Terms of use

General Business Terms for the Delivery of Standard – Software

All software deliveries of softtools GmbH, Königswinter, Germany (hereinafter: “Licensor”) to consumers in the sense of § 13 BGB German Civil Code (hereinafter: “Licensee”) are subject to the following General Business Terms (hereinafter: “GBT”), unless explicitly agreed on otherwise between the Parties (hereinafter referred to: “Individual Agreement”):

1. Scope of Delivery

a. Licensor is obliged to deliver the machine-readable object code, but not the source code or other codes, if not expressly agreed upon otherwise in the Individual Agreement.

b. Licensor is entitled to take adequate technical measures for the prevention of any use of software contrary to these GBTs or the terms of any Individual Agreement (hardware lock, dongles, authorization codes etc.). The use of software with any succeeding or displacing designated system of Licensee shall not be unreasonably affected or impeded by such technical measures.

c. Licensor may deliver at Licensor’ option (i) on a data carrier storing the object-code or (ii) by dispatching such code via E-Mail or (iii) by referring the Licensee to the download option via internet, provided that the option chosen by Licensor is reasonably acceptable for Licensee. In case of delivery on a data carrier, Licensor retains title to the data carrier until the fulfilment of the payment claims by Licensee.

d. In case a license key, hardware lock, dongle or authorisation code is necessary for the installation and the use of software, Licensor shall deliver such license key, hardware lock, dongle or code. Such license key, hardware lock, dongle or code shall not lead to a restriction or limitation of the use of the software more then necessary for the realisation of, if any, use restrictions agreed upon in the Individual Agreement. For the delivery of such license key etc. the rule set forth in item c. of this Section shall apply.

e. Licensor shall deliver material accompanying the software like manuals, data sheets etc (hereinafter: “Documentation”) at Licensor’ option (i) in printed format, or (ii) as set forth in item c. of this Section. In the last case the Documentation shall be delivered in a printable format.

f. Before completing any delivery to Licensee, Licensor may modify or enhance the software, always provided however that at the moment of completion of the delivery the agreed specifications and functionality of Software continues to be met by the modified or enhanced software.

g. Licensor may make partial and advance deliveries, provided that such delivery is reasonably acceptable for Licensee.

2. Date of Delivery and Delay in Delivery

a. Delivery dates shall only be binding if they are expressly agreed upon as binding in writing. In the case the parties agreed on binding delivery dates, Licensor shall only be considered to be in delay of delivery under the following conditions: (i) delivery is due and (ii) Licensor fails to deliver within a reasonable extension period as granted by Licensee; and (iii) such delay has been caused by Licensor’ fault. This shall not shift the burden of proof as per governing law.

b. Compliance with binding delivery dates by Licensor requires that Licensee timely and fully comply with the terms of payment and all other obligations of Licensee. Should these obligations not be met on time by Licensee for any reason, the agreed delivery date shall be extended accordingly. All further rights and legal objections of Licensor are reserved.

c. Should the non-compliance with any agreed delivery date be attributable to force majeure, e.g. mobilisation, war, riot or similar events, e.g. strike or lock out, the agreed delivery date shall be extended by a period equal to the delay caused by such force majeure event.

In the case that slight negligence is causing the delay in delivery, Licensor’ liability shall be limited to typical damages and to an amount which, upon the date of conclusion of the respective contract, can reasonably be expected as a possible damage by Licensor. This sum shall not exceed a maximum of 5% of the license fee agreed for the relevant software. Licensee may rescind the contract pursuant to the applicable statutory law, provided Licensor is responsible for the delay in delivery. Upon request of Licensor Licensee shall inform Licensor within reasonable time, whether Licensee, as a result of such delay, rescinds the contract or insists on the delivery. The before mentioned limitation of liability shall not apply in case Licensor has caused delay with gross negligence or wilful misconduct.

