General Terms and License

/General Terms and License
General Terms and License2017-07-03T16:00:55+00:00

 

PowerFolder Software license-agreement

– Preamble –

 

By this license agreement the licensor that is dal33t GmbH, Emanuel-Leutze Straße 11, 40547 Düsseldorf, grants the licensee a license for the program named “PowerFolder”. PowerFolder is a program, that secures data and is especially suited for synchronization between different computers by local or online-networks, exchange and transmission of backups and secure online storage.

Optionally the licensee is granted the right to deposit data for online data storage in the data storage center of dal33t GmbH. In the case that such a contract is concluded the Appendix I applies. If only a license agreement is concluded Appendix I is meaningless and not part of the license agreement. Appendix I only applies if this is agreed between the parties.

§ 1

Subject matter of the contract

The client may download the software PowerFolder from the homepage/online presentation of PowerFolder (from www.powerfolder.com). The rights requisite for the use of that software shall be acquired by this contract.

§ 2

Assignment of rights

The licensor grants the user a not exclusive, simple and not assignable right of use regarding the program “PowerFolder”. The right of use is granted without areal restriction and for the – separate from this contract – tenure agreed in each case.

a)

The program is licensed on a “per user”-basis that means that “one example” of the software entitles one user for the use on unlimited numbers of electronic devices (computers, Smartphones, Tablets) simultaneously. If you wish to use the software by more than one user the right of use must be extended accordingly. For this case a further license has to be acquired.

b) In deviance to the regulation 2 a) above the license can be acquired for use by multiple users if the price list displayed on the internet site www.powerfolder.com allows the purchase of the license for

more than one user. In this case the above mentioned regulation 2 a) applies with the proviso that the use is restricted to maximum the number of users for which the license was acquired.

c)

Solely the client is entitled to use the software. The client will make the program available to third persons only after written and previous consent of dal33t GmbH. Employees of the client do not count as third persons as well as any other person that stay at the client for the contractual use.

The client is entitled to create a security backup and to make every day data savings. The creation of more copies than requisite for a contractually agreed use including security backup and data savings is not allowed. For each copy that exceeds that security backup a new license is requisite even if the copy is used on the same computer.

By the use, the download or the installation of the program or parts of the program you display your acceptance of the license agreement and all of its provisions and conditions regarding the coping, the distribution and the changing of the program or hereupon based works. Nothing but this license agreement grants you the permission to modify or distribute the program or derivative rights. These actions are prohibited by law. If you do not accept conditions and provisions you should not use, modify or distribute this program.

The licensee is not entitled in connection with the enforcement of this contract to use free of charge the title of the program as well as names, marks, logos and illustrations of the holder of rights.

 

 

§ 3

Modifications of the program

The client is not entitled to decompile, to change, to revise or modify the program. An exception hereof applies only insofar as the copyright law permits this inalienable for the creation of an interface to other software products or for elimination of computer bugs as requisite.

The client is not allowed to copy the program or reproduce parts hereof in another software application by which means whatsoever. § 2 No. 3 of this contract, by which the clients have the right to create a security backup is not affected hereof. You are not allowed to modify the program in that fashion that in any way the rights, patent, trademarks or copyrights of other parties or entities are infringed.

The client is entitled to decompile the software only in the constraints of sec. 69 e copyright law and only if dal33t GmbH has not provided after written request with appropriate period of time the data or/and information requisite to create the interoperability with other hard- and software.

The client is only insofar entitled to change, extend or else wise to modify the software in the sense of sec. 69 c No. 2 copyright law as this law permits this inalienable. Before the client himself or by third person eliminates the software bug he grants dal33t GmbH the right to try to eliminate the software bug. The client is not entitled to rights of use and distribution regarding the modification that exceeds the rights of use granted by this contract. The licensee may – against appropriate remuneration – request the granting of a not exclusive, territorial and in time not restricted right of use including the right to sublicense.

You have to refrain from modifying the program insofar as this is not permitted in the frame of the provisions of sec. 69 d copyright law. It is prohibited to distribute the modified program. If you have modified the program and distribute a program you have to pay a software registration and license fee for each copy of the program that was distributed.

You are not allowed to develop application programs, reusable components or other software items that connect with the original or modified vision of the program.

If the licensor leaves the client within the scope of rectification or support supplements (e. g. patches) or new versions (updates) or within the frame this agreement a reissue of the subject matter of the contract (upgrade) that substitutes formerly yielded subject matters of contract (“old software”), or by a special agreement further software-modules, the provisions of this agreement apply.

 

§ 4

No distribution of the program

You are not allowed to copy the program and to distribute literal copies of the program, except with a written permission from dal33t GmbH.

