Except as otherwise agreed, in any contractual relationship in which BW-TECH (herein “BW-TECH GmbH”) provides or supports BW-TECH Software to another company or public-law entity or special fund (herein: “Licensee”), only these GTC and the provisions of BW-TECH Software- and Support-Price List in the version valid at the time the contract is concluded (“Pricelist”) apply.
They apply to precontractual relations accordingly. The following terms and conditions of these GTC relative to “BW-TECH Software” apply to BW-TECH provided Third Party Software accordingly, except as otherwise stated in the Software Agreement or the Pricelist. Please refer to the original text of third-party licenses (see subdirectory “third_party_licenses”).
- 1.1 “Add-on” means any software developed by Licensee or by a third party on Licensee’s behalf communicating with the Software via BW-TECH APIs that adds or supplements new and independent functionality to BW-TECH Software, but does not constitute a Modification (as defined in section 1.8).
- 1.2 “API” means BW-TECH’s application programming interfaces, as well as other BW-TECH code that allow other software products to communicate with or call on BW-TECH Software provided under the Software Agreement.
- 1.3 “Affiliate” means any legal entity that is affiliated with another company within the meaning of the German Stock Corporation Act (AktG), section 15.
- 1.4 “Business Partner” means a legal entity that requires access to the BW-TECH Software in connection with Licensee’s internal business operations, such as customers, distributors and/or suppliers of Licensee.
- 1.5 “Confidential Information” means all information which BW-TECH or Licensee protect against unrestricted disclosure to others, or that are deemed confidential according to the circumstances of their disclosure or their content. In any case, the following information is considered to be Confidential Information of BW-TECH: the BW-TECH Software, programs, tools, data and other material, that BW-TECH provides to Licensee before or on the basis of the Software Agreement.
- 1.6 “Documentation” means BW-TECH’s documentation pertaining to BW-TECH Software which is delivered or made available to Licensee with the Software
- 1.7 “IP Rights” (“Intellectual Property Rights”) means without limitation any patents and other rights to inventions, copyrights, trademarks, trade names and service marks and any other intangible property rights and all related rights of use or commercialization.
- 1.8 “Modification” means any reworking of BW-TECH Software developed by Licensee or by a third party on Licensee’s behalf within the meaning of the German Copyright Act (UrhG) section 69c Nr.2, e. g. changes to the delivered source code or metadata
- 1.9 “BW-TECH Software” means (i) any and all standard software products (as well as relevant documentation) all as developed by or for BW-TECH or any of its affiliated companies; (ii) any new versions (especially without being limited to releases, updates, patches, corrections) thereof made available pursuant to the Soft-ware Agreement and (iii) any complete or partial copies of any of the foregoing.
- 1.10 “BW-TECH Support” means the support provided for BW-TECH Software under the applicable support or rental agreement.
- 1.11 “Software Agreement” means the agreements on the license and support of standard software that reference to these GTC, Pricelist and – where applicable – further schedules.
- 1.12 “Third Party Software” means (i) any and all standard software products (as well as relevant documentation) and content licensed to Licensee under the Software Agreement, all as developed for or by companies other than BW-TECH or its affiliated companies and that do not constitute BW-TECH Software (as defined in section 1.9); (ii) any new versions (especially without being limited to releases, updates, patches, corrections) thereof made available pursuant to the Software Agreement and (iii) any com-plete or partial copies of any of the foregoing.
- 1.13 “Working Days” means weekdays from Monday to Friday (9 a.m. to 5 p.m. CET) except statutory holidays in the German federal state of Baden-Württemberg and December 24 and 31.
2. DELIVERY, MATTER TO BE DELIVERED, LICENSE GRANT, IP RIGHTS.
- 2.1 Delivery, Matter to be Delivered. BW-TECH will deliver the BW-TECH Software in accordance with the product description in the Documentation and with the Pricelist. The product description in the documentation conclusively defines the functional qualities of the BW-TECH Software delivered by BW-TECH. BW-TECH does not owe any duty with regard to any further quality. In particular, Licensee can imply no such duty from any other published BW-TECH description or advertisement for the BW-TECH Software except to the extent BW-TECH has expressly confirmed that other quality in writing. Guarantees are effective only if expressly confirmed in writing by BW-TECH’s management. Unless otherwise agreed, Licensee will be provided with one (1) copy of the relevant version of the BW-TECH Software that current at the time of shipment, within one month after conclusion of the Software Agreement. BW-TECH will deliver, at its election, by supplying to Licensee the BW-TECH Software on disc or other data media to the agreed delivery address (Physical Shipment) or by making it available for download through the BW-TECH/epiKshare Download center (http://www.epikshare.com) (Electronic Delivery). For the purpose of ascertaining whether delivery is timely, delivery of a Physical Shipment is deemed effected at the time BW-TECH passes the discs or other data media to the forwarding agent, and an Electronic Delivery is deemed effected at the time BW-TECH makes the BW-TECH Software available for down-load and informs Licensee accordingly, and risk passes at the time of such physical shipment or electronic delivery.