3. License Grant to Software

a. Subject to Licensee’s full payment of all applicable license fees, Licensor grants to Licensee a transferable (however subject to the conditions of item b. below), nonexclusive perpetual license to use the software as follows:

  • to use the software for non commercial purposes on a number of designated systems for which Licensee has paid license fees;
  • to copy the software for archival or backup purposes only; provided that no other copies shall be made without Licensor's prior written consent; all titles, trademarks, and copyright and restricted rights notices shall be reproduced in all such copies; all archival and backup copies of the software shall be subject to the terms of these BTCs.

b. Licensee shall be entitled to transfer the software to third parties, whether against consideration or free of charge, provided that (i) Licensee has completely transferred the software, any copy made hereof and related Documentation to such third party, and (ii) such third party has agreed to procure from Licensor, if necessary, a new authorization code after compensating Licensor for all reasonable administrative costs incurred by Licensor for generating such code.

c. Licensee shall not cause, permit, or attempt the reverse engineering, disassembly or decompilation of the software, unless permitted otherwise by §§ 69 d and 69 e German Copyright Law (UrhG). In case any such action is permitted by German Copyright Law, Licensee shall first approach Licensor to request such action to be performed by Licensor against reasonable consideration.

d. Licensor shall retain all copyright and other proprietary rights in and to the software. Licensee does not acquire any rights, express or implied, in the software, other than those specified in this Section.

5. Prices, Terms of Payment

a. The agreed prices include VAT, but exclude any potential costs for delivery as per Sect. 1. c. and e. of these GBTs, unless agreed otherwise in the Individual Agreement.

b. Insofar as Licensor did not deliver against payment in advance or cash on delivery, a term of payment of 8 days from the date of the invoice applies.

c. Subject to the provisions in item d. below, all payments shall be made without deduction to the banking account identified by Licensor. Licensor accepts bills or cheques only if beforehand agreed hereupon and only on account of payment. Any discount or banking charges are for Licensee’s account.

d. Against Licensor’s ou­tstanding claims Licensee shall be entitled to set off only such claims that are undisputed or recognized by final judgement; Licensee may claim rights of retention only based on such claims.

e. The day of receipt of payment on Licensor’ Bank account shall be decisive for timely payment.

f. Interest due to payment delay shall amount to the rates permitted by governing law.

6. Warranty for Defects

a. Software is subject to a warranty provided by governing law, unless set forth otherwise hereinafter.

b. Licensee shall notify any defect in writing in which notice Licensee shall specify the defect in a comprehensible and detailed form and give all information necessary for a defect analysis. Licensee shall specifically name all operational steps leading to the defect, the symptoms and effects of the defect. Licensee’s failure to comply with the above obligation does not affect Licensee’s warranty rights.

c. To the extent necessary Licensee shall support Licensor in the correction of defects, specifically upon Licensor’s request send a data carrier with a copy of the defective software.

d. Licensee understands and accepts that – even when applying state of the art software development techniques – software cannot be delivered so that it operates free of defects in any and all application environments. Warranty claims of Licensee with regard to software shall be excluded if and to the extent the software defect is not reproducible or retraceable by machine created reports.

e. In case Licensor is in breach of the above warranty, Licensee may claim re-performance from Licensor within a reasonable period of time set by Licensee. Licensor re-performs by, at Licensor’s option,

  • either delivering a new or an enhanced version of the defective software, or
  • in case software is defective, delivering to Licensee patches or bypass-solution correcting the defect after proper installation by Licensee.

Licensor shall take the reasonable interests of Licensee in account when exercising the option given above. Only in case the re-performance fails or is commercially not feasible for Licensor, Licensee may, subject to all additional requirements of applicable law, claim reduction of the price, rescind from the agreement and/or claim compensation of damages within the limitations of Sect. 7 of these GBTs below. Licensee shall exercise any option which Licensee may have under governing law within 14 calendar days at the latest.

7. Limited Liability of Licensor

a. Licensor is fully liable for Licensee’s damage (i) caused by Licensor, its legal representatives or its servants by intend or wilful negligence, (ii) due to strict product liability law, (iii) concerning personal injuries caused by Licensor, its legal representatives or its servants.

b. Licensor shall not be liable for damages caused by slight negligence, unless caused by any breach of essential contractual obligations. The liability for the breach of essential contractual obligations shall be limited to typical and predictable damages.

c. In the case of loss of data or information Licensor is liable for the costs arising out of the recovery of such data or information. In case of slight negligence of Licensor this shall only apply if Licensee took adequate measures to ensure proper data back-up just before the event causing the loss of data occurred.

d. The provisions set forth in item a. through c. above shall apply as well in case of claims regarding reimbursement of expenses and any other liability claim of Licensee.

8. General Provisions

a. All legal relations between the parties and their conclusion shall be governed by and construed in accordance with the laws of Germany. The provisions of the United Nation Convention on the sale of Goods (CISG) are not applicable.

b. In the case a provision of this GBT is or becomes ineffective, the effectiveness of these GBT shall thereby not be affected.

Königswinter, Germany, 1. May 2009