§ 1 Scope and applicability
(1) The following SoftVision Development GmbH (“SoftVision”) General Business Terms & Conditions (the “Agreement”) apply exclusively. SoftVision does not recognize any customer terms and conditions that conflict with or vary from its terms of sale, unless it has expressly agreed to their applicability in writing. SoftVision’s terms of sale also apply in cases when SoftVision is aware of customer terms and conditions that conflict with or vary from its sales terms, and executes delivery to the customer unconditionally.
(2) SoftVision’s offers, products, and services are directed exclusively to entrepreneurs within the meaning of § 14 German Civil Code (Bürgerliches Gesetzbuch).
(3) This Agreement constitutes the entire understanding between you (the “Customer”) and SoftVision relating to the execution of this Agreement.
§ 2 Contracting
(1) The information contained in brochures, advertising, documentations and other written materials is a description only and not a warranty of product qualities or characteristics. An express written agreement is required for any warranty. The same also applies for upgrades, updates, error recovery (bug fixes, service packs) and price quotes. The information pertaining to technical details, specifications and performance descriptions provided in the software product description do not constitute a warranty with respect to the qualities and characteristics of the software unless SoftVision expressly confirms such in writing.
(2) Unless otherwise agreed in writing or stipulated differently in the offer itself, SoftVision’s written offers are binding for a period of 30 days. This period will begin with date of the offer.
(3) SoftVision can accept a customer order within 2 weeks if the order constitutes an offer within the meaning of § 145 German Civil Code.
(4) A contract is formed upon the timely acceptance of SoftVision’s offer by the Customer.
(5) SoftVision will immediately acknowledge receipt of orders placed electronically.
(6) The mere providing of software, maintenance, other services, or accessories neither constitutes nor is a substitute for a confirmation.
(7) Regardless of the time and form of the agreement, agreements on the Customer’s rights to the software (software license agreement), its updating (the “Subscription”), and maintenance (maintenance contract) are legally independent and form separate contracts with respect to rights and obligations, legal consequences and warranties.
§ 3 Pricing and payment terms
(1) Unless otherwise stipulated in the offer, prices do not include installation, which will be invoiced separately. SoftVision’s prices do not include value-added tax, which will be shown separately on the invoice in the statutory amount effective on the date invoicing is made.
(2) Unless otherwise stipulated in the offer, the purchase price is due and payable in full within 30 days of the invoice date. Legislative rules and regulations will apply with respect to the consequences of payment default. A separate written agreement is required for the granting of any cash discounts.
(3) The Customer is entitled to offset only insofar as its counterclaims are undisputed, acknowledged by SoftVision, or assessed in a legally binding judgment. Furthermore, the Customer is entitled to assert its right of retention only to the extent its claim is based on the same contractual relationship.
(4) SoftVision may forward Customer information to third parties to the extent they require such for debt collection purposes.
(5) SoftVision retains title to the delivered software programs until receipt of all payments in full. Should SoftVision withdraw from the agreement, such as for reasons of payment default on the part of the Customer, then it is entitled to prohibit any further use of the software and demand that all copies of the software be surrendered, or be deleted if surrender is not possible. In the event of any third-party intervention in the goods subject to retention of title prior to the receipt of full payment of the contracted software, the Customer is obliged to inform the third party about the retention of title and immediately notify SoftVision in writing about the intervention made by that third party.
§ 4 Product and delivery
(1) The Customer will receive the contracted software in an executable form (object code) together with the documentation. The source code is not provided.
(2) Depending on the agreement, the software will be delivered either on a data storage medium sent to the delivery address stated on the order form, or by transmission of a key for downloading sent to the delivery e-mail address stated on the order form.
(3) The license keys for activating the product are delivered either electronically using an e-mail sent to the delivery e-mail address stated on the order form, or as a download from the SoftVision website.
(4) In the case of a Subscription purchase, updates are delivered in the same form and manner as the initial software delivery. If the initial software delivery was made using a data storage medium, then data storage media containing the updates will be sent to the stated delivery address; if a key for downloading was transmitted, then keys for downloading the updates will be sent to the delivery e-mail address stated in the order form.
(5) Update deliveries will only be made to new addresses when SoftVision is notified in writing or by an e-mail sent to firstname.lastname@example.org of a change in the delivery address or delivery e-mail address in a timely manner and not later than two weeks prior to the scheduled update delivery.
(6) No hardcopy version of the documentation is provided. The documentation mainly consists of electronic help features.
(7) Installation of the software is not included in the agreement, but can be contracted for separately, in which case SoftVision’s service terms will apply.
§ 5 Licenses
(1) The latest SoftVision Software Licensing Terms & Conditions also apply for software licenses.
(2) Upon payment of the agreed one-time fee, SoftVision grants to the Customer a right to use the software permanently that is non-exclusive and unlimited in terms of place.
