General Terms and Conditions of Sale including terms of licence for Software provided by Mahr GmbH
I. General terms and conditions of sale
§ 1 General terms, scope of application
(1) The following general terms and conditions of sale (“Terms”) shall govern all business relationships with our customers (“Purchaser”). These Terms shall only apply where the Purchaser is acting in the course of his business within the meaning of §14 of the German Civil Code (BGB), is a public law entity or a federal special fund.
(2) These Terms shall apply in particular to the sales and/or delivery of movable goods (“Goods”) irrespective of whether such Goods are manufactured by ourselves or procured from suppliers (§§433, 651 of the German Civil Code (BGB)). Except where otherwise agreed the Terms in force at the time the Purchaser places his order, alternatively the version last provided to the Purchaser in text form, shall constitute the legal framework for all future purchases of a similar kind without us being required to indicate their application for each individual transaction.
(3) Our Terms shall apply exclusively. Any terms of the Purchaser which contradict or deviate from the terms and conditions below shall only apply where we have expressly agreed to the same in writing. Our consent is required without exception, for example where, on notice of the Purchaser’s general terms and conditions, we execute the supply without reservation.
(4) Any individual agreement made with the Purchaser (including ancillary, supplement and change agreements) shall in any event override these Terms. The written agreement alternatively our written confirmation shall be definitive in determining the content of such agreements in the absence of proof to the contrary.
(5) Material declarations and notifications to be submitted by the Purchaser after the contract has been concluded (e.g. the setting of deadlines, notification of defects, notices of rescission or deductions) shall only be valid when submitted in text form.
(5) Insofar as is necessary for the handling of our business we are entitled to store and process the Purchaser’s data in electronic form to the extent permitted by data protection laws.
§ 2 Contractual declarations
(1) The range of products and services we offer is subject to change without notice. This also applies where we have provided the Purchaser with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN Norms), other product descriptions or documents – including in digital form - to which we reserve ownership rights and copyright.
(2) The purchase order placed by the Purchaser shall be deemed a binding offer. Except where otherwise provided in the purchase order the order shall be capable of acceptance for a 2 week period beginning on the date of receipt of order.
(3) Acceptance will be communicated in text form (e.g. the order acknowledgement) or will be deemed on supply of the Goods to the Purchaser.
§ 3 Delivery, risk, delay in acceptance, part deliveries
(1) The Goods will be supplied Ex Works (EXW Incoterms 2010) which is also the place of performance for delivery of the Goods and for any supplementary performance. At the request and the expense of the Purchaser the Goods will be shipped to another destination (sale by delivery to a place other than the place of performance). Except where otherwise agreed we shall be entitled to determine the method of shipment (in particular the shipping company, shipping route and packing).
(2) The risk of accidental loss and deterioration of the Goods shall transfer to the Purchaser on delivery at the latest. In the event of a sale by delivery to a place other than the place of performance the risk of accidental loss and deterioration of the Goods as well as the risk of delay shall pass to the Purchaser on surrender of the Goods to the shipper or freight forwarder or any other person instructed to undertake shipment.
(3) Where the Purchaser is in delay of acceptance of the Goods or fails to undertake acts of assistance or where delivery is delayed for other reasons for which the Purchaser is responsible, we shall be entitled to demand compensation for damages incurred as a result including additional expense (e.g. storage costs).
(4) In relation to make and hold orders approximately the same quantities shall be called off each month except where otherwise agreed in writing. The entire order quantity shall be deemed called off one month after the expiration of the call off deadline, or in the absence thereof twelve (12) months after the contract date. Where the Purchaser fails to assign goods ordered to a certain delivery within one month after the expiry of the deadline for such assignment, or in the absence of an agreed deadline, within one month of our request for such assignment, we reserve the right to assign the goods at our discretion and deliver the same.
(5) Supply of goods or services by installment is permitted except where unreasonable for the Purchaser
§ 4 Act of god, frustration of contract, reservation of performance
In the event of an act of god which affects either ourselves or our suppliers, we are entitled to suspend performance of our obligation to deliver for the duration thereof. The same shall apply in the event of a shortage of energy, raw materials, strikes, enactments passed by the authorities or interruptions of operations or transit. Where there is a considerable change in the circumstances prevalent at the formation of the contract which renders performance unreasonable, we reserve the right to rescind the contract. The performance of our obligations is subject to their compliance with national and international trade legislation, sanctions and embargos.