Also under the provision that the recipient of the modified copy of this programs agrees to the provisions of this license agreement you are not allowed to distribute copies or modified copies of this program. This applies for the right worldwide and for every medium to think of.

You are not allowed to pack this program with other software products or to include it or to distribute it without the special written approval of dal33t GmbH.

§ 5

Hosting services

For the purpose of this license “hosting-services” are regarded as a form of distribution of this program. Hosting services is understood as distribution of this program towards end-user in a life-working context in which the program is installed on a server of a provider of the hosting services and by the end-user by internet or by other means of data communications the program is used in bypassing the necessity for the end-user to download and to install the program on his own server.

If you use this program by a hosting service you are bound to the provisions and conditions of this license agreement in exactly the same manner as if you would have had downloaded the program and had it installed on your own server/system.

dal33t GmbH will in no way be maid responsible for the ability and suitability of the program regarding tasks as a “hosted-“software application.

§ 6

Ownership of intellectual property

No rights regarding this program will be granted unless this is agreed explicitly. You are not allowed to copy, change, sublicense or distribute the program unless this is allowed explicitly due to the license agreement. Any attempt else wise to copy, change, sublicense or distribute the program is prohibited and will automatically cancel your rights due to this license.

You are not allowed to represent yourself in any way to be associated, connected or supported by dal33t GmbH unless you have a special written approval from dal33t GmbH.

You are not allowed to create derivative works of the program.

If a natural person or legal entity or any other entities submits dal33t GmbH a contribution in any section for the inclusion in the program including but not restricted to software-modification, proposal, appendices, patches or any other modifications the right holder grants for this contribution dal33t GmbH a non-exclusive, assignable, worldwide royalty free copyright license to use the contribution for any purpose whatsoever including the rights to distribute, to sell, to workout derivative works of the contribution, to display publicly, to execute publicly, to distribute or to sublicense.

The ownership of the entire intellectual property regarding the whole program remains at dal33t GmbH under which circumstances whatsoever. Modifications of the program or contributions to the modifications, proposals, appendices, patches or other modifications regarding any part whatsoever of the program do not assign any ownership rights or other intellectual property rights to any other party with exception of dal33t GmbH.

Any contributor is subjected to the conditions of this contract and grants hereby dal33t GmbH a not exclusive, worldwide, royalty free copyright license to reproduce, produce derivative works here from, to display publicly, to execute publicly, to distribute or to license the contribution of contributor and that in source code-format.

§ 7

Royalty fee and payment

Every organization, legal or natural person that uses this program must pay a software registration and royalty fee which amount is subjected to the price list that can be seen on the internet homepage: www.powerfolder.com. The amount of the royalty is subjected to the version of the price-list that can be downloaded at that point in time of the conclusion of this contract on the above mentioned homepage.

a)

The assessment of the price due to the price list depends for which time-period the license is acquired (limited in time or unlimited) and whether the client is a private person or an enterprise. The duration of the license is assessed by the conclusion of the contract on the homepage www.powerfolder.com.

b)

The license regarding this program entitles to use the program for a special amount of data to be administered (e.g. 50, 100, a. 250 GB). The prices are to be determined according to the price list, depending on which maximum amount of data to be administered is acquired. The maximum amount of data to be administered is determined at the conclusion of the contract on the homepage www.powerfolder.com.

c)

If the customer acquires a packet that entitles to store data on the server of dal33t GmbH the online-data security-agreement (Appendix I) applies additionally.

dal33t GmbH keeps the right after his own discretion to change the software, registration and royalty fee without notice or justification at any point in time.

A payment of the software registration-fee and royalty to dal33t GmbH due to the provisions of this contract is requisite regardless whether the program is modified or in original form.

Payments of the software-registration-fee and royalty to dal33t GmbH are settled in EURO insofar as the price list which can be seen on the internet homepage: www.powerfolder.com does not allow the payment in US Dollar.

After payment of the requisite software registration fee and royalty for the use of the program you will be submitted a license-key-file and a receipt by electronic post if you make the corresponding contact details (your e-mail-address) available.

You are not allowed to use a program if you have not paid the requisite software registration fee and royalty that is specified in the contract. The use of the program if you have not paid the requisite software registration fee and royalty means an infringement of the copyrights of dal33t GmbH regarding this software.

The fees and royalty is due and payable without reduction with the making available of the subject matter of contract.

All prices are excluding VAT that is applied by law. If the client does not pay or only part pays the agreed fees he comes in default at the latest 30 days after due date. If the client is in default dal33t GmbH is entitled to request interests in the amount of 8 % above the bases-interest-rate regarding the open money debt of the client.