(3) In the case of client licenses, one software unit entitles the Customer to use the software on a maximum of one (1) output device/workstation, and in the case of server licenses on a maximum of one (1) server.
(4) The license must be expanded by the addition of appropriate capacity should the Customer wish to use the software on more than one output device/workstation or server. SoftVision’s separate price list for license expansions will apply for license expansions that do not involve redelivery of the software. A later expansion of the license without redelivery of the software does not come with a new warranty. As part of a Subscription, Customers will receive the same number of licenses to the newest version of the software as were purchased for the original version.
(5) Any use of the software beyond the contractually agreed scope, particularly the concurrent use of the software on more than one output device/workstation or server per purchased software unit, is a breach of contract. The Customer will inform SoftVision about any overuse without delay. SoftVision and the Customer will attempt to reach an agreement about expanding the license. The Customer will pay SoftVision compensation in accordance with its price list for the period of overuse, i.e. until an agreement about expanding the license is concluded or the overuse is terminated. Four-year straight-line depreciation will be used as the basis for calculating the amount of compensation. A penalty of three times the price of the appropriated usage according to SoftVision’s price list will be charged if the Customer intentionally or through gross negligence fails to inform SoftVision about the overuse.
(6) The Customer may make one backup copy of the software and perform everyday data backups. The making of more copies than are required for the contractual use of the software, including the backup copy and data backups, is prohibited.
(7) The Customer may not decompile, modify or edit the software beyond what is provided for by law, i.e. as needed for creating an interface to other software products or for correcting errors in the software.
(8) Copyright notices and other proprietary markings within the software may not be removed or modified, and must be transferred onto every copy of the software.
(9) Resale of the software is permitted only as a software unit in its entirety. This means that the Customer may only provide the software to a third party after relinquishing its own use of the purchased unit, and in so doing transfer to that third party the right to use the software according to the terms of the agreements existing between the Customer and SoftVision. When transferring the software to a third party, the Customer is required to hand over to the third party all of the materials relating to the licensed software and to remove the software from its remaining data media.
(10) In the event that the third party being transferred the software is a service company to which the Customer outsources its data processing, this service company will only be authorized to use the software for the Customer exclusively. No contractual relationship between SoftVision and the third-party company will arise from the transfer of the right to use the software to this third-party company. Any transfer requires SoftVision’s express written approval. SoftVision will only deny the Customer its approval for good cause.
§ 6 Defects in material and title
(1) The software provided to the Customer as a software package or download will be free of defects in material and title.(2) A defect in material exists when the software is unsuitable for the purpose described in the documentation that appears on the SoftVision website or is delivered or downloaded with the product.
(3) SoftVision checks continuously to ensure that no representations regarding the functionality and characteristics of the software beyond those contained in the documentation are made elsewhere. The Customer should therefore assume that any descriptions of the software beyond those contained in the documentation neither originated from, nor are known to SoftVision. The Customer is requested to notify SoftVision should it learn of any descriptions of the software that include functions and characteristics not included in the documentation.
(4) A defect in title exists when the rights required for use in accordance with the agreement are not validly granted following delivery of the software.
(5) Claims relating to defects in material and title are subject to a regular limitation period of two years. However, the period for claims for damages arising from defects in material and/or title is only one year to the extent that SoftVision does not assume unlimited liability in accordance with § 7 (2) and (3).
(6) The limitation period for claims arising from a defect in material is three years when SoftVision fraudulently concealed the defect.
(7) After the end of the limitation period, payment of the fee may be withheld to the extent that the Customer would be entitled to do so for reason of a withdrawal or a reduction in price.
(8) The limitation period begins with the delivery of the software package or licensing documents, or in the case of a downloading agreement, as soon as the Customer has received the keys required for the download.
(9) The Customer will notify SoftVision, preferably in writing, about any defects that arise immediately after their discovery. To the extent possible, this notification should also include a description of the defect and its consequences, and under what circumstances the defect appears.
(10) SoftVision will provide remedy at no charge when defects are reported to it during the limitation period.
(11) As part of remedy, SoftVision will deliver the corrected software to the Customer in the same form and manner as originally agreed. No on-site error analysis or correction will be made on the Customer’s system.
(12) The software product provides the ability to separately save any proprietary data that the Customer may have already placed into the software, and then easily reload this data after reinstalling the software. Correcting software that contains proprietary Customer information would entail an unreasonable effort and expense on the part of SoftVision. The Customer may only then demand this kind of correction as an exception when, because of the defect, the information placed in the software cannot be saved separately and be reinstalled, and when such a correction is reasonable for SoftVision.
(13) SoftVision will assume the expenses that arise in connection with the remedy, in particular the costs of shipping, travel, labor and materials. The Customer is responsible for installation. SoftVision specifically does not undertake installations on site as part of its obligations with respect to defects in material or title.
(14) SoftVision will make the required changes in the documentation at no charge when remedy involves making a change in the software program.