§ 5 Term of delivery, delay
(1) The term of delivery shall be agreed on a case by case basis alternatively we will advise the delivery term on order acceptance.
(2) The commencement of the delivery term quoted shall be subject to clarification of all technical matters and proper and timely performance by the Purchaser of its obligations.
(3) Where we are unable to fulfill binding delivery dates for reasons for which we are not responsible (non-availability of performance), we shall notify the Purchaser without delay and at the same time inform the Purchaser as to the new estimated delivery date. Where performance is still not possible by the new delivery date we are entitled to rescind the contract in part or in whole. For the purposes of this clause non-availability of performance shall include the failure of our suppliers to supply us on time despite us having placed a corresponding order to cover the transaction and neither our supplier or ourselves are at fault or where, in isolated cases, we have no procurement obligation under the contract.
(4) Where we fail to deliver upon an agreed delivery date and such failure is caused by an act or omission on our part the Purchaser shall grant us an extension in writing of not less than 5 weeks. Where upon the expiry of the grace period, delivery is still not forthcoming and the Purchaser desires to rescind the contract or demand damages in lieu of performance, the Purchaser shall prior thereto set a final and reasonable deadline in writing expressly indicating his intention. The Purchaser is obliged at our request to declare within a reasonable period whether he shall rescind the contract due to the delay in delivery and/or demand damages in lieu of performance or insist upon performance.
(5) Purchaser’s rights in accordance with clause 9 of these Terms and our statutory rights, in particular with regard to the preclusion of our performance obligation (e.g. where performance or supplementary performance is frustrated or becomes unreasonable) shall not be affected by the aforesaid.
§ 6 Price, payment, set off, right of retention
(1) Our prices are Ex Works (EXW Incoterms 2010). Except where otherwise agreed they do not include packing, insurance, freight and VAT. Where we have agreed to assemble or install the goods and in the absence of any agreement otherwise the Purchaser shall bear all necessary ancillary costs associated therewith including travel expenses, the cost of the shipping of tools and personal luggage and disbursements in addition to the agreed price.
(2) In the event of a sale by delivery to a place other than the place of performance the Purchaser shall bear the shipping cost from the place of storage and, where requested by the Purchaser, the cost of insurance. The Purchaser shall bear all customs duties, charges, taxes and any other public dues.
(3) The Purchaser shall remit payment of the agreed price without deduction within 30 days of receipt of invoice and delivery of the Goods. We reserve the right at all times, including during an ongoing business relationship, to render performance subject to pre-payment of the purchase price. Any such reservation will be notified to the Purchaser on confirmation of order.
(4) Upon expiry of the payment term the Purchaser shall be deemed in default of payment. Interest shall accrue on the price during default at the statutory rate. We reserve the right to claim additional compensation for payment default. Interest claims against persons acting in the course of their business in accordance with § 353 of the German Commercial Code (HGB) shall remain unaffected by the aforesaid.
(5) The Purchaser may only set off undisputed counterclaims or counterclaims against which we have no further recourse to appeal. The Purchaser shall only be entitled to rights of retention in so far as these are based on the same legal transaction. Where the Goods supplied are defective, Purchaser’s rights under § 8 (6) below shall remain unaffected.
(6) Where the delivery or performance date is more than 3 months after the contract date we are entitled upon timely notification to the Purchaser and prior to delivery or performance to adjust the price in such a manner as is necessitated by any general price development beyond our control (e.g. advance performance, exchange rate fluctuations, currency regulations, customs duties changes). In relation to framework agreements with a price clause the three month period shall begin to run upon the effective date of the agreement. This shall not apply to metal prices and surcharges to cover metal price increases which are which are set out in the order acknowledgement and are binding.
§ 7 Retention of title
(1) We retain title to the Goods until payment of all current and future claims under the contract and any ongoing business relationship (Secured Goods) have been received.
(2) Goods which are subject to a reservation of title shall not be mortgaged or assigned by way of security to third parties prior to receipt of full payment. The Purchaser shall inform us in text form without delay where an insolvency application has been made or where levies of execution (attachment orders) are made against the Secured Goods.
