third parties bound to secrecy. MiniTec GmbH & Co.KG shall ensure that the customer's business operations are disturbed as little as possible by its activities on site. If the inspection reveals that the purchased number of licenses has been exceeded by more than 5% (five percent) or that the license has otherwise been used in a manner not conforming to the contract, the customer shall bear the costs of the inspection, otherwise MiniTec GmbH & Co.KG shall bear the costs. All other rights are reserved.
(1) "Confidential Information" shall mean all information and documents of a Party that are marked as confidential or are to be considered confidential under the circumstances, in particular information about products of the respective Party, including object codes, documentation and other records, operational processes, business relationships and know-how.
(2) MiniTec GmbH & Co.KG and the customer undertake to keep Confidential Information of the other party strictly and unconditionally secret and to protect it by appropriate technical and organizational precautions.
(3) Such Confidential Information shall be exempt from the confidentiality obligation in Paragraph 2,
a) which were demonstrably already known to the recipient at the time the contract was concluded or subsequently become known to it from a third party, without this violating a confidentiality agreement, statutory regulations or official orders;
b) which are public knowledge at the time of conclusion of the contract or are made public thereafter, insofar as this is not based on a breach of this contract;
c) which must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the recipient obligated to disclose shall inform the other party in advance and give it the opportunity to object to the disclosure.
(4) The parties shall only grant access to confidential information to consultants who are subject to professional secrecy or who have previously been imposed obligations corresponding to the confidentiality obligations of this contract. Furthermore, the parties shall disclose the Confidential Information only to those employees who need to know it for the performance of this Agreement and shall also oblige such employees to maintain confidentiality to the extent permitted by employment law for the period after their departure.
(5) Any culpable violation of these regulations shall result in an appropriate contractual penalty. Further claims of the violated party remain unaffected.
(1) The customer may transfer claims against MiniTec GmbH & Co.KG to third parties only with the written consent of MiniTec GmbH & Co.KG.
(2) The parties are aware that the software may be subject to export and import restrictions. In particular, there may be licensing requirements or the use of the Software or related technologies may be subject to restrictions abroad. The customer shall comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations. The performance of the contract by MiniTec GmbH & Co.KG shall be subject to the proviso that no obstacles due to national and international regulations of export and import law as well as no other legal regulations prevent the performance. The customer shall fully indemnify MiniTec GmbH & Co.KG against all claims asserted against MiniTec GmbH & Co.KG by authorities or other third parties due to the customer's failure to comply with export control obligations and undertakes to compensate MiniTec GmbH & Co.KG for all damages and expenses incurred in this connection.
(3) This contract shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (UN Sales Convention).
(4) Place of performance and exclusive place of jurisdiction is Kaiserslautern. Contractual language is German.
(5) Should individual provisions of these GTC be invalid, this shall not affect the validity of the remaining provisions. The parties shall endeavor to replace the invalid provision with a valid provision that comes as close as possible to the economic meaning of the invalid provision.