General terms and conditions
General terms and conditions of S|R Software, Schellhaas & Rauh GbR
§ 1 General scope of application
(1) The subject matter of these General Terms and Conditions and Licensing Terms (herein-after referred to as “General Licensing Terms”) of Schellhaas & Rauh GbR (hereinafter re-ferred to as “S|R”) is the right to use S|R computer software, the user manual and other asso-ciated written material, hereinafter collectively referred to as “Basic Software”. In addition, these General Licensing Term stipulate regulations regarding any “additional services” made available to the user of the basic software free of charge and voluntarily and without estab-lishing a legal right for the customer for the duration of the licence period, unless separate terms and conditions of use were agreed upon for these additional services in each case. Any “expansions” to the basic software to incorporate and optimise specific service tools shall be made available by S|R subject to a charge. These, too, are the subject matter of these General Licensing Terms and shall apply to the contract between the parties unless separate terms and conditions of use are agreed upon for them in each case.
(2) Unless individual components are referred to, the deliverables specified in (1), such as basic software, additional services and expansions, come under the collective term “S|R Programmes”.
(3) S|R draws attention to the fact that, by the current state-of-the-art, it is not possible to create computer software such that it runs flawlessly in all applications and combinations. Therefore, the subject matter of this contract is solely a programme which can generally be used for the purpose of this programme description and the documentation. S|R points out that an internet connection is indispensable for proper use of the basic software along with the associated additional services and expansions.
(4) S|R distributes the S|R programmes through software retailers as well as through direct sales. All claims arising from this contract must always be asserted against the respective re-seller as contact person. Obligations under a contract must be complied with vis-à-vis the re-spective other contracting partner.
(5) By incorporating these General Licensing Terms, S|R expressly and unequivocally clari-fies that they have exclusive legal effect with respect to the existing contractual relationship. General terms and conditions of Customer, even those which regulate subject matters not mentioned in these GTC, shall not be recognised by S|R and S|R hereby expressly declares them to be non-binding unless S|R has agreed to their validity expressly and in writing. Where rules concerning subject matters not mentioned in the following GTC are specified in Cus-tomer’s general terms and conditions, only the pertinent dispositive law is applied and under no circumstances a Customer’s term which deviates from it. These GTC shall also apply if S|R executes delivery to the Customer without reservations, aware that Customer’s terms and conditions are contradictory to or deviate from these GTC.
(6) In addition, these Licensing Terms as well as the range of products and services itself, are aimed exclusively at commercial customers, i.e. entrepreneurs. By entrepreneur is meant any natural or legal person, or a partnership having legal capacity which acts in the exercise of its commercial or independent professional activity when concluding a legal transaction (§ 14 BGB [Civil Code]). Hence, the legal provisions on business transactions between retailers and consumers shall not apply, without exception.
§ 2 Grant of license
(1) If you have agreed to these General Licensing Terms, have verified to S|R by registering that you have acquired the licence and have paid the contractually agreed licence fee to your contracting partner, S|R shall grant you the non-exclusive and non-transferable (with the ex-ception of the following provisions) license to install and use the basic software on your compatible computer, where the maximum number of computers comprised in the scope of licensing must not be exceeded. This maximum number of computers is specified when the basic software is purchased. During the evaluation period (as defined below), the basic soft-ware may be installed and used by one user and on one computer only.
(2) Prior registration as well as the complete payment of the contractually agreed licence fee to your contracting partner shall be required to exercise this right of use. Registration takes place once prior to first use and is subsequently stored by S|R as proof of personal legitimisa-tion. Thus, the above transfer of the rights of use to you shall take place subject to the condi-tion precedent that you have the licence acquisition registered with S|R and have paid the agreed licence fee to your contracting partner. The registration card to be filled in shall be presented to you along with these General Licensing Terms of S|R before the contract is con-cluded and confirmed by you by the separately signed acknowledgement of receipt on the registration card. S|R shall provide you with a form for this purpose which must be signed and returned to S|R either by mail or by fax. Contact information shall be stored by S|R for in-ternal purposes and shall not be disclosed to third parties. You accept that, during the 30-day period between installation and the successful conclusion of the registration process, the software is initially merely a test version as regulated in § 7 of this contract (hereinafter re-ferred to as “Evaluation Period”). S|R shall be entitled to refrain from upgrading the test ver-sion to a contractual version of the software and/or issuing an activation code if you cannot prove, despite a completed registration, that a payment of the licence fee to your contracting partner has been made. In this case, S|R shall be entitled to block your access to the S|R pro-grammes in question.