- 2.2 BW-TECH’s Rights; Licensee’s Licensed Use. As between Licensee and BW-TECH, all rights in the BW-TECH Software – especially without being limited to all copyright and other IP Rights – shall be the sole and exclusive property of BW-TECH or their licensors, including without limitation BW-TECH Software created to address a requirement of or in collaboration with Licensee. Licensee’s only rights in respect of the BW-TECH Software are the following nonexclusive rights. Sentences 1 and 2 apply likewise to all other BW-TECH Software, goods, works and information provided to Licensee precontractually or in performance of contract, including without limitation those provided in performance of warranty or support.
- 2.2.1 Licensee may use the BW-TECH Software only to the extent contractually agreed. The license is limited to the BW-TECH Software specifically identified in the Software Agreement, even if it is also technically possible for Licensee to access other Software components. Where Licensee purchases the BW-TECH Software, its license is perpetual; where Licensee rents the BW-TECH Software, the license term is contractually agreed. Licensee’s right to develop and use Modifications and Licensee’s use of the BW-TECH Software to develop Add-Ons as well as the use of the BW-TECH Software together with Add-Ons is stipulated in section 2.3. Licensee enjoys only those rights in Third Party Software that are necessary to use it in association with the BW-TECH Software. In particular, these rights do not include the right to pass it on to others or to develop Modifications or Add-Ons.
- 2.2.2 Licensee may use the BW-TECH Software only to run Licensee’s and its Affiliates’ internal business operations. Licensee is granted the right to copy the BW-TECH Software only for the purposes of such licensed use. All other rights, notably the right to distribute the BW-TECH Software, including without limitation the rights of rental, translation, elaboration and arrangement, and the right to make the BW-TECH Software available to the public are retained exclusively by BW-TECH. Licensee may not use the BW-TECH Software to provide business process outsourcing or, service bureau applications other than to its Affiliates or use the BW-TECH Software to provide trainings to any person who is not Licensee’s employee or the employee of a Licensee Affiliate. The related terms and detail in the Pricelist also apply. Use of the BW-TECH Software may occur by way of an interface delivered with or as a part of the BW-TECH Software, a Licensee or third-party interface, or another intermediary system. Licensee must hold the required licenses as stated in the PRICELIST for any individuals that use the BW-TECH Software (directly or indirectly). Business Partners may use the BW-TECH Software only through screen access and solely in conjunction with Licensee’s use and may not use the BW-TECH Software to run any of Business Partners’ business operations. On test systems the sole purpose of Licensee’s use of the BW-TECH Software must be to ascertain the BW-TECH Software’s properties and assess its suitability for Licensee’s business. Notably, Licensee must not create Modifications or Add-Ons (section 2.3), decompile (section 2.2.5) the BW-TECH Software or use it or prepare to use it for live operation. Unless expressly provided otherwise in writing between the parties and in deviation of the preceding provisions of this section.
- 2.2.3 Licensee may not use the BW-TECH Software to run the internal business operations of a Licensee Affiliate with a BW-TECHarate agreement for BW-TECH Software licenses and/or support services with BW-TECH or an BW-TECH Affiliate. Such Licensee Affiliate shall not receive any support services under the Software Agreement. The aforementioned provisions apply even if such BW-TECHarate agreement has expired or will be terminated.
- 2.2.4 The Software may only be copied temporarily or permanently in whole or in part on information technology devices (e.g. hard disks or central processing units) which must be located at Licensee’s facilities and are in Licensee’s direct possession. Where BW-TECH has agreed in writing, the information technology devices may also be located in the facilities of a Licensee Affiliate and be in the Affiliate’s direct possession. Where Licensee wishes to outsource the BW-TECH Software, that is to say run the BW-TECH Software or have the BW-TECH Software run for running Licensee’s internal business operations on information technology devices that are located at the facilities and in direct possession of a third party, Licensee must first obtain the agreement of BW-TECH in writing, which agreement BW-TECH is ready to give provided that is proper business interests are upheld, notably that the third party respects the agreed conditions concerning the license for the BW-TECH Software.
- 2.2.5 Licensee is permitted to back up data in accordance with good information technology practice and for this purpose to create the necessary backup copies of the BW-TECH Software. Backup copies on transportable discs or other data media must be marked as backup copies and bear the same copyright and authorship notice as the original discs or other data media. Licensee must not change or remove BW-TECH’s copyright and authorship notices.
