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Licensing terms for UCware Software

agreed between UCware GmbH, Christian-Pommer-Straße 23, 38112 Braunschweig, Germany - "Vendor" - and you, the buyer - "Customer".
 
Subject of the Agreement

(1) The subject of this agreement is the permanent licensing of the software bought by Customer from Vendor („Licensed Software“) and the granting to Customerof the rights of use specified in Item 2.
The hardware and software environment within which Licensed Software is designed to operate is defined in the technical specification.

(2) Vendor shall either install the software at Customer‘s site or make it available to Customer on a suitable data storage medium (e.g. CD-ROM) or as a download. Where the software is made available as a download, Vendor shall provide the relevant access data to Customer.

(3) The characteristics and functionality of Licensed Software are ultimately determined in the order confirmation given by Vendor to Customer and in the relevant technical specifications (data sheet) where this exists for the relevant software. These details should be construed as technical specifications not as warranties. Warranties are granted only where they are expressly referred to as such.

(4) In addition to the licensing of the software, Vendor or a business partner shall, at Customer‘s request, perform installation and configuration services at Customer‘s site to permit proper commissioning of Licensed Software. The installation and configuration services do not form part of this software licence agreement and shall be performed for an additional charge.

(5) Customer also has the option of receiving software support for Licensed Software by purchasing UCware Software Certificates from Vendor. The following additional provisions shall apply to software support:

(a) Software support comprises making available software updates (updates, patches, releases) for Licensed Software including the granting of the rights of use specified in Item 2.

(b) Vendor shall continue to enhance Licensed Software in terms of quality and timeliness; adapt it to changed requirements; correct faults to maintain the quality level specified in the licensing terms; and make available to Customer the resulting new versions inasmuch as they are covered by the UCware Software Certificates.

(c) Updates shall be made available to Customer in electronic format only. This shall be either via e-mail or by making the update available for download from Vendor‘s website. Where Vendor makes updates available for download, he shall provide login details to Customer by e-mail. Installation shall be performed by Customer. At Customer‘s request, Vendor shall perform installation and configuration services at Customer‘s site to permit proper commissioning of the updates acquired. The installation and configuration services do not form part of these software licensing terms and shall be performed for an additional charge to be set by Vendor.

(d) Vendor shall determine at his discretion the time at which the updates are made available.

(e) Customer may purchase the UCware Software Certificate for software support within 12 weeks of the purchase of Licensed Software. After that time, Vendor reserves the right to refuse later purchase of such certificates.

Granting of rights

(1) Customer shall be granted a non-exclusive, permanent right of use to Licensed Software and, in the event of a purchase of UCware Software Certificates, to the appropriate program updates. Licensed Software may only be used concurrently by the number of terminals that correspond to the number of licences purchased by Customer. Permitted use comprises installation of Licensed Software, loading into the computer memory, and use by Customer as intended by the provisions of this agreement. The number of licences and the type and scope of use are specified in the order confirmation sent by Vendor to Customer. Under no circumstances shall Customer have the right to lease Licensed Software or to grant a sublicence in another way; to make it accessible or communicate it to the public through a wired or wireless connection; or to make it available to third parties either free of charge or for a charge, such as in the form of application service providing or as „software as a service“. This shall not affect the provisions of Subs. 6.

(2) Customer is entitled to create a backup copy where this is required to safeguard future use. Customer shall mark this backup copy with the clearly visible note „Backup copy“.

(3) Customer is entitled to decompile and duplicate Licensed Software insofar as this is necessary to establish interoperability between Licensed Software and other programs. This shall apply only in cases where Vendor has not made available to Customer at his request the information required for this within a reasonable period of time. In all other cases, Customer shall have the right to duplicate, edit and distribute Licensed Software only inasmuch as the conditions of Subs. 6 apply.

(4) Where Customer uses Licensed Software in a scope that exceeds the acquired rights of use either in qualitative terms (permitted type of use) or in quantitative terms (number of licences purchased), he shall purchase the rights of use required for permitted use without delay. Failure to do so shall result in Vendor asserting his rights.

Where Customer uses software support and extends his rights to Licensed Software in quantitative terms after the start of the agreement, he undertakes to pay an additional charge for software support that corresponds to the number of licences from the time of the extension for the remaining term of the agreement.

(5) Copyright notices, serial numbers or any other features that serve to identify the program must not be modified or removed from Licensed Software.