(3) Where the Purchaser is in breach of his contractual obligations, in particular where he fails to remit payment of the price, we are entitled to rescind the contract subject to the statutory requirements and to demand the surrender of the Goods based on our reservation of title and the rescinded contract. Where the Purchaser fails to remit payment of the purchase price we are only entitled to enforce those rights where, prior thereto, we have set the Purchaser a reasonable deadline to remit payment or the setting of such a deadline is not required legally.
(4) The Purchaser is authorised to resell or process the Secured Goods in the ordinary course of his business. In such circumstances the following shall apply:
(a) The reservation of title shall extend in its full value to products which originate from the processing, mixing or combining of the Secured Goods. Where after the processing, mixing or combining of the Secured Goods with third party goods third party property rights remain in existence, we shall acquire joint title to the resulting products in proportion to the invoice value of the Secured Goods which have been processed, mixed or combined. The originating product shall otherwise be subject to the same terms which apply to the Secured Goods as set out aforesaid.
(b) Claims against third parties based on the resale of the Secured Goods or the resulting products are hereby assigned by the Purchaser to us by way of security in the value of our co-ownership as set out in the preceding paragraph (a). We accept such assignment. Purchaser’s duties as set out in § 5(2) shall apply to assigned claims accordingly.
(c) The Purchaser shall remain authorised to collect payment in addition to ourselves. We undertake not to collect payment for as long as the Purchaser complies with his payment obligations to us, there is no deficiency in his performance capability and we have not exercised our rights under § 7 (3) aforesaid. In such circumstances we can request the Purchaser to inform us of the assigned claims and their debtors, to provide us with any information required to collect payment and corresponding documentation and to inform the debtors of the assignment. Furthermore in such circumstances we are entitled to revoke Purchaser’s authorisation to process and resell the Secured Goods.
(d) If the value of the securities provided to us exceeds our claims by more than 10 percent, we undertake to release securities of our choice on demand by the Purchaser. Where we assert a claim based on reservation of title this shall only be deemed to be rescission of the contract as well where we expressly declare the same in writing beforehand.
(5) In the event that the above retention of title clauses are void or unenforceable according to the law of the state/country in which the goods are situated, the collateral security which corresponds to the retention of title in that state/country is deemed to be agreed.
§ 8 Purchaser’s rights in the case of defects (excluding Software)
(1) The Goods supplied by us correspond to the German regulations and standards currently in force. We give no guarantee that the Goods comply with other national regulations. Where the Goods are to be put into operation overseas it is the responsibility of the Purchaser to ensure that the Goods are in conformity with the relevant legal requirements and standards and where required to make appropriate adaptations.
(2) Purchaser’s rights regarding material defects or defects in title (including wrong or short delivery) are governed by the statutory provisions except where provided otherwise below:
(3) Purchaser’s claims under warranty are subject to compliance with his statutory obligation to inspect incoming Goods and to notify us of any defects discovered (§§377, 381 of the German Commercial Code (HGB)). Where a defect is discovered on or subsequent to inspection, the Purchaser must inform us without delay in text form, in any event no later than 28 days after delivery. Timely dispatch of notice is sufficient to preserve Purchaser’s rights under warranty. Irrespective of the aforesaid inspection and notification obligation the Purchaser is under an obligation to notify us of obvious defects (including wrong and short delivery) without delay in text form, in any event no later than 28 days after delivery. Timely dispatch of notice is sufficient to comply with the notice requirement. Where the Purchaser fails to carry out the inspection and/or notify us of a defect, we shall not be held liable for such defect.
(4) Where the Goods delivered by us are defective we shall at our option deliver a replacement or remedy the defect (supplementary performance). The Purchaser shall grant us a reasonable period of not less than 15 working days to carry out the same. The Purchaser shall return the defective Goods for testing. Where we deliver a replacement the Purchaser shall return the defective Good in accordance with the statutory provisions. Supplementary performance does not include the disassembly of the defective object nor does it include its reassembly provided that we were not originally under a duty to assemble the Goods supplied.