 

§ 8

Protection of software and technical preconditions

If there are not explicitly granted rights to the client by this contract all rights regarding the subject matter of the contract especially copyrights as well as technical protection rights belong exclusively to dal33t GmbH. This applies too for modifications of the subject matter of the contract by clients.

The client is supposed to carefully keep the subject matter of the contract in order to avoid abuse. The client will make the program available to third persons only after written and previous consent of dal33t GmbH. Employees of the client do not count as third persons as well as any other person that stay at the client for the contractual use.

§ 9

Reissue of the software

If dal33t GmbH makes available a reissue of software regarding the old software all rights of the clients expire without explicit return request of dal33t GmbH as soon as the client uses the new software. dal33t GmbH grants the client a three month transition period in which both versions of the subject matter of the contract may be used side by side. By dal33t GmbH the approval is given when (i) the client assures dal33t GmbH in written that all original copies of the subject matter of a contract are handed out to third persons and copies created by him are eliminated and (ii) the third person declares in written his approval towards dal33t GmbH with the agreed use and handout conditions.

§ 10

Liability

The enforcement of liability claims against dal33t GmbH – especially because of the loss of data – is excluded unless there is the deliberate or gross negligent fault on the side of dal33t GmbH.

In any way dal33t GmbH is only liable if it is about contract typical and reasonably foreseeable damages.

In any case the liability is limited for each case of damage to € 500,00. The client is obligated in his own interest in the stock and the safety of the data to execute safety backups regularly. If he transgresses against this obligation dal33t GmbH is liable regardless of the above mentioned limitations in No. 1 to 3 at the occurrence of data loss only for the damage that would have occurred by properly and regularly safety backups.

§ 11

Test version

This license agreement applies for the application of the test version of PowerFolder and that due to the following provisions:

You may use the test version of PowerFolder without limits in time. The maximal to be administered amount of data is restricted to 5 GB (Gigabyte).

You may not circumvent the restriction of the maximal pack of data to be administered by which means whatsoever.

Software registration and royalty fee for the test version according to § 7 of the license agreement can be seen on the Internet: www.powerfolder.com

You are not allowed to sell, lease, to license or sublicense or distribute in any other way the test version.

If the customer acquires a test version that entitles to store data on the server of dal33t GmbH the online-data security-agreement (Appendix I) applies.

§ 12

Closing provisions

Additionally the general conditions of dal33t GmbH apply.

Exclusive place of jurisdiction regarding all disputes from or in connection with this contract is Düsseldorf. If dal33t GmbH raises claims dal33t GmbH is entitled to choose the place of jurisdiction at the domicile or registered office of the client.

This contract is governed – under inclusion of its conclusion and its construction – by German law under the exclusion of the United Nations Convention on contracts for the international sell of goods (CISG).

 

If any of the provisions of this contract should be invalid or contain an unaffected inadmissible determination of terms or contain a gap the efficacy of the other provisions remain unaffected. Insofar as the invalidity does not derive from a violation of section 305 ff. German Civil Code (application of general conditions) in lieu of the invalid provision a valid provision is agreed that comes closest to the intended economic purpose of the parties. The same applies in the case of a gap. In case of an inadmissible term the admissible term applies.

 

 

Appendix I

 

 

Online-data security-agreement

 

– Preamble/Applicability –

 

By this contract the client shall acquire the right to store via internet connection data on the server of dal33t GmbH. This contract applies additionally to the license agreement insofar as the client has chosen besides from the license agreement an agreement for online-data storage. This agreement applies under the exclusion of the license agreement insofar as the client solely agreed to an online data storage agreement. The provisions of the license agreement apply only insofar as referred to in this contract.

Provisions

dal33t GmbH makes for the client system-resources on a server available. The client may store data on this server. On this server the contents are kept on demand for the client to download. The storage of the data is effected online via the internet presentation of dal33t GmbH www.PowerFolder.com. The data transfer has exclusively to be effected via the program made available online by dal33t GmbH on his storage media. The client has no right to request a different kind of data transfer. This also applies for the demand of the data stored by the client.

dal33t GmbH is entitled to carry out maintenance works for in total 10 hours a month. During the maintenance works the before mentioned services are not available. dal33t GmbH will indicate to the client duly – at least one day – previous to the maintenance works unless the maintenance works require not more than a quarter of an hour.

The backups are effected perpetually and always when new data from the client is uploaded on the online storage. The data is mirrored that means redundantly saved on the online storage server. The savings are always carried out for the whole server content. The client has no claim to request delivery of the storage media.

The supplier is entitled to adjust the hard- and software used for performing the service to the state of the art. Insofar as this results in additional requirements regarding the contents uploaded on the server by the client the supplier will notice this additional requirements to the client. The client will immediately after receiving the notice decide whether the requirements shall be fulfilled.