(3) You shall obtain the basic software provided to you in accordance with the provisions of these General Licensing Terms, to be used indefinitely. At the time the basic software is trans-ferred, it is equipped with an update for the current “subscription period”. A subscription pe-riod begins on 1 November of a calendar year and ends on 31 October of the following year, respectively. The Customer is granted the right to use this update for the current subscription period. The right to use the update ends upon the end of the subscription period.
(4) In addition, S|R may choose to make additional services available free of charge, such as for example specific functions such as the service tool for connection settings or interfaces. Such additional services can no longer be used once a new version of the software has been published. All in all, the Customer has no legal right to have such free additional services made available to him or maintained.
S|R expressly points out that certain functions or interfaces will be available temporarily on-ly and are not included in the support services provided by S|R Support. S|R shall not be liable for deliverables provided by third parties commissioned by the Customer for the purpose of providing and using these additional services. S|R cannot be held liable for transmission er-rors or for errors or for consequential damages which result from using the additional ser-vices, be it during or after the expiration of the transfer to the Customer.
(6) S|R cannot be held liable for the functionality of expansions and all associated technical capabilities which refer to the application of S|R programmes indirectly only.
(7) Apart from additional services provided by S|R, selective software expansions of the basic software are possible, for example the CheckIn terminal. These additional programme functions shall be made available to you by S|R subject to a charge only and are encompassed by these licensing terms, unless terms and conditions to the contrary are agreed. These ex-pansions shall be invoiced once a year based on an activation fee and an annual royalty. S|R reserves the right to introduce additional licensing terms for these expansions which shall have to be confirmed separately by you.
(8) As customer, you shall be granted a limited right of use in additional services and expan-sions. In the absence of an agreement to the contrary between the parties, this right of use is also limited in time to the current subscription period at the time the corresponding order was placed. The right to use these additional services and expansions thus also ends upon the end of this subscription period.
(9) You shall be entitled to install S|R programmes on a file server, for use in your intranet for example, and to download and install it from there on the maximum number of computers within this network as specified in the license. Any other network use is inadmissible; this in-cludes in particular the direct use or application of S|R programmes via commands, data or instructions from or to a computer which is not part of your internal network, or using S|R programmes for internet or web hosting services as well as the use of these programmes by a user who does not have a valid license by S|R and is thus not entitled to use S|R programmes.
(10) However, the number of users accessing the S|R programme via a network or terminal server must not exceed the maximum number of users included in the scope of licensing. S|R shall not issue any assurances or guarantees regarding the performance of the S|R pro-gramme in a terminal server environment.
§ 3 Property rights
This contract merely grants you the right to use S|R programmes as intended. S|R shall retain the copyright and all associated rights in the S|R programmes. These rights in the pro-grammes notwithstanding, however, all documents, files, style sheets, generated programme code (also including the unrestricted source code) and schemata you set up or create using S|R programmes shall be your property, in accordance with the associated documentation and the provisions of this licence agreement.
§ 4 Reproduction rights, adaptation rights
(1) You are permitted to reproduce S|R programmes to the extent that the respective repro-duction is necessary for use. Necessary reproductions include the installation of the pro-grammes and loading them into your computer’s working memory.
(2) In addition, you are permitted to make one copy for backup purposes. However, only one backup copy may be made and stored in each case. This backup copy should be labelled as a copy of the basic software left to the Customer. (3) You are not permitted to make any other copies, including outputting the programme code on a printer or photocopying the manual.
(4) All further adaptation rights which go beyond the scope of the designated adaptation of the S|R programmes and the purposes intended by them are excluded.
§ 5 Multiple use and network application
(1) You may use the S|R programmes within the framework of the license granted to you on any hardware available to you. If, however, you change your hardware, you must delete the S|R programmes from the mass memory of the hardware used thus far. Simultaneously stor-ing, holding or using the programmes on more than one hardware component is not permit-ted unless expressly otherwise agreed by contract.
(2) Using the transferred S|R programmes within a network or another multi-station com-puter system is not permitted if this creates the possibility of simultaneous, multiple use of S|R programmes unless a licence has been granted to that effect. If you would like to use S|R programmes within a network or other multi-station computer systems, you shall have to prevent simultaneous multiple use by means of access protection mechanisms or set up a special network fee which is determined by the number of users connected to the computer system.
(3) S|R shall inform you promptly of the network fee to be paid in a given case as soon as you have announced the planned network usage including the number of connected users to S|R in writing. Please see the user manual for the address information of S|R. Use in such a net-work or multi-station computer system shall not be permitted until the network fee has been paid in full.
(4) If, based on your conduct or the actual circumstances, there is reasonable cause to sus-pect multiple uses as described above, you are obligated to provide S|R with comprehensive information. Where adequate proof of unauthorised multiple uses is found, you shall be liable for compensation to the full amount specified by law.