(5) We bear the cost of testing defective Goods, remedying the defect or delivering a replacement including transport, travelling expenses, labour and material cost and where appropriate we shall reimburse removal and assembly costs provided that the Goods are actually defective and that the costs are not increased due to the subsequent transportation of the Goods to a location other than the original shipment location - unless the purpose for which the Goods are intended requires the same. Where the Goods are not actually defective we reserve the right to claim reimbursement of the expenses incurred (in particular inspection and transport costs) from the Purchaser except where the Purchaser was unable to identify the absence of defect.
(6) In the event that we are not in a position to remedy the defect or deliver a replacement the Purchaser is entitled to rescind the contract or to demand a reasonable reduction in the purchase price. Rescission of the contract is only permissible where the Purchaser prior thereto sets a final and reasonable deadline in text form expressly indicating his intention.
(7) Any claims of the Purchaser for compensatory damages or reimbursement of wasted expenditure based on defective Goods are subject to the provisions set out in § 9 below. Otherwise they are excluded.
§ 9 Other liability
(1) Except where otherwise provided in these Terms including the following provisions we are liable for contractual and non-contractual breaches in accordance with the applicable statutory provisions.
(2) We are liable in damages for any claim irrespective of its legal basis where we have acted with willful default or in a gross negligent manner. For claims based on negligence we are liable in accordance with the statutory provisions as follows:
(a) Liability for damages based on personal injury are not subject to any limitation of liability.
(b) Liability for damages based on breach of a material term of the contract are limited to compensation for damages which were foreseeable and are ordinarily incurred; a material term of the contract is any term which is characteristic of performance of the contract and upon which the Purchaser could normally rely.
(c) Liability for any other damages, other than those incurred by the Goods themselves, to include without limitation loss of profit or any other pecuniary loss incurred by the Purchaser, is excluded.
(3) The limitations of liability set out in § 9 (2) aforesaid shall apply to breaches of all persons for whom we are legally responsible. They do not apply where we have given a guarantee as to the quality of the Goods and in relation to claims of the Purchaser made under the Product Liability Act (Produkthaftungsgesetz).
(4) In the event of a breach which does not render the Goods defective the Purchaser shall only be entitled to terminate or rescind the contract where we are responsible for the breach. Notice of termination or rescission must be in writing. Notice by email or facsimile does not suffice the written form requirement. Otherwise the statutory provisions shall apply.
(5) Any claim made by the Purchaser for reimbursement of wasted expenditure shall be subject to the aforesaid.
§ 10 Limitation
The limitation period for claims based on the supply of defective Goods and services as well as for claims for damages is one year from the date of delivery or acceptance (if applicable). The limitation period aforesaid shall not apply in relation to claims based on wilful default, gross recklessness, or to personal injury claims and to claims under product liability laws nor shall the limitation period apply where longer limitation periods are prescribed by law.
§ 11 Intellectual property rights, copyright
(1) The supply of Goods or works shall not be deemed to confer the grant of a licence to use any of our intellectual property rights or copyright. Any such grant of licence shall be subject to a separate agreement.
(2) In the event that the Goods supplied violate third party intellectual property rights we shall be entitled at our option to obtain the required intellectual property rights or a licence to use the same within a reasonable period or to supply the Purchaser with an acceptable alternative. §12 Provision of materials
Where it is agreed that the Purchaser shall provide materials, the Purchaser shall provide the same free of charge, in good time and ensure that they are of proper quality. The aforesaid shall apply in relation to any technical documentation or specifications required for performance. Any materials and documentation provided shall remain the property of the Purchaser.
Our liability under warranty, under product liability laws or for default of delivery shall be excluded insofar as such liability is caused by materials, documentation or specifications supplied by the Purchaser with hidden faults or late supplies despite requests for supply in good time. The same exclusion of liability shall apply where the Purchaser prescribes the materials in accordance with his specifications and/or prescribes the source of supply, including where we are bound by the terms of the agreement to order the same at our own cost.
§ 13 Installation works (1) Where the Purchaser requires installation works the installation site must be freely accessible. Where this is not the case any additional cost incurred as a result shall be invoiced to the Purchaser.
(2) Where we are instructed to carry out installation works we are entitled to use sub-contractors.
(3) The Purchaser shall bear the cost of all earth, construction and other ancillary works which are unrelated to the work to be provided by us including the provision of the requisite specialists and assistants, building materials and tools, such objects and materials as are required for the assembly and installation of the goods, lifting and other devices, fuels and lubricants as well as energy and water at the point of utilization including the prompt provision of connections, heating and lighting.