The client shall not upload on the online storage contents that are illegal or violating the laws or regulatory stipulation or rights of third persons. The client shall not upload contents that endanger the safety and integrity of other data uploaded on the server of the supplier. The client exempts the supplier from claims of third persons including the costs of the claim.

a)

If the data uploaded by the client contain contents that are illegal or are violating the laws or regulatory stipulation, statutes, ordinances or rights of third persons dal33t GmbH may deactivate or uninstall or remove these data. In such a case dal33t GmbH may deactivate the access and uninstall and remove all of the data of that client if such measure seems to be appropriate at the discretion of dal33t GmbH. The supplier will immediately inform the client about this measure.

b)

If the data uploaded by the client endanger or impair the operation of the server or of the communication network of the supplier or the security and integrity of other data that are uploaded on the server of the supplier dal33t GmbH may deactivate or uninstall or remove these data. The supplier will immediately inform the client about this measure.

For the access to the storage designated to the client the client gets a lock-in name and a suitable password.

The contents uploaded by the client on the therefore designated online storage may be protected by copyright law or by data protection law. The client grants the supplier the right to copy the contents uploaded on the server for the purpose of data backups. For the violation of provisions of the data protection law by the uploading of data on the server of the supplier the client is held liable.

The client is not allowed to leave the services provided by the supplier to third persons for business purposes.

a)

The fees for the services provided by the supplier depend on the price-lists valid at the point in time of the conclusion of the contract. The price-list is displayed on the homepage of dal33t GmbH www.PowerFolder.com. Besides that regarding the fees the provisions of sec. 7 of the license agreement apply.

b)

Every client acquires – according to the above mentioned price-list – a certain storage capacity (e. g. 50 GB, 100 GB, 250 GB etc.) for a certain period of time which determines how much data the client may store on the online storage center for a certain period of time. The royalty also depends on the size of the acquired storage capacity.

c)

If the client uploads more data than is allowed by the required storage capacity the access will be closed as long as either (i) a bigger storage capacity is acquired or (ii) the client has removed data from the server.

Performance of the service by the supplier is bound to the condition that the client duly meets his payment obligations. If the client does not meet his payment obligations the supplier may cancel the contractual relationship for cause without period of notice.

a)

Damage claims of the client against dal33t GmbH exist in all cases of contractual and out of contractual liability in case of deliberation, gross negligence as well as the acceptance of a guarantee in full amount. In all other cases there are damage claims only in case of infringement of an important contractual obligation if furthermore by that the purpose of the contract is endangered however only in the amount of the damage that is reasonably foreseeable.

b)

The liability restrictions apply accordingly for employees and agents of dal33t GmbH. The liability restrictions apply not for personal damage due to liability according to the product liability law.

c)

Except in the case of deliberation or gross negligence the liability is restricted in any case to the amount of € 1.000,00 in each damage case.

This contract may be concluded with different tenures that being accordingly to the offer of the pricelist that is displayed on the homepage www.PowerFolder.com. Insofar as the contract is concluded for one year this contract is renewed automatically for one year if the client does not cancel the contract by e-mail at the latest two months previous to the expiration of the contract. In all other cases the contract goes on without period in time and may be cancelled at any time by e-mail at the end of the month.

The right to cancellation by cause remains unaffected. After the termination of the contractual relationship the supplier makes available to the client the stored contents on the storage space designated for the client. Rights of retention of the supplier remain unaffected regardless for which reasons. A cause for cancellation for dal33t GmbH exists if because of missing technical compatibility by which token whatsoever the data of the client cannot be uploaded on the storage media therefore provided by dal33t GmbH. The same applies if the program “PowerFolder” for reason of missing technical compatibility or false operation does not function flawlessly on the computer of the client.

Additionally the general conditions of dal33t GmbH apply.

Exclusive place of jurisdiction regarding all disputes out of or in connection with this contract is the place of residence of dal33t GmbH in Düsseldorf (Germany). If dal33t GmbH raises claims dal33t GmbH is entitled to choose the place of jurisdiction at the domicile or place of office or residence of the client.

This contract is governed – under inclusion of its conclusion and its construction – by German law.

a)

Insofar as the client has only acquired a demo-/test-version this contract applies accordingly.

b)

If the demo-/test-version enables the client to upload data on the server, dal33t GmbH is entitled to deactivate the access and uninstall and remove all of the data of that client at any time.

If any of the provisions of this contract should be invalid or contains an inadmissible determination of terms or contains a gap the efficacy of the other provisions remain unaffected. Insofar as the invalidity does not derive from a violation of sec. 305 ff. German Civil Code (application of general conditions) in lieu of the invalid provision a valid provision is agreed that comes closest to the intended economic purpose of the parties. The same applies in the case of a gap. In case of an inadmissible term the admissible term applies.