- 2.2.6 Prior to decompiling the BW-TECH Software, Licensee must give written notice requiring BW-TECH within a reasonable period of time to provide the information and documentation necessary to produce interoperability. Licensee is entitled to decompile the BW-TECH Software to the extent permitted in the German Copy-right and Related Intellectual Property Rights Act (UrhG) section 69e only after BW-TECH has failed to comply with such notice within the limited time period. Before involving a third party (e. g. pursuant to the UrhG section 69e 1) No.1 or (2) No.2), Licensee must obtain for BW-TECH’s direct benefit the third party’s written undertaking to comply with the provisions in this section 2.
- 2.2.7 If, for example by way of defect remedy or BW-TECH Support, Licensee receives new copies of the BW-TECH Software that replace previously provided BW-TECH Software, Licensee has only the right to use the last copy of the BW-TECH Software obtained. Licensee’s license to use with regard to the previous copy of the BW-TECH Software ends when Licensee implements the new BW-TECH Software on productive systems. Licensee is however permitted for a period of one months to use the new BW-TECH Software copy on a test system while also still using the previous BW-TECH Software copy live. Section 5 governs the replaced BW-TECH Software copy.
- 2.3 Modifications / Add-Ons
- 2.3.1 Except as otherwise agreed and except as expressly required by law or expressly permitted in this section 2.3, Licensee is not entitled to create, use, or make available to any third party any Modification of BW-TECH Software. Except as otherwise agreed and except as expressly required by law or expressly permitted in this section 2.3, Licensee is not entitled to use any software tool or API that is contained in BW-TECH Software or is otherwise obtained from BW-TECH to make any Add-On or to use any software tool or API so contained or obtained with any Add-On.
- 2.3.2. BW-TECH points out that even a minor Modification to BW-TECH Software may lead to possibly unpredictable and significant faults in the running of BW-TECH Software and other programs and in communications between BW-TECH Software and other programs. Faults may also arise because a Modification is not compatible with later versions of BW-TECH Software. Neither BW-TECH nor any Affiliate of BW-TECH is under any duty to eliminate any fault arising in connection with a Modification, and nor is either otherwise answerable in respect of any such fault. Notably, BW-TECH is entitled to change BW-TECH Software, APIs, or both, without care for the compatibility of any Modification that Licensee uses with any later version of BW-TECH Software. The foregoing provisions in this section 2.3.2 apply accordingly to the use of BW-TECH Software together with Add-Ons.
- 2.3.3. Provided that the provisions in this section 2.3.3 are fulfilled and Licensee gives the covenant required in section 2.3.5, sentence 1, BW-TECH grants to Licensee the right to make and use Modifications to BW-TECH Software that BW-TECH delivers to Licensee.
- (a) Modifications may only be made in relation to BW-TECH Software delivered in source code to Licensee by BW-TECH.
- (b) Before making or using Modifications, Licensee must comply with the registration procedure as currently set out by BW-TECH at http://www.bw-tech,de or www.epikshare.com.
- (c) Modifications must not enable the bypassing or circumventing of any of the restrictions set forth in the Software Agreement or in any other agreement between Licensee and BW-TECH.
- (d) Modifications must not provide Licensee with access to the BW-TECH Software to which Licensee is not licensed.
- (e) Modifications must not permit any mass data extraction from BW-TECH Software to any non BW-TECH software, including use, modification saving, or other processing of data in the non-BW-TECH software.
- (f) Modifications must not impair, degrade, or reduce the performance or security of BW-TECH Software.
- (g) Modifications must not render or provide any information concerning BW-TECH software license terms, BW-TECH Software, or any other information related to BW-TECH products.
- (h) Modifications must be used only together with BW-TECH Software and only in accordance with the license to use BW-TECH Software granted in section 2.2.
- 2.4 Passing BW-TECH Software on
- 2.4.1 Licensee may pass on to one third party all of the BW-TECH Software it has acquired by purchase (including any additional BW-TECH Software obtained by way of warranty or support) as one unit only, and provided that Licensee entirely ceases and desists from its own use. Any temporary passing on of the use of the BW-TECH Software in part or in whole or passing on of the use of the BW-TECH Software to multiple third parties constitutes a breach. The restrictions in sentences 1 and 2 in this section also apply to reorganizations and successors, e. g. in the meaning of the German Reorganization Act (Umwandlungsgesetz).
- 2.4.2 In every case, BW-TECH’s written consent is required to pass on the BW-TECH Software. BW-TECH will grant such consent provided Licensee produces the new user’s undertaking in writing to comply with the agreed conditions concerning the license for the BW-TECH Software for BW-TECH’s direct benefit and provided Licensee undertakes to BW-TECH in writing that it has passed all of the original BW-TECH Software on to the third party and deleted all copies that it made. BW-TECH reserves the right to decline such consent if the new user’s use of the BW-TECH Software prejudices BW-TECH’s rightful interests.
- 2.4.3 Licensee may not pass on to a third party any BW-TECH Software that Licensee licensed by any means other than under a purchase contract.