(4) The Purchaser shall ensure that at the place of installation all machine parts, apparatus, materials, tools etc. are properly stored. The Purchaser shall be under an obligation to provide adequate dry lockable rooms and to place at the disposal of the installation staff adequate working and rest areas including adequate sanitary facilities. Furthermore the Purchaser shall use all reasonable endeavours to protect and treat our property and our installation staff well at all times.
(5) Protective clothing and protective equipment which are required due to special circumstances at the installation site shall be provided by the Purchaser.
(6) Prior to the commencement of installation works the Purchaser shall provide unrequested all information concerning the position of hidden electricity, gas and water mains or similar supplies and the requisite structural drawings.
(7) Prior to the commencement of erection or installation works all materials and objects required shall be available at the erection or installation site and all preliminary works shall be sufficiently advanced in order that the assembly and installation works can be commenced as agreed and executed without interruption. Access roads and the erection / installation site shall be cleared and made level.
(8) Where assembly, installation or acceptance of the works is delayed for reasons for which we are not responsible, the Purchaser shall bear the reasonable cost of any waiting time and additional travel expenditure incurred by us or our installation personnel.
(9) The Purchaser shall on a weekly basis confirm to us the working hours of the installation personnel as well as completion of the assembly, installation and commissioning of the works.
(10) Any additional material or labour cost required which was not foreseeable at the time the order was placed shall, unless otherwise agreed, be invoiced separately.
§ 14 Acceptance of works
(1) Where for the performance of works acceptance has been agreed, we shall be entitled upon completion – where appropriate prior to the completion date – to request acceptance of performance. The Purchaser shall accept performance within 12 working days of our request; an alternative deadline can be agreed where appropriate. Where requested self-contained works can be accepted separately. Acceptance shall only be refused pending the remedy of significant defects.
(2) Where no acceptance is required the works shall be deemed accepted upon the expiration of 12 working days after written notification of completion. Where no acceptance is required and the Purchaser has commenced operation, in whole or in part, the works shall be deemed accepted 6 days after the commencement of operation, unless otherwise agreed. The use of parts of the structural installations for the continuation of of works shall not be deemed acceptance for the purpose of this sub. para. (2).
(3) Any reservations based on known defects or contractual penalties must be claimed by the Purchaser within the deadlines set out in sub. paras (1) and (2) aforesaid.
(4) The risk of loss and destruction shall pass to the Purchaser upon acceptance insofar as it has not already passed in accordance with § 3 sub. para 1 above.
§ 15 Non disclosure
(1) During the term and after termination of this contract the parties shall not disclose to third parties or use for their own business aims without authorisation any confidential information (to include without limitation quotations, documents, samples, sketches, business intentions, personal data, problems, data and/or problem solutions, or any other know-how of any kind as well as information visually gained by the inspection of plants or facilities) received from the other party or of which the parties became aware by reason of their collaboration. The aforesaid non-disclosure obligation shall also apply in relation to the existence and content of this contract. The parties shall also impose this obligation upon their employees.
(2) This non-disclosure obligation shall not apply to information which - was already known to the other party prior to the contract ; - was legally acquired from third parties; - is or comes into the public domain or is the state of the art ; - cleared for disclosure by the disclosing party.
(3) Upon termination of the contract the parties shall return unrequested all confidential documents and information of the other party in tangible or non-tangible form or at the request of the other party destroy the same or insofar as technically reasonable irrevocably delete the same.
(4) The parties shall comply with data protection law requirements, in particular where access is granted to the premises or hardware or software of the other party. They shall undertake suitable measures to ensure that vicarious agents and third parties acting on their behalf shall also comply with the same.
§ 16 Custom made goods
(1) Orders placed by the Purchaser for custom made Goods can only be terminated by the Purchaser for good cause for which we are responsible.
(2) Where the Purchaser fails to accept Goods manufactured to the specification provided by the Purchaser, we are entitled to dispose of the Goods upon the expiration of a reasonable collection deadline communicated to the Purchaser in text form.