General Terms and Conditions

§ 1 – Validity

Our conditions are valid only with regard to business persons in the sense of § 310 (German Civil Law). The following sales and delivery conditions are valid for all our contracts, deliveries and services, assuming that they have not been altered or excluded without our specific written permission.
They are also valid, in cases where we execute a delivery or service without explicit reservations, knowing that our customer has his own diverging terms and conditions of General conditions of trade of our contractual partners are only applicable when dealing with if they are confirmed by us in writing.

§ 2 – Offer And Completion of Contracts

Our offers are subject to alteration. Contracts and other agreements will only become binding by our written conformation or through the actual delivery of goods/rendering of service.
All agreements between our customers and us are to be documented in writing when a contract is completed Agreements made during or upon contract completion, between our employees or representatives and our customers, require our written conformation to become valid.

§ 3 – Prices, Price Increases And Payments

Our prices are always to be understood as net prices: packaging, freight, postage and value added tax as per currently valid legal regulation will be added.
For orders which are to be carried out 6 weeks or more after the completion of a contract we retain the right to charge an increased price in case purchase prices and/or wage costs increase.
We retain the right, to deliver quid per quo against payment of the agreed price(s). Our invoices are due for direct payment, net without deduction. A discount for cash payment is not permitted.
For payments made after the due date we may charge an interest rate of 8% above the current official interest base rate of the Bundesbank (German Federal Bank) without any further reminder. If payments of our contractual partner are delayed, we will charge him with the amount of our actual credit costs, at least a minimum of 8 % above the interest base rate of the Bundesbank (German Federal Bank).
Any further claims remain untouched by this regulation. Our invoices are considered accepted, if the customer does not dispute them in writing within 30 days after receipt of said invoice. We will advise the customer of this with every invoice.

§ 4 – Settlement, Right of Retention

Our invoices may not be set against counter demands which are disputed by us and/or not legally confirmed. The right of retention of payment which does not derive from the same contract may be not claimed unless such claims were recognized by us and proven to be legitimate.
In case of a deficiency complaint our customer may only withhold payment when there is no doubt about the right of complaint, and only to the value of the fault which occurred.

§ 5 – Deterioration of Assets of A Contractual Partner

We are authorized to require advance payment in the full amount of the agreed price from our customer if one of the following incidents occurs after or exists already before completion of the contract and is made known to us only afterwards: An insolvency process (either in court or out of court) in reference to the assets of the contractual partner has been submitted or the opening of such a process has been refused due to lack of assets, or, a written credit information from a bank or credit enquiry agency proving the credit unworthiness exists.
Should our contractual partner not fulfil our rightful demand for advance payment within an acceptable deadline, set by us, although we have advised him, that after the end of the deadline we will refuse acceptance of further services from him, we have the right to withdraw from the contract or to demand compensation for non-completion.

§ 6 – Dispatch, Transfer Of Risk, Insurance

All risk is transferred to the customer with the dispatch of the goods, and independently of the place of dispatch and applies as well when we are required to assemble the object(s) of delivery at the premises of the customer, unless the dispatch to the customer’s premises is executed by our own personnel.
In the case that forwarding instructions of our contractual partner are deficient or lacking or it appears to be necessary to diverge from these instructions, we will forward the goods according to our best judgement without being obliged to use the cheapest or fastest way.
We insure the forwarded goods against every insurable risk, in particular against theft and transport damage, only upon the explicit wish and instructions of our contractual partner and at his expense.
In case of transport damages we must be immediately informed. Besides, the recipient is to insure that the respective claims and reservations against the freight forwarder are submitted direct upon delivery.
In case forwarding of the goods is delayed, upon the wish of our contractual partner or out of reasons caused by our contractual partner, the goods are stored at the risk and expense of our contractual partner.
Our contractual partner pays the expense for the dispatch of goods. During the delivery of programs via electronical data transmission he pays his share of the connection costs as well as the fees occurred for the transmission of the program.

§ 7 – Delay of Acceptance By Our Contractual Partner.

Should our contractual partner cause delay in the acceptance of our service, we may either withdraw from the contract or claim compensation instead of the contractual performance after the expiry of an acceptable deadline set by us. Our legal rights resulting from acceptance delays remain unaffected.
The customer has to reimburse us for storage costs, storage rent and insurance costs for goods that are due for delivery but not accepted by him. We are not obliged, however, to insure stored goods in case of acceptance delay.
If delivery is delayed by wish of the customer, or the customer has delayed acceptance of the goods, we may charge storage fees in the amount of 0.5% of the invoice total for per month of the delay, commencing one month after announcing the readiness for delivery. We thereby retain the right to claim a higher rate for any damage which may therefore occur, unless the customer submits in writing proof that no storage fees were raised or not in the requested minimum amount.