- 2.4.4 If Licensee is a leasing company and the contract specifies that the BW-TECH Software was licensed to be leased, BW-TECH will give its permission to lease and to change the lessee if the leasing company names the lessee in writing, and if, in the case of a change of lessee, the previous lessee and the new lessee submit undertakings to BW-TECH in accordance with section 2.4.2 and there is no just reason to withhold consent (for example, absence of permission from a third-party licensor). BW-TECH is entitled to supply the BW-TECH Software (notably BW-TECH Software provided by way of warranty or support) directly to the lessee. The leasing company is entitled to assign to its lessee rights arising out of warranty liability. If there is a change of lessee, BW-TECH reserves the right to charge the leasing company an upgrade fee of up to 50% of the support fee for the expired part of the term of the lease.
3. VERIFICATION / ADDITIONAL LICENSES.
- 3.1 Licensee must inform BW-TECH in advance about any use of the BW-TECH Software outside the contractually permitted use in writing. It requires its own contract with BW-TECH with regard to the additional license required (“Additional License”). The Additional License is subject to the provisions of the PRICELIST in force at the time of the execution of the Additional License.
- 3.2 BW-TECH shall be permitted to audit (at least once annually and in accordance with BW-TECH standard procedures, which may include onsite and/or remote audit) the usage of the BW-TECH Software. Licensee shall cooperate reasonably in the conduct of such audits. Reasonable costs of BW-TECH’s audit shall be paid by Licensee if the audit results indicate usage in breach of the Software Agreement.
- 3.3 In the event that an audit or other instance reveals that Licensee has used the BW-TECH Software in excess of the contractual agreements, BW-TECH and Licensee will execute an Additional License. Section 3.1 sentences 2 and 3 apply likewise. BW-TECH reserves all rights to claim damages.
4. PRICE / TAXES / PAYMENT / RETENTION OF RIGHTS.
- 4.1 Fees.
- 4.1.1 Licensee shall pay to BW-TECH license fees for the Software and fees for BW-TECH Support on the terms in Software Agreement. Fees for BW-TECH Software delivery include costs of delivery and packaging for physical shipment. In cases of electronic delivery, BW-TECH makes the BW-TECH Software available for download from a network at its own cost. Licensee is responsible for the cost of downloading the BW-TECH Software. No cash discount is granted.
- 4.1.2 BW-TECH may require full or part payment in advance if there is no prior business relationship with Licensee, if delivery is to be made outside Germany, if Licensee’s registered office is outside Germany or if there are any grounds to doubt that Licensee will render payment punctually.
- 4.1.3 Licensee may offset only claims or claim rights of retention that are uncontested or have been finally determined by the court. Subject to the provisions of the German Commercial Code (HGB), section 354a, Licensee cannot assign its claims to a third party.
- 4.1.4 BW-TECH retains all rights in and title to the BW-TECH Software, especially versions of the BW-TECH Software that have been provided under the support agreement, until full satisfaction of its claims under the Software Agreement. Licensee must immediately notify BW-TECH in writing if any third party gains access to the BW-TECH Software in which BW-TECH retains title or rights and must also inform the third party of BW-TECH’s rights.
- 4.1.5 Invoicing; Due Date
- (a) Advance payment via Bank Transfer/Wire or a Payment Service Provider (i.e. PayPal).
- (b) Payments are due 14 calendar days from the date of the invoice. Any fees not paid when due shall accrue interest at the applicable statutory interest rate.
- (c) Under Software purchase contracts, the invoice shall be presented after delivery of the Software.
- (d) Under BW-TECH Support contracts, the duty to pay shall begin with Effective Date of the BW-TECH Support contract. The fee will be billed quarterly in advance.
- (d) Payment terms for rental contracts shall be included in the relevant rental contract. Except as provided otherwise, the fee will be billed yearly in advance and the duty to pay shall start with the execution of the rental contract.
- 4.1.6 By giving Licensee a written two months’ notice effective from January 01 of the following calendar year, BW-TECH is entitled to amend the remuneration for support and / or rental at its discretion subject to the following guidelines:
- (a) The change applied to the fee must not be greater than the change in the index at (b) below (“discretionary applicable change”). For the first fee adjustment under the contract, the discretionary applicable change is the change from the index published at the date of the execution of the contract to the index that has most recently been published when the fee adjustment notice is given. If the fee has already been adjusted in the past, the discretionary applicable change is the change from the index that had been most recently published when the previous fee adjustment notice was given to the index that has most recently been published when the new fee adjustment notice is given.
- (b) The index used to determine the discretionary applicable change is the index of mean monthly salaries of fulltime employees in Germany in the information technology services sector. If publication of that index is discontinued, the applicable index for determination of the discretionary applicable change will be the index published by the Federal Statistics Office that most closely reflects changes in the mean monthly salaries of the sector named above.