(6) Inasmuch as software that is governed by the GNU General Public License Version 2 („GPLv2“) forms part of this agreement, the following additional conditions shall apply:

a) Where the licence concerns software licensed under GPLv2, Vendor refers to the GPLv2 licence agreement at www.gnu.org/licenses/gpl-2.0.html

b) Customer must not remove any copyright notices referring to GPLv2.

c) At Customer‘s request, Vendor shall make available to him the source code of the software licensed under GPLv2.

d) Where software that was developed through modification of software licensed under GPLv2 forms part of this agreement, the relevant software files shall include a notice indicating the modification and its date.

e) The remaining restrictions in Item 2 Subs. 1 to 5 shall not apply to the software in this Subsection. Vendor advises that editing, distribution and duplication are permitted only in accordance with the terms set out in GPLv2.

3 Fee, payment and default

(1) The licence fee payable by Customer for the products and services used depends on the order placed by Customer with Vendor. Unless otherwise agreed, the amount invoiced reflects the prices as specified in Vendor‘s price list applicable at the time the agreement is made plus VAT.

(2) Payment is due when Licensed Software has been installed and configured at Customer‘s site or the data storage medium has been made available, or when Licensed Software has been made available for download and Customer notified of the login details. Payment must be made within 10 days of the invoice date.

The licence fee for software support is payable in advance for an entire licence year. Payment must also be made within 10 days of the invoice date.

(3) Where Customer falls behind with his payments, Vendor reserves the right to claim default interest in accordance with statutory provisions.

Warranty

(1) Vendor warrants that the goods are of the agreed quality and that Customer can make use of Licensed Software without infringement of any third-party rights. The warranty for defects in material does not apply to defects resulting from use of Licensed Software in a hardware and software environment that does not meet the requirements specified by Vendor in the order confirmation sent to Customer. Neither shall Customer be entitled to make warranty claims for damages resulting from improper installation of Licensed Software by Customer.

(2) Where Customer is a commercial enterprise, he shall inspect Licensed Software for obvious defects immediately after receipt and notify Vendor without delay of any such defects. The warranty for such defects shall otherwise be excluded. The same applies where such defects become apparent later. The provisions of Section 377 of the German Commercial Code HGB shall apply.

The burden of proof for all warranty claims conditions is on Customer, particularly as regards the defect itself, the time of discovery of the defect, and the timeliness of notification of the defect.

Where the duties of inspection and notification of defects are not observed, Licensed Software shall be considered as conforming to the agreement with respect to the defect. In such a case, no warranty claims can be made.

(3) Where Customer is a commercial enterprise, Vendor shall initially be entitled to remedy performance in the event of a defect in material, i.e. Vendor may choose between repair of the defect and replacement of the goods. Where the goods are replaced, Customer may receive a different software version, provided this does not cause unreasonable inconvenience.

(4) Vendor is entitled to fulfil the warranty on Customer‘s premises. Vendor may fulfil his duties of repair by offering Customer telephone support for solving problems arising from defects. Vendor shall also be entitled to repair defects by way of remote access. Customer shall have to provide the technical framework to allow this at his own expense.

(5) This does not affect Customer‘s right to either claim a price reduction or revoke the contract altogether in the event that repair or replacement fail twice. There is no right of revocation for insignificant defects. Where Customer claims damages or compensation for futile expenses, Vendor shall be liable in accordance with the provisions of Item 5.

(6) Except for claims for damages under Item 5 Subs. 1 of this agreement, all warranty claims for defects in material must be made within one year. Where Licensed Software is installed by Vendor, the limitation period shall start with successful installation and configuration of the software by Vendor at Customer‘s site. Where Licensed Software is made available as a download, the limitation period shall start with communication and transmission of the login details. Where Licensed Software is handed over on a data storage medium, the limitation period shall start with the handover of this medium.

Liability

(1) Vendor has unlimited liability

  • in cases of intent or gross negligence;
  • for injury to life, body or health;
  • as set out in the provisions of the German Product Liability Law; and
  • within the scope of a warranty made by Vendor.

(2) In the case of a breach in minor negligence of a contractual term that does not go to the root of the contract („Kardinalpflicht“), Vendor‘s liability for all claims is limited in amount to the net order value upon conclusion of the agreement.

(3) Vendor shall have no further liability regardless of the legal nature of the claim brought. In particular, Vendor shall accept no responsibility for damage to other property belonging to the Customer that is caused by a defect in Licensed Software. This shall not apply to liability under the provisions of Subs. 1.