§ 8 – Delivery Time

1. Delivery deadlines or dates are only binding, when we have confirmed them in writing.
2. Delivery deadlines may be extended within reason, in the case of force majeur or unpredictable impediments occurring after the signing of the contract and not lying within our responsibility, insofar as such impediments prove to cause a delay in the delivery of the sold object, and also in the case of delay for other reasons. Strikes and lockouts are to be considered occurrences beyond our responsibility in any case. The above regulations also apply if the delaying circumstances occur at our suppliers or sub-suppliers. In case such delivery delays last more than six weeks, our contractual partner has the right to withdraw from the contract and demand the return only of payments he has already made, while any further claims are excluded.
3. In the case of the purchaser’s failure to settle invoices on time, our delivery deadlines will be extended until the purchaser is no longer in arrears – within an ongoing business relation, this applies also for delays resulting from other contracts.

§ 9 – Delay, Exclusion of the Obligation to Deliver

In case our delivery is delayed or the obligation to deliver is excluded our liability is generally as per § 11, no. 5 with the following qualifications:
1. In case our delivery is delayed, the claims for damages by our customers are limited to a flat rate compensation of 1% of the delivery value for every completed week of the delay, with a maximum limit of 8% of the delivery value, whereby we retain the right to prove that no or only slight damage has occurred as a result of the delivery delay.
2. The customer can only claim compensation instead of delivery, if he grants us an acceptable extension of 4 weeks for delivery together with the written confirmation that goods will be refused after this. The customer retains the right to set an appropriate deadline, shorter than 4 weeks, if in agreed special cases an extension of the delivery time of 4 weeks is unacceptable for him.
3. In case our delivery is delayed, our customer has the right to resign from the contract if he grants us an acceptable extension of 4 weeks for delivery together with the written confirmation that goods will be refused after this. The customer retains the right to set an appropriate deadline, shorter than 4 weeks, if in agreed special cases an extension of the delivery time of 4 weeks is unacceptable for him. A customer’s right to resign from the contract applies only to the unfulfilled part of the contract unless the partial fulfilment is agreed to be of no use to the customer.
4. Compensation claims against us for reasons of delayed delivery or exclusion of the obligation to deliver discontinue one year after the statute of limitation has started.
5. The above liability restriction and § 11 no. 5 are not applicable if there is a damage concerning the life, the body, or the health of our contractual partner or in case of damages due to a intentional or gross negligence on our side or on the side of one of our legal representatives or deputies, or, in case of delayed delivery, if the business is a fixed date contract.

§ 10 – Cancellation of Contracts, Acceptance of Return of Goods, Compensation Instead of Performance/Delivery

In cases where we agree to the wish of our customer to cancel a given contract or where we agree to take back goods that were delivered by us and returned for reasons beyond our control and where we exempt the customer from his acceptance and payment obligations, or, where we have the right to claim damage compensation due to non-completion, we can ask 20% of the contract price for the relevant part of the delivery item as compensation, with no obligation of proof on our side. The customer retains the right to prove that no or only slight damage has occurred. Our right to claim an actual damage exceeding this basic amount, remains untouched.