- (c) The fee adjustment is deemed to be agreed by the parties unless Licensee, by giving notice within two weeks from receipt of the fee adjustment, terminates the support or rental contract with effect from the end of the calendar year (extraordinary termination right). BW-TECH will draw attention to this in the fee adjustment notice. The provisions in section 10.6, sentences 3 to 5 apply accordingly.
- 4.2 Taxes. All fees are subject to applicable statutory value-added tax (VAT) except where the transaction is exempt.
5. END OF LICENSE.
Upon any termination of the license hereunder (e. g. by rescission, end of agreed license term or termination), Licensee shall immediately cease use of all BW-TECH Software and Confidential Information. Within one (1) month after any termination of the license, Licensee shall irretrievably destroy or upon BW-TECH’s request deliver to BW-TECH all copies of the BW-TECH Software and Confidential Information in every form, except to the extent it is legally required to keep it for a longer period in which case such return or destruction shall occur at the end of such period. Licensee must certify to BW-TECH in writing that it and its Affiliates have satisfied the obligations under this section 5.
6. DUTY TO COLLABORATE, DUTY TO INSPECT AND GIVE NOTICE OF DEFECTS.
- 6.1 Licensee undertakes that it knows the essential functional characteristics of the BW-TECH Software and its technical requirements (e. g. with regard to the database, operating system, hardware and data media). Licensee bears the risk that the BW-TECH Software does not meet its wishes and requirements. In case of doubt Licensee should consult employees of BW-TECH or third-party experts before concluding any contract. Furthermore, BW-TECH supplies notes on the technical prerequisites for the BW-TECH Software and any changes thereto on its online information platform.
- 6.2 Licensee must provide the operating environment (herein: IT systems) necessary for the BW-TECH Software, in accordance with BW-TECH’s guidance where given. It is the responsibility of Licensee to secure proper operation of the IT systems by entering into maintenance contracts with third parties if necessary. In particular, Licensee must comply with the specifications in the Documentation and the notes on BW-TECH’s online information platform.
- 6.3 Free of charge, Licensee must provide all collaboration that BW-TECH requires in connection with performance of the contract, including, for example, human resources, workspace, IT systems, data, and telecommunications facilities. Customer must grant BW-TECH direct and remote access to the BW-TECH Software and the IT systems.
- 6.4 Licensee must nominate in writing a contact for BW-TECH, with an address and e mail address at which the contact can be reached. The contact must be in a position to make necessary decisions for Licensee or ensure that they are made without delay. Licensee’s contact must maintain effective cooperation with BW-TECH’s contact.
- 6.5 Before commencing live operation with the BW-TECH Software, Licensee must test it thoroughly for freedom from defects and for suitability in the situation.
- 6.6 Licensee must take appropriate precautions against the possibility that the BW-TECH Software or any part thereof does not function properly (e. g. by performing data backups, error diagnosis and regular results monitoring). Except where otherwise expressly indicated in writing in individual cases, BW-TECH employees are always entitled to act on the assumption that all data with which they come into contact is backed up.
- 6.7 Licensee must inspect all goods, works, and services delivered or provided by BW-TECH and give notice of all defects pursuant to the German Commercial Code (HGB), section 377. The notice must be in written form and contain a detailed description of the problem. Notice of a defect is effective only if given by the contact (section 6.4) or the certified BW-TECH Support Center.
- 6.8 Licensee bears all consequences and costs resulting from breach of its duties.
7. DEFECTS AS TO QUALITY, DEFECTS IN TITLE, OTHER FAULTS.
- 7.1. BW-TECH warrants the agreed qualities of the BW-TECH Software (section 2.1) in accordance with the law governing the sale of goods and warrants that the grant to Licensee of the agreed rights (section 2) does not infringe any third-party right.
- 7.2. To discharge its liability for shown quality defects, BW-TECH will remedy the defects either by providing to Licensee a new software version that is free of defects or, at its election, by eliminating the defects. BW-TECH may also eliminate a defect by indicating to Licensee a reasonable way to avoid the effect of the defect. To discharge its liability for shown defects in title, BW-TECH will remedy the defects either by procuring for Licensee the legaly incontestable right under license to use the delivered BW-TECH Software or, at BW-TECH’s election, providing equivalent replacement or altered BW-TECH Software. Licensee must accept a new software version that is functionally compliant unless it would be unreasonable to require Licensee to do so. Information concerning technical innovations can be obtained through RSS (Really Simple Syndication) feeds at http://notification.BW-TECHsoftware.com.
- 7.3. If Licensee sets a reasonable limited additional time period for BW-TECH to remedy the defect and BW-TECH finally fails to do so in that time, Licensee has the right to rescind the contract or reduce the remuneration. The requirements in sections 11.1 and 11.5 must be met with regard to fixing a reasonable limited additional time period. Subject to the exclusions and limitations in section 8. BW-TECH undertakes to compensate for loss or wasted anticipatory expenditure caused by a defect.