§ 6 Decompiling and programme modifications
(1) The Customer may not make any changes to S|R programmes unless they are required for use as intended. Any modification or alteration is permitted if it is necessary in order to correct a defect and if the respective sales partner has fallen behind in correcting the defect, refuses to correct the defect without justification or is unable to promptly correct the defect for other reasons ascribed to his area of responsibility.
(2) The Customer may not engage third parties to carry out measures according to par. 1 who are competitors of the respective sales partner unless he proves that the risk of disclos-ing the respective sales partner’s important trade and business secrets (in particular, pro-gramme functions and design) is ruled out.
(3) Decompiling the programme is permitted only if the conditions and prerequisites speci-fied in § 69 e par. 1 UrhG [Copyright Act] are satisfied. The information obtained in this way must not be used or passed on contrary to the stipulations of § 69 e par. 2 UrhG.
(4) You may not remove or modify copyright mentions, serial numbers and other features used to identify software in any event.
§ 7 Activation codes, upgrades and updates
You will be issued an evaluation activation code before you buy S|R programmes or receive them in the course of your registration for the thirty (30) day evaluation period. If you sub-sequently decide to buy the basic software, additional services or expansions from S|R or an authorised distributor, you will receive an unlimited activation code subject to the condition that the contractually agreed licence fee has been completely paid to your contracting part-ner. This activation code allows you to activate the basic software after the evaluation period. You are not permitted to grant any licenses for activation codes or reproduce or distribute activation codes without express written permission by S|R. If the basic software for which you have acquired a licence is an upgrade or an update, said upgrade or update shall com-pletely or partially replace the earlier version of the licensed basic software, depending on the scope of the upgrade or update. The acquisition of the upgrade or update and the associ-ated activation code does not constitute the granting of a second licence for the basic soft-ware and you are not permitted to use the upgrade or update in addition to the basic software replaced by the upgrade or update. You declare that, by using an upgrade or an update, your right to use an earlier version of the basic software (or part of the software) expires.
§ 8 Warranty
Claims for basic software defects must be asserted against the respective retailer who sold you the basic software.
(1) Any defects of the basic software delivered including the manuals and other documents shall be remedied within a warranty period of twelve months from the date of delivery after having been informed accordingly by the Customer. The distributor or – if the software was purchased directly from the manufacturer – shall always be entitled to exercise his right to choose subsequent improvement free of charge or substitute delivery to correct the defect.
(2) If the defect cannot be remedied within a reasonable period of time or if subsequent im-provement or substitute delivery is to be considered failed for other reasons you, as Custom-er, can demand payment reduction (decrease) or rescission of the contract (withdrawal) at your choice. Failure of subsequent improvement or substitute delivery cannot be assumed until the respective seller has been given sufficient opportunity for subsequent improvement or substitute delivery, if it is impossible, if it is refused by the seller or unduly delayed, if there is reasonable cause to suspect that success is unlikely, or if subsequent improvement or sub-stitute delivery are unacceptable for other reasons.
(3) The seller reserves the right to rectify the asserted defect twice by way of supplementary performance. Only if both attempts at removing the defect are unsuccessful will it be possi-ble to assert other warranty rights (compensation, rescission) but only to the extent stated here.
(4) Internet connection is required to correct a defect. It is necessary to ensure that the inter-net connection stays active and stable while the defect is being corrected, be it by remote maintenance or in direct customer contact.
(5) The above statements on warranty rights shall apply accordingly with respect to addi-tional tools which are subject to a charge, subject to any provisions to the contrary concern-ing these additional services.
(6) Any warranty for free additional services is excluded in principle and without exception.
§ 9 Liability and rights of third parties
(1) Unless otherwise stipulated in the following provisions, any further claims on your part – on whatever legal grounds – are excluded. In particular, S|R shall not be liable for any damag-es for lost profits claimed by you or any other financial losses. This liability exclusion also applies in particular to claims on the grounds of culpa in contrahendo, breach of secondary obligations and manufacturer’s liability pursuant to § 823 BGB. This exclusion of liability shall not apply if the breach of duty is based on intent or gross negligence, unless the breach of duty is based on the breach of a cardinal duty, cardinal duties being duties whose fulfil-ment is a necessary condition for proper performance of the contract and compliance with which the contracting partner regularly relies, and may rely on.
(2) If S|R negligently violates an essential contractual obligation, S|R’s liability to pay com-pensation for damages is limited to the compensation amount paid by the product liability insurance of S|R as well as to damages which were foreseeable at the time the contract was signed or which is outside of the scope of software defects which cannot be ruled out accord-ing to the state of the art. The above exclusions of liability and limitations shall not apply to claims pursuant to the Product Liability Act or due to initial inability or due to impossibility for which we are responsible, as well as to injury to life, body or health. To the extent that lia-bility is excluded or limited, this shall also apply to the personal liability of our staff, employ-ees, representatives and agents.
