Part I: General Provisions
§ 1 Scope of the