§ 11 – Deficiency Liability and Damage Compensation

 1. Deficiency claims by our customers may only be made if the customer has correctly followed the examination and complaints obligations as described in §§ 377 and 378 HGB (German Trading Code). The complaint must be made in writing.
If the customer fails to submit a correct and timely complaint, he cannot validate claims due to the above described conditions, unless we have acted fraudulently.
2. In case our performance or product is deficient, the rights of the customer are, in principle, as defined by the legal regulations, if he grants us an acceptable extension of 4 weeks for delivery together with the written confirmation that goods will be refused after this. The customer retains the right to set an appropriate deadline, shorter than 4 weeks, if in agreed special cases an extension of the delivery time of 4 weeks is unacceptable for him.
The term for later fulfilment does under no circumstances start before the customer has returned the deficient goods to us. We will in this case take over the cost of sending the goods back.
If only a part of the goods delivered by us is deficient the right of the customer to resign from the contract is limited to the deficient part unless such limitation is considered impossible or unacceptable.
Any claims made by the customer for reasons of deficiency of goods or products delivered will discontinue one year after delivery/acceptance of such goods. Regarding damage claims and the claim for compensation of costs the legal terms apply if there is a damage to life, body, or the health of our contractual partner or in case of damages due to a intentional or gross negligence on our side, on the side of one of our legal representatives or deputies, as well as in a case where we fraudulently concealed the deficiency.
Apart from this, claims of damage compensation will be limited to the amounts described in the following under no. 5.
3. The guarantee is not valid for programs or program segments that have been altered or expanded by our customer, unless our customer proves that such alterations or expansions are not the reason for the fault.
4. In case a contract between our contractual partner is to supply only software programs, interfaces or other goods to our contractual partner for third parties simply against reimbursement of distribution costs (e. g. postage, duplication expenses) we assume no fault free guarantee for such products.
5. Our liability for damage to life, body or the health of our contractual partner due to an intentional breach of duty on our side is neither excluded nor restricted. For other damages to our contractual partner due to breach of duty by gross negligence we are only liable in case of the breach of essential duties of the contract, limited to damages which could under normal circumstances be predicted in the case of such contract (fair and reasonable claim).
Other compensation claims of our contractual partners for reasons of breach of duty, impairment of performance, unauthorized activity or other legal reasons are excluded.
The above liability restrictions do not apply if guaranteed features of our delivery are lacking if and insofar as the guarantee had the purpose to prevent the partner from damages other than direct damage to the delivered goods. Wherever our liability is excluded or restricted this also applies for the personal liability of our employees, agents or representatives. The above liability exclusions are in any case also valid for subsequent damage. However, the above liability exclusions are not applicable to claims resulting from the law of product liability.
6. The customer is obliged, in his own interest of data storage and security, to apply data saving procedures at appropriate regular intervals. If he fails to do so, we are only liable for damage that would also have occurred in spite of correct and regular data saving procedures.

§ 12 – Producer Liability

Regardless of all other rights of exemption and/or compensation for damage, particularly according to §§ 437, 440, 478 BGB (German Civil Code) or for other legal reasons our contractual partner is to exempt us from all damage compensation(s), that may be claimed by third parties due to the regulations regarding unauthorised activity or product liability for deficient goods produced and/or delivered by us, insofar as damages could also be claimed against our contractual partner or are no longer valid simply because the statute of limitation was reached in the meantime. Under such conditions, our contractual partner must also exempt us from the costs of legal disputes, that may be filed against us in connection with such claims.
The above-mentioned regulations are not valid, in the case of intentional or gross negligence on our side in reference to the deficiency or fault.

§ 13 – Right of Retention

 1. Goods delivered remain our property until all current or future obligations of our contractual partners are fulfilled. We may agree to waive this security upon request, if the nominal value of our contractual partner’s debt is considerably higher than 20 % of our debt.
2. We will retain the right to any of our products which are re-processed or rebuilt, without any obligation on our side. In case a product delivered by us is being processed with other means not belonging to us, we obtain co-ownership rights of the newly created product in proportion to the invoiced amounts for the other means and the goods delivered by us, as soon as the goods are re-processed.
In cases where our products are being connected with other movable products and make one new product, and the new product is to be regarded as main product our contractual partner grants us proportional co-ownership, insofar as the main product belongs to him. In the case that a transfer of the goods is necessary to obtain co-ownership this procedure will be replaced by the agreement that our partner safeguards the product for us like a hirer or, if he does not own the product, transfers his right to the product to us, in advance. Products/Goods to which we have a right of (co-) ownership according to the above regulations will be referred to as “reserved goods” or “products” hereafter.
3. Our contractual partner has the right to sell reserved products in the course of business or to use the reserved product as a component of a new product. Our partner transfers the claims resulting from the sale or use or from other legal reasons of the reserved product in advance to us, completely or in proportion to the (co-)ownership ratio. If such claims are included in ongoing invoices the transfer of rights must also be included in such invoices. Cession of claims will be made in chronological order.
Retaining the right of revocation we authorize our contractual partner to collect the transferred financial claims for us. Our contractual partner is obliged to transfer any collected amounts immediately to us, insofar and as soon as our claims are due. Insofar as our claims are not due our partner has to document the amounts collected by him and belonging to us separately. We retain the right to request the claims directly. We will not claim this right as long as our partner fulfils his payment duties resulting from the collected payments and there is no payment delay on his side and no insolvency process or cessation of payments. In this case, however, our partner is obliged to make the transferred claims and the debtors known to us, to give us the relevant documents and to inform us about all facts necessary for the collection of the payments. He is also obliged to inform the debtor about the transfer of the claim. The rights of our partner to re-sell, process, combine, connect or built in reserved products and to collect our payment claims discontinue with the stop of payment, the application for or the opening of an insolvency process or in or outside of court, without our explicit revocation of these rights.
4. Our contractual partner must immediately inform us if third parties attempt to claim any rights to the reserved product or the transferred claims and must pay for any costs of intervention necessary.
5. Our contractual partner must handle reserved products with care, in particular to adequately insure them to their original value against fire, water, or theft at his expense.
6. If our partner acts contrary to the contractual regulations – particularly in the case of payment delay – we have the right to take back the reserved products at his cost or to request the transfer of his right to get reserved products back from third parties. Taking back or impounding reserved products by us does not mean we resign from the contract, unless we explicitly state so in writing.
7. Should our reservation of ownership lose its validity because the product is sold abroad, or should we lose our reservation of ownership for any other reason, our contractual partner is obliged immediately to grant us another way of securing the reserved product or another kind of security which is valid in the country of the purchaser, and comes as close as possible to German law.