§ 17 Choice of law, jurisdiction
(1) These Terms and all legal relations between us and the Purchaser shall be governed by the laws of Germany excluding the United Nations Convention on the International Sales of Goods (CISG).
(2) For Purchasers who are acting in the course of a business within the meaning of the German Commercial Code, public law entities or federal special funds and whose principle place of business is situated in the European Union all disputes arising directly or indirectly out of these Terms shall be resolved before the courts at our principle place of business. We reserve the right to sue the Purchaser at the place of performance or before the courts of local jurisdiction situated at the Purchaser’s place of business or in accordance with any overriding individual agreement. For Purchasers whose principle place of business is situated outside the European Union all disputes arising out of these terms and conditions shall be finally settled in accordance with the Rules of the German Institution of Arbitration e.V. (DIS) without recourse to the ordinary courts of law. The place of arbitration shall be Frankfurt am Main, Germany. The arbitration shall be held in the English language.
II. Terms of licence for the provision of Software
§ 1 Area of application of the software licence, Documentation
(1) The following licence terms and conditions apply to the provision of standard software, which we supply to the Purchaser either singularly or in conjunction the requisite hardware (hereinafter referred to as “Software”). They do not apply to the supply of hardware.
(2) Firmware is not “Software” in the sense of this software licence.
(3) This software licence applies in addition to any other agreement which may have been executed by the parties.
(4) Software services are not included in this software licence. A separate agreement is required for the provision of such services.
(5) Our delivery obligation does not include the supply of documentation, except where expressly agreed upon in text form. Where such an agreement has been executed, the term “Software” shall in the following also include documentation.
§ 3 Rights of use
(1) We grant the Purchaser a simple perpetual (non-exclusive) right to use the Software internally. If the Software is purchased for use in conjunction with specific hardware, the following applies: The Purchaser may only use the Software in connection with the hardware referred to in the contract documents (e.g. a software product certificate). Where there is no reference to hardware, use of the Software is limited to the hardware supplied with it. Use of the Software in connection with other hardware is only permitted where agreed separately and in consideration for a reasonable additional remuneration. Temporary use in connection with other hardware (a substitute device) is permitted, insofar as this is necessary due to the occurrence of an error in the approved hardware and only, until this error has been remedied.
(2) Where a right to use the Software on more than one device has been agreed, such authorised use applies in principle in the alternative, i.e. the Purchaser may use the Software concurrently on only one of these devices (single licence). If there are several workstations to one device at which the Software can be used independently, the single licence extends to only one workstation. If a multi-user licence has been agreed, the provisions under clause 3 (I) apply.
(3) The Software is solely provided in machine-readable form (object code). There is no claim to a surrender of the source code.
(4) The Purchaser may only use the Software for the purposes intended by the contract and for internal use. Commercial leasing is prohibited.
(5) Reproduction of the Software is only permitted to the extent necessary for contractual use. The Purchaser may make backup copies in accordance with the generally accepted rules of technology to the extent necessary. Backup copies stored on removable media must be marked as such and must carry the copyright notice of the original media.
(6) The Purchaser is only authorised to change, enhance or otherwise adapt the Software pursuant to para. 69 c) No. 1 of the German Copyright Act (UrhG) to the extent that this is mandatory by law or stated explicitly in the contract regarding the use of the Software.
(7) The Purchaser is eligible to decompile the Software only within the limits of para. 69 e) of the German copyright law and only in order to establish interoperability with other hardware and software provided that we have failed to provide requisite data and/or information requested by the Purchaser in writing within a reasonable deadline.
(8) Where we provide the Purchaser within the scope of repair and maintenance works (the latter only on the basis of a separate agreement) with software enhancements (e.g. patches) or a new version of the Software (e.g. update, upgrade), which replace the former Software version (“Outdated Software”), they shall be governed by the terms and conditions agreed upon in this contract. Where we provide a new version of the Software, the Purchaser’s entitlement to use the Outdated Software under this contract shall cease as soon as he productively uses the new Software, even if we do not explicitly demand its return.
(9) Copying or adapting the user documentation is - subject to the foregoing – prohibited.