- 7.4. The time bar for claims under sections 7.1 to 7.3 comes into effect one year after delivery of the BW-TECH Software. This also applies to rights arising out of rescission or reduction of remuneration under section 7.3, sentence 1. The reduction in the time before the time bar comes into effect does not apply in cases of BW-TECH’s intent or gross negligence, of fraudulent concealment of a defect, of personal injury, or of defect in title to which the German Civil Code (BGB), section 438 (1) No.1 (a) applies.
- 7.5. The time bar for claims for defects in works or services to eliminate or avoid a defect provided in discharge of defect liability also comes into effect at the time specified in section 7.4. However, the time before the bar comes into effect is tolled while, with Licensee’s consent, BW-TECH is checking the existence of a defect or is remedying a defect, until BW-TECH informs Licensee of the results of its check, gives notice that the remedy is complete, or refuses to remedy the defect. The time bar comes into effect no earlier than three months after the end of the toll.
- 7.6. If BW-TECH provides defect identification or elimination works or services without being under obligation to do so, BW-TECH is entitled to remuneration under section 11.7. This applies in particular to any reported quality defect that is not reproducible or not imputable to BW-TECH or in cases where the BW-TECH Software is not used in compliance with its documentation. Without prejudice to the generality of the foregoing, BW-TECH is entitled to remuneration for additional work it does to eliminate any defect that arises out of Customer’s failure to properly discharge its duty to collaborate, inappropriate operation of the BW-TECH Software, or failure to take the BW-TECH services that BW-TECH recommends.
- 7.7 If a third party claims that the exercise of the license granted under the contract infringes its rights, Licensee must fully inform BW-TECH in writing without delay. If Licensee ceases to use the BW-TECH Software to mitigate loss or for other just reason, Licensee must notify the third party that such cessation does not imply any recognition of the claimed infringement. Licensee will conduct the dispute with the third party both in court and out of court only in consultation and agreement with BW-TECH or authorize BW-TECH to assume sole conduct of the dispute.
- 7.8 If BW-TECH fails to properly perform any of its duties herein that is not within the ambit of defect liability, or is otherwise in breach, Licensee must give written notice of the failure or breach to BW-TECH and fix a limited additional time period during which BW-TECH has the opportunity to properly perform its duty or otherwise rectify the situation. Section 11.1 applies. BW-TECH will compensate for loss or wasted anticipatory expenditure subject to the exclusions and limitations in section 8.
- 8.1 BW-TECH’s liability in contract, tort, and otherwise for loss including but not limited to wasted anticipatory expenditure, is subject to the following provisions:
- (a) In cases of intent, BW-TECH’s liability extends to the full loss; in cases of gross negligence, BW-TECH’s liability is limited to the amount of foreseeable loss that would have been prevented through the exercise of due care; in cases of absence of a guaranteed quality, BW-TECH’s liability is limited to the amount of foreseeable loss that would have been prevented by the presence of the guaranteed quality.
- (b) In other cases: BW-TECH is not liable except for breach of a major obligation (Kardinalpflicht) and only up to the limits in the following subsection. A breach of a major obligation in the meaning of this section 8.1 (b) is assumed where the duty itself is a necessary prerequisite for the contractual performance, or where the breach of the relevant duty jeopardizes the purpose of the contract and where Licensee could legitimately rely upon its fulfillment.
Liability in cases under section 8.1 (b) in this section is limited to € 250,- per incident and limited in total to € 500,- for all claims arising out of the contract.
- 8.2 Contributory fault (e. g. breach of section 6 duties) and contributory negligence may be claimed. The limits of liability in section 8.1 do not apply to personal injury liability or liability under the German Product Liability Act (Produkthaftungsgesetz).
- 8.3 For all claims against BW-TECH in contract, tort, or otherwise for loss or wasted anticipatory expenditure the time bar comes into effect after a period of one year. That period begins at the point in time specified in the German Civil Code (BGB), section 199 (1). The foregoing provisions in this section notwithstanding, the time bar comes into effect not later than five years after the claim arises. The provisions in sentences 1 to 3 in this section do not apply to liability for intent or gross negligence, liability for personal injury, or liability under the German Product Liability Act. The provisions in this section do not affect the other time bar for claims arising out of defects as to quality and defects in title (sections 7.4 and 7.5).
9. CONFIDENTIALITY; DATA PROTECTION.
- 9.1. Use of Confidential Information. Both parties undertake forever to treat as confidential all of the other party’s Confidential Information acquired before and in connection with contract performance and to use such Confidential Information only in connection with contract performance. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of the Software Agreement. Any reproduction of any Confidential Information of the other party shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the other, each party: (a) shall take all Reasonable Steps (defined below) to keep all Confidential Information strictly confidential; and (b) shall not disclose any Confidential Information of the other to any person other than its individuals whose access is necessary to enable it to perform the contract. As used herein “Reasonable Steps” means those steps the receiving party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. On Licensee’s side, this includes the careful safeguarding of the Confidential Information and the prevention of infringement.