(3) The calculation of the ski binding release value is not a cardinal duty so that S|R cannot be held liable for a potential faulty calculation. The ski binding release value is calculated on the basis of the prespecified customer data and must always be checked by the person who ad-justs the setting of the bindings based on current regulations. Any liability of S|R or of the seller arising from damages or resulting consequential damages which occur due to an incor-rect ski binding release value is therefore excluded.
(4) S|R shall indemnify and hold you harmless against all claims, litigations or lawsuits, or settle all claims, litigations or lawsuits filed against you by third parties by stating that the contents of the software violates a copyright or an intellectual or other property right pro-tected by the law of the Federal Republic of Germany (referred to collectively as “Claims”). However, this will only take place – unless otherwise expressly stipulated – if and when the claim concerned is a direct result of using the software and subject to the limitations speci-fied in section 5 of this contract. You should inform S|R of any claim within ten (10) business days of first being notified of said claim. In addition, you shall have to cooperate with S|R to a reasonable extent in the defence against such claims and assist S|R in the process without be-ing able to claim reimbursement for your assistance. Only S|R shall have the right to make decisions with respect to such claims (this also includes, but is not limited to, choosing the le-gal advisers and the right to accept a settlement for you at the terms and conditions deemed appropriate by S|R). You may consult a legal adviser at your own expense and participate in the procedural or settlement conferences. In the above cases, S|R shall pay an amount not to exceed the purchase price of the software for damages, costs and attorney’s fees which you will be obligated to pay in connection with such claims (or which you will have to pay on the basis of a settlement) to the extent that these are not paid by an insurance or by a third party. If the software is or becomes the subject matter of claims filed due to a copyright infringe-ment or if using the software is prohibited, or if it is likely, in the opinion of S|R’s legal adviser, for such a circumstance to occur, S|R shall attempt to bring about a settlement by making every economically reasonable effort to modify the software or to acquire a licence allowing continued use of the software. If, in the view of the legal adviser of S|R, it is not possible to settle the imminent or already filed claim or the decree by which using the software was prohibited, by modifying the software appropriately or by acquiring a licence, S|R may ter-minate this licence agreement without any negative consequences for S|R and issue you a proportional refund for all fees already paid to S|R. WITH THE EXCEPTION OF THE ABOVE PROVISIONS, S|R SHALL NOT BE SUBJECT TO LIABILITY FOR CLAIMS IN CONNECTION WITH COPYRIGHT INFRINGEMENTS. This liability shall not apply to copyright infringe-ments attributable solely to elements introduced by the Customer or other actions.
§ 10 Obligation to inspect and give notice of defects
(1) As Customer, you are obligated to check the S|R programmes promptly for function and compatibility with your operating system. Obvious defects must be reported to the respec-tive retailer in writing within two weeks after delivery.
(2) S|R does not guarantee that S|R programmes meet the purchaser’s requirements or are compatible with other programmes or products chosen by him beyond the scope of the con-tractually agreed applications of the basic software.
(3) Any defects which are not obvious must be reported to the competent distributor or to the manufacturer directly if the software was purchased from S|R, within two weeks of no-ticing them.
(4) The software defects, in particular the symptoms observed, must be described as precise-ly as possible.
(5) If the obligation to inspect and give notice of defects is not respected, the basic software shall be deemed to be approved as regards the defect concerned pursuant to § 377 par. 2 HGB [Commercial Code].
§ 11 Written form
All agreements which contain a modification, amendment or concretisation of these Licens-ing Terms as well as special guarantees and arrangements shall require the mutual and ex-press agreement between the parties. A communication by e-mail or fax shall be sufficient in order to meet this requirement.
§ 12 Choice of law and proper venue
The parties agree that the law of the Federal Republic of Germany shall apply to all legal rela-tionships from this contractual relationship, to the exclusion of the UN Convention on Con-tracts for the International Sale of Goods.
§ 13 Place of jurisdiction
If you are a businessman within the meaning of the Code of Commercial Law, a legal entity under public law or a public sector fund, the respective registered office of S|R shall be the operative place of jurisdiction for all disputes arising within the scope of the execution of this contractual relationship and is deemed to be agreed upon in this respect.
§ 14 Severability clause
Should one of the provisions of this contract be or become invalid, such invalidity shall not affect the legal force of the remaining provisions. The contracting parties shall instead coop-erate in order to replace the invalid provision by a legal and valid provision which is capable of achieving the intended economic success of the invalid provision. Should this fail, the inva-lid provision shall be replaced by the legal regulation. This shall apply mutatis mutandis to filling gaps in the contract.