(15) Once a deadline for remedy set by the Customer has lapsed, the Customer can withdraw from the agreement or reduce the price and demand damages in lieu of performance or reimbursement of wasted costs.
(16) Setting a deadline is not required when a) SoftVision refuses both kinds of remedy even when entitled to do so because of the ensuing costs, or b) remedy is impossible, or c) the remedy is unreasonable for the Customer, or d) the remedy has failed. A remedy is considered failed after the second unsuccessful attempt, unless a different situation arises from the nature of the software or defect in particular, or from other circumstances.
(17) In the case of minor defects, the Customer is not entitled to withdraw from the agreement or claim damages in lieu of full performance.
(18) Compensation will be made for beneficial use in the event of withdrawal. The compensation for such use will be calculated based on a four-year straight-line depreciation of the purchase price.
(19) In determining a price reduction, the purchase price will be reduced by that amount corresponding to the loss in value to the software caused by the defect as measured against the purchase price. The value at the time of contracting will be used. The amount will be determined by estimation as necessary.
(20) In the case of a price reduction, any amount previously paid in excess of the reduced purchase price will be refunded.
(21) Should it be determined that a reported problem was not attributable to a defect in the software, SoftVision will, in accordance with its price list for services, be entitled to invoice the Customer for the costs that ensued from the analysis and correction of the problem when the Customer recognized or negligently failed to recognize that there was no defect.
(22) SoftVision is not required to honor the terms of its warranty if any modifications are made to the software without its express written approval, or when the software is used in other than the intended manner or software environment, unless the Customer can prove that these circumstances are not related to the error that occurred.
§ 7 Limited liability for damages
(1) SoftVision’s liability for damages for whatever legal reason is limited as set forth in the following provisions. SoftVision’s liability is not limited for damages caused by willful misconduct or gross negligence on the part of SoftVision or one of its employees, agents or legal representatives.
(2) SoftVision’s liability for damages arising from injury to life, limb or health is also not limited when due to a simple negligent breach of duty on its part or that of one of its employees, agents or legal representatives.
(3) Also not limited is SoftVision’s liability for damages stemming from serious organizational faults on its part and for damages caused by the absence of a guaranteed quality or characteristic.
(4) For breaches of material contract obligations on the part of SoftVision or one of its employees, agents or legal representatives, liability will be limited to the typical, predictable damages for such contracts, provided such does not involve those cases listed under § 7 (2) and (3).
(5) All further liability for damages is excluded, particularly liability without fault.
(6) Liability under the German Product Liability Act (Produkthaftungsgesetz) remains unaffected.
(7) If damage is the fault of both SoftVision and the Customer, then the Customer must make allowance for its contributory negligence.
(8) The Customer is responsible for making regular backups of its data. For this reason, SoftVision’s liability for any loss of data it may cause is limited exclusively to the costs of reproducing the data from the backup copies that the Customer is required to make and to recovering that data, which would have been lost had a proper backup of the data been made.
§ 8 Subscription term and termination
(1) SoftVision’s current subscription terms and conditions also apply to Subscriptions.
(2) Subscriptions have an initial term of two (2) years and are invoiced annually in advance.
(3) Unless otherwise stated in the written Subscription, the contract term begins on the date specified for the license for which the Subscription was made as noted on the invoice.
(4) Subscriptions may be terminated by providing three months written notice to the end of the contract term. An e-mail sent to email@example.com is considered proper written notice. Subscriptions will be extended automatically for one additional year if not terminated within the period stipulated.
§ 9 Training courses
(1) SoftVision offers and invoices training courses on a separate and individual basis.
(2) The training course content, duration, number of participants and location will be geared to the needs of the Customer, and be stipulated and agreed to in writing within an adequate period prior to the scheduled start of training.
(3) The Customer will cooperate in the fulfillment of the contracted services, to include providing all of the documents required for training without delay. This stipulation applies in particular when the training content relates to situations, environments and data that is specific to the Customer.
(4) SoftVision will endeavor to conduct the training on the scheduled dates and provide a replacement if the instructor is unable to teach the course for medical reasons. SoftVision is entitled to postpone the fulfillment of its training obligation by the duration of the impediment plus an appropriate grace period should an event of force majeure occur (including instructor illness) that significantly impairs or makes rendering the service impossible. SoftVision assumes no liability in such cases.
(5) The seminar materials and software provided are the intellectual property of SoftVision and may not be reproduced in any form.
(6) The training content presented is not to be construed as making any warranties or representations about the characteristics or quality of SoftVision’s products.
(7) SoftVision is entitled to employ subcontractors to fulfill its contractual obligations.
§ 10 Final provisions
(1) Changes or amendments to this Agreement and the provisions contained therein must be made in writing.
(2) This Agreement will be governed by German law. The UN Convention on Contracts for the International Sale of Goods (CISG) does not apply.
(3) The exclusive place of jurisdiction is Fulda, Germany.
Fulda, Germany, 1 February 2015