- 9.2 Exceptions. Section 9.1 above shall not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without a contractual breach by the receiving party; (c) at the time of disclosure, was known to the receiving party free of restriction; or (d) the disclosing party agrees in writing is free of such restrictions. Unless where agreed otherwise, section 9.1 also does not apply to knowledge related to Licensee’s idea’s, concepts, know-how, methods, processes or technologies that remain in the Unaided Memory of an BW-TECH deployed person, subject to any IP Rights of Licensee. “Unaided Memory” shall mean knowledge that the relevant person retains in its memory without reference to the documents or other tangible information obtained from Licensee, or copies transcripts thereof and only when the person has not intentionally learned the Confidential Information by heart with the aim of remembering it, using it later, or revealing it.
- 9.3 Confidential Terms and Conditions; Publicity. Licensee shall treat as confidential the terms and conditions of the Software Agreement, in particular the pricing contained therein. Neither party shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other. However BW-TECH may use Licensee’s name in customer listings (reference listings) or to analyze details from the contract (e. g. to forecast demand), as well as – subject to mutual agreement – as part of BW-TECH’s other marketing efforts.
- 9.4 Data Protection. Comprehensive Data Protection obligations of the parties pertaining to possible commissioned data processing are set forth in the Commissioned Data Processing Schedule attached to these GTC.
10. SUPPORT AND RENTAL: ADDITIONAL PROVISIONS.
- 10.1 Under rental contracts, BW-TECH Support is part of the rental service offered and can only be ended by terminating the rental contract. In respect of BW-TECH Software that is acquired under a purchase contract, BW-TECH provides BW-TECH Support on the basis of a discrete support contract.
- 10.2. BW-TECH Support services for the contractually agreed support model are provided as specified in the Pricelist valid from time to time.
- 10.3 BW-TECH may adapt the scope of the BW-TECH Support services to reflect the continuing development of the BW-TECH Software and technical advances. In the event that a change may negatively affect the justified interests of Licensee, BW-TECH will inform Licensee in writing or by electronic means, at least three (3) months before the change is scheduled to take effect, drawing attention to the termination option as described below and to the consequences of non-termination. In this case, Licensee is entitled to early termination of the BW-TECH Support contract / the rental contract as may be applicable, with effect from the time the change takes effect by giving two months’ prior notice (extraordinary termination right). Section 10.6 sentences 3 to 5 apply accordingly. In the event Licensee does not opt for early termination, the support contract will be continued with the changed scope of services.
- 10.4. BW-TECH provides BW-TECH Support for the most recent BW-TECH Software currently being shipped and – where applicable – for older BW-TECH Software according to the BW-TECH Software Lifecycle and in accordance with the BW-TECH release strategy posted on BW-TECH’s online information platform. BW-TECH’s provision of BW-TECH Support for Third Party Software can require the use of support services provided by the vendor in question. If the vendor does not provide the support services required by BW-TECH, BW-TECH has the right to give reasonable notice of at least three months effective at the end of a calendar quarter of extraordinary and partial termination on the contractual relationship for maintenance for the Third Party Software concerned.
- 10.5. The provisions in section 7 apply analogously to defects as to quality and defects in title in the BW-TECH Software delivered in performance of support duties. The right to terminate the support or rental contract for just cause replaces the right to rescind the contract. Any right to reduction of remuneration applies to remuneration under the support or rental contract. For rental contracts, the no-fault liability as provided in the German Civil Code (BGB) section 536a (a) for defects that existed at the time of contract execution is excluded.
- 10.6. The initial term of BW-TECH Support agreement is the remainder of the current calendar year and the next full calendar year (except in cases where the support agreement starts on January 1st of a respective calendar year, in which case the initial term will run until December 31st of the respective calendar year) (“Initial Term”). Thereupon the BW-TECH Support agreement is automatically extended from calendar year to calendar year (“Extension”). So far as BW-TECH offers BW-TECH Support for it, all of Licensee’s BW-TECH Software must be covered by the support. Licensee must always have all of its installations of the BW-TECH Software for which BW-TECH offers BW-TECH Support (including respective subsequent additionally licensed BW-TECH Software) fully covered by BW-TECH Support or terminate the BW-TECH Support completely. This provision also includes BW-TECH Software provided to Licensee by third parties, for which BW-TECH offers BW-TECH Support. For any additional BW-TECH Software license contracts Licensee shall extend the BW-TECH Support on the basis of discrete support contracts with BW-TECH.
- 10.7 Either party can effect regular termination of the BW-TECH Support agreement by giving three (3) months’ written notice that takes effect at the end of a calendar year, subject however, to the Initial Term. Either party can effect regular termination of a rental contract by giving three (3) months’ written notice that takes effect at the end of a calendar quarter, subject however, to the Initial Term. Sections 10.6 sentences 3 to 5 apply accordingly to rental contracts. Extraordinary termination rights and the right to termination for just cause remain unaffected.