(4) The above limitation of liability shall also apply to the personal liability of Vendor‘s employees, representatives and bodies.

6 Safety precautions, software audits

(1) Customer undertakes to take suitable measures to protect Licensed Software and, where applicable, the login details for online access from unauthorised access by third parties. In particular, all copies of Licensed Software and the login details shall be kept in a safe place. Moreover, Customer undertakes to back up data regularly. This data back-up duty applies particularly prior to the installation of updates. Prior to installation of an update, Customer undertakes to read the installation notes, to exclude operating errors.

(2) At Vendor‘s request, Customer shall enable him to inspect proper use of Licensed Software, in particular whether its use by Customer is within the qualitative and quantitative framework licensed. To this end, Customer undertakes to provide to Vendor information and access to the relevant documents and papers, and to enable inspection of the hardware and software environment used. Vendor is entitled to perform, or have third parties who are bound by a confidentiality agreement perform, the inspection on Customer‘s premises during his normal business hours. Vendor shall take care to ensure that his work on site disrupt Customer‘s business operations as little as possible.

Confidentiality

(1) Confidential information refers to all information and documents belonging to the respective other party that are marked as confidential or considered as confidential in the circumstances, in particular information about business processes, relationships and expertise.

(2) The parties agree not to disclose confidential information.

(3) This obligation does not extend to confidential information that

a) can be shown to have already been known to the receiving party prior to the conclusion of this agreement, or to have become known after that time through a third party without any infringement of any nondisclosure agreement, legal regulations or official directives;

b) was in the public domain at the conclusion of this agreement or is made public after that time provided this does not involve a breach of this agreement;

c) must be disclosed because of statutory obligations or by order of a court or public authority. Insofar as this is permitted and possible, the receiving party who is required to disclose the information undertakes to notify the other party in advance, to allow the other party to take steps against such disclosure.

(4) The parties shall grant access to confidential information only to consultants who are bound by professional secrecy or on whom obligations corresponding to the non-disclosure obligations in this agreement have first been imposed. Furthermore, the parties shall disclose such confidential information only to employees who need to know it for the performance of this agreement, and bind these employees to confidentiality for a period of time after leaving the company to the extent that this is permitted under employment law.

Transfer of claims

Customer shall transfer claims against Vendor to third parties only following prior written consent by Vendor.

9 Customer's right of set-off and lien

Customer shall exercise set-off rights or liens only with unchallenged or legally established claims. The ban on the exercise of set-off rights or liens excludes counter-claims by Customer resulting from defective and/or incomplete performance of the respective contractual obligations by Vendor.

10 Changes to the agreement

(1) These software licensing terms are subject to change, provided changes become necessary in order to adapt them to developments that were not foreseeable at the signing of the agreement, and where failure to take into account such developments would create a significant imbalance in the agreement. This right of change shall not affect the material provisions of the agreement, in particular those concerning the term, type and scope of the services agreed or the provisions on termination of the agreement.

(2) Moreover, changes to these software licensing terms may also be made where they are required to resolve difficulties in fulfilling the agreement resulting from loopholes that have arisen after the signing of the agreement. This may be the case, for instance, where changes in jurisdiction or legislation cause one or more provisions in these software licensing terms to become invalid.

(3) Customer shall be notified of planned changes in text form no later than six weeks before they become effective. At the time the changes become effective, Customer shall have a special right of termination. Where Customer does not give notice of termination within six weeks following receipt of the change notification, the changes shall become part of the agreement at the time they become effective. Customer shall be expressly advised of this consequence and of the changes concerned in the change notification.

11 Place of jurisdiction and choice of law

(1) All legal relations between the parties arising from and in relation with this agreement shall be governed by the law of the Federal Republic of Germany, excluding the laws on the international purchase of movable goods and international private law.

(2) Where Customer is a merchant, a legal person under public law, or a public special fund, the exclusive place of jurisdiction for all disputes arising from or in relation with this agreement is Braunschweig. This does not affect the right to assert legal claims against Customer at his general place of jurisdiction.

12 Severability clause

Should any of the provisions in this agreement be invalid, this shall not affect the validity of the remaining provisions. The parties shall strive to replace the invalid provision with a valid provision that most closely corresponds in economic terms to the invalid provision. Otherwise the invalid provision shall be replaced with the corresponding statutory provisions.

13 General terms and conditions

In addition, Vendor‘s general terms and conditions shall apply. These can be accessed on his website at https://www.ucware.com/en/general-terms-and-conditions/ and can also be made available on request.

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