(10) We grant the Purchaser a revocable right to assign the rights of use granted hereunder to third parties, provided good cause can be shown. However, the Purchaser, who was not supplied with the Software for commercial resale, may only transfer the Software to third parties together with the device with which he purchased the Software from us. Where user rights are transferred to third parties, the Purchaser must ensure that no further rights of use to the Software are granted to the third party other than those which have been granted to the Purchaser. Furthermore the Purchaser must impose on third parties no lesser obligations regarding the Software than those existing under this contract. In such circumstances the Purchaser may not retain any copies of the Software. The Purchaser is not eligible to grant sub-licences. Where the Purchaser provides the Software to a third party, the Purchaser is responsible for complying with any export requirements and shall accordingly release us from all obligations.
(12) Use of the Software on several devices or at several workstations at the same time as well as using the Software in networks requires a separate agreement in writing. Where such an agreement exists (hereinafter referred to as Multi-user Licence) the following provisions shall apply in addition and override the aforesaid: i) The Purchaser may only assign Multi-user Licences to a third party, if the licence is assigned in whole and in conjunction with all devices on which the Software may be used and ii) The Purchaser shall observe the instructions on reproduction which were provided by us with the Multi-user Licence. The Purchaser must keep a record of all copies and provide evidence to us of such copies at any time on request.
§ 4 Further duties of the Purchaser, liability
(1) The Purchaser shall make appropriate arrangements in case the Software we provide does not work properly in part or at all. He will thoroughly check his system environment as to its compatibility with the Software’s system requirements, before putting it into operation. He will furthermore secure his data in accordance with the state of the art and sensitivity of the data, however, not less than once daily. He shall ensure that current data held in databases in machinereadable form are reproducible at reasonable expense. The Purchaser shall take appropriate measures in order to protect the Software from unauthorised third party access. The Purchaser is obliged to carry out performance tests immediately before and after installation and to inform us about the results.
(2) The Purchaser is obliged to immediately inspect our deliveries and to give notice of any errors in writing by describing precisely what kind of errors occurred (para. 377 German Commercial Code [HGB]). Furthermore he must convey to us any automatically generated diagnostic data where applicable and reasonable.
(3) Error rectification is subject to the errors being reproducible and detectable. The complaint must contain information on what kind of error occurred, the Software module in which the error occurred as well as the kind of work that was performed when the error occurred.
§ 5 Material defects, defects in title
(1) We provide the Purchaser with supplies and services which are free of material defects and defects in title. Errors which only result in an insignificant reduction of the availability of the supplies and services will not be considered. Regarding the supply of Software, functional impairments, which result from the hardware and software environment operated by the Purchaser, operating errors, defective external data, disruption of computer networks or other reasons within the Purchaser’s area of responsibility, shall not be considered errors.
(2) We are not responsible for Software which has been changed by the Purchaser, unless the Purchaser evidences that the change was not the cause of the error reported.
(3) Where our supplies and services are defective and the Purchaser has submitted a complaint in writing pursuant to para. 377 German Commercial Code (HGB) in a timely manner, we will either deliver a replacement or rectify the error (Supplementary Performance). To this end we shall be granted a reasonable period of time to do so of not less than eight days. Supplementary Performance may be effected either through the provision of a new programm version or through our instructions on how to avoid the impacts of the error (workaround). The Purchaser must also accept a new programm version, where the modification expense for him is reasonable.
(4) Supplementary Performance in relation to defects in title is effected by us providing the Purchaser with a right of use of the Software which is legally unobjectionable. We can replace the Software affected with an equivalent Software which complies with the terms and conditions in the contract, if this is reasonable for the Purchaser:
(5) Where third parties assert industrial property rights against the Purchaser, he must inform us immediately in text form. We will at out discretion and upon consultation with the Purchaser defend or satisfy such claims. We will defend third parties’ claims at our own expense and indemnify the Purchaser against all costs and damages necessary and connected to the defence of the claims, provided they did not result from a breach of duty on the part of the Purchaser. A breach of duty in this context is in particular where the Purchaser acknowledges third parties’ claims without our written consent.
(6) Where the Supplementary Performance is not successful, the Purchaser may reduce the remuneration or withdraw from the contract. However, withdrawal is only permissible, if the Purchaser expressly notifies us of his intention to do so in writing in conjunction with a reasonable grace period.
§ 6 Damages and limitation
(1) The terms set out in section I §§ 9 and 10 shall apply accordingly.