- 10.8 Notice of termination for just cause is effective only if given in written form. The provisions in section 11.1 concerning notices setting limited extra time also apply. BW-TECH reserves the right to terminate for just cause where Licensee is repeatedly or seriously in breach of major contractual obligations (e. g. those in sections 2, 6 and 9). Such termination is without prejudice to BW-TECH’s entitlement to remuneration outstanding at the time of termination, and BW-TECH is entitled to claim liquidated damages due immediately in the amount of 60 % of the remuneration that would otherwise have become due up to the earliest time at which Licensee could have effected termination with regular notice. Licensee retains the right to show that BW-TECH’s actual loss is less.
- 10.9. If Licensee does not order the BW-TECH Support from immediately after delivery of the BW-TECH Software, but orders it later, then to obtain the current BW-TECH Software release it must pay all past support fees that it would have had to pay had it agreed to take BW-TECH Support from the time of delivery of the Software. Additionally, BW-TECH may claim a reactivation fee; upon request, BW-TECH will state its amount. Such payment falls due immediately and in full. These provisions also apply if Licensee takes up the BW-TECH Support again after a termination. The options to switch an BW-TECH Support model are detailed in the PRICELIST valid from time to time.
- 10.10 These GTC can be changed with regard to BW-TECH Support and rental agreements, provided that the change does not have any impact on the content of the BW-TECH Support or rental agreement that is material for the equivalency of services and remuneration between the parties and provided that such change is reasonably acceptable for Licensee. BW-TECH will inform Licensee about the change of the GTC in writing. If, in this case, Licensee does not expressly disagree in writing within 4 weeks after receipt of the change notice, the change will be deemed to be effected as is the changed GTC version is the basis for existing BW-TECH Support or rental agreements between BW-TECH and Licensee from that point in time. BW-TECH will draw attention to this consequence in the change notice.
11. FINAL PROVISIONS.
- 11.1 Except in emergencies, a limited time fixed by Licensee pursuant to the law or contract must not be less than 10 working days. Failure to comply with any fixed time limit entitles Licensee to be released from the contract (e. g. by rescission, termination, or claim for damages in lieu of performance) or to a price reduction for breach only if this was threatened in writing in the notice fixing the limited time as a consequence of failure to comply with that time limit. After a limited time fixed in accordance with sentence 2 expires, BW-TECH is entitled to give notice to Licensee requiring that any rights arising out of the expiration be exercised within two weeks of receipt of the notice.
- 11.2 BW-TECH has four weeks to accept offers made by Licensee. BW-TECH’s offers are nonbinding unless otherwise agreed in writing. In cases of conflict, the contract terms and details that apply are those in BW-TECH’s offer or confirmation.
- 11.3 The BW-TECH Software is subject to the export control laws of various countries, including without limit the laws of the United States and Germany. Licensee agrees that it will not submit the BW-TECH Software to any government agency for licensing consideration or other regulatory approval without the prior written consent of BW-TECH, and will not export the BW-TECH Software to countries, persons or entities prohibited by such laws. Licensee shall also be responsible for complying with all applicable legal regulations of the country where Licensee is registered, and any foreign countries with respect to the use of the BW-TECH Software by Licensee and its Affiliates.
- 11.4 German law applies exclusively to all claims in contract, in tort or otherwise, and the UN sales laws convention is excluded. If Licensee is a merchant within the meaning of the German Commercial Code (HGB), section 1, or a public-law juristic person or special fund, the sole place of jurisdiction for all differences arising out of or in connection with the Software Agreement shall be Munich.
- 11.5 The conclusion of contract, any subsequent amendment or addition and contractually relevant declarations as well as declarations directly require written form. The foregoing provision also applies to any waiver of the writtenform requirement. Where in this section 11.5 or elsewhere in these GTC written form is required, that requirement can also be met by facsimile transmission, exchange of letters. Except in that respect, however, the provisions in the German Civil Code (BGB), sections 127 (2) and (3) do not apply.
- 11.6 No conditions that are conflicting with or amending the Software Agreement – notably Licensee’s general terms and conditions – form any part of the contract, even where BW-TECH has performed a contract without expressly rejecting such provisions.
- 11.7 A BW-TECH separate agreement is required for any other goods, works and services that are not expressly described in the purchase, rental, leasing or BW-TECH Support agreements. Unless otherwise agreed, such goods, works and services are provided subject to BW-TECH’s General Terms and Conditions for Consulting and Services and BW-TECH is entitled to remuneration for them in accordance with the relevant BW-TECH list of prices and conditions. influencing a legal relationship, especially without being limited to termination notices, reminders or notices to set time limits
Valid: 01.SEP. 2016
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