§ 14 – Transfer

 Transfer of any kind of claims against us is only permitted with our written authorisation.

§ 15 – Software Rights

1. Our contractual partner is granted a non-exclusive and non-transferable right of use of the products and the accompanying documentation as well as the corresponding amendments, within his operation only. We retain all other rights concerning programs and their documentation including copies and amendments. Our contractual partner is to insure that programs and their documentation are in no way made available to third parties without our previous written consent. Our customer may only request copies for archive or replacement purposes, or for error detection. The supply of source codes requires a specific written agreement.
2. Our contractual partner commits himself unconditionally to the retention of secrecy of all programs, program sections and information recorded in the program and – insofar as this is not necessary to fulfil the purpose of the contract – he will not record, distribute or employ them. The customer is to insure that his employees and/or representatives refrain from all personal use, redistribution or unauthorised recording by means of appropriate contractual agreements with these persons.
3. Contractual Penalty
In any case of intentional violation of the above clauses 1 and 2, our customer will be liable to a penalty of 10 % of the contract amount. In case of such violation, guilt is assumed, unless the customer can prove that the violation occurred unintentionally. We retain the right to validate actual damages exceeding that amount.
4. Installation
We will install the programs for our customers, separately invoiced; the customers must supply the necessary operational hardware, an operating system software and the necessary specialist personnel for the duration of the installation.
We ensure that using the software in accordance with the contractual agreements does not violate the copyrights of third parties and we can be held liable for that. We exempt our customers from claims for damage compensation in cases where the use of the programs in accordance with the contract, violates the copyrights of third parties.
Both we and the customer will inform each other immediately, if a third party claims a violation of copyrights. The customer entrusts us with the decision about legal defence measures or settlement proceedings.
Taking the special conditions of the customer into consideration, we have the choice to obtain the license, to alter, or, if necessary, to replace the software in case a contract-conforming use of the software influences the copyrights of a third party. If we cannot clarify the rights of the third party, for whatever reason, the customer has the right to cancel the contract or reduce the price.

§ 16 – Program Alterations

We retain the right, to alter, further develop, and improve the program(s) or to replace it (them) by new developments. We are prepared but not obliged to carry out alterations or adjustments. Should the customer desire alterations or adjustments we have the right to charge a reasonable fee.

§ 17 – Software Return and Deletion

If the software contract or the contract of use ends, the customer must delete all programs given to him within one month, including adjusted and altered versions as well as copies and all documentation. He has to return all data carriers given to him. The customer must confirm to us in writing the completed deletion.

§ 18 – Secrecy

1. The customer must maintain unconditional secrecy regarding all information, documentation, business or company secrets obtained from us in connection with the contract between him and us, whether they are known or otherwise accessible or becoming accessible. Such information may not be recorded, distributed or otherwise employed, insofar as this is not necessary to fulfil the purpose of the contract.
Excepted from this is information forming part of the general level of technology, information which is otherwise generally available, or information being already in the legal possession of the customer or which he has rightfully obtained from third parties.
The customer is obliged to assure that his employees, representatives or agents, his independent sub-contractors or suppliers also uphold the secrecy agreement, insofar as they have access to information, documents, business and company secrets through their work, by the appropriate measures.
2. In every case of culpable violation against the obligations mentioned under clauses 1 and 2, a customer owes us a contract penalty of 10 % of the contract amount. In case of a violation guilt is assumed unless the customer can prove that the violation occurred without intention. We retain the right to validate a further damage.

§ 19 – Place Of Completion, Court Of Jurisdiction, Applicable Law

The place of completion and exclusive Court of Jurisdiction for deliveries and services including complaints regarding cheques and bills of exchange as well as all possible disputes arising between the contractual parties is the registered office of Christian Sprajc in Germany, but we retain the right to prosecute a customer at another Court of Jurisdiction, at whatever court he is subject to, in compliance with § 12 ff. ZPO (German Legal Code).
The relations between the contractual partners are exclusively regulated by the laws for the Federal Republic of Germany under exclusion of the international purchasing laws, in particular the UN-purchasing laws, and other international agreements for the unification of the purchasing law.

Disclaimer

Conditions of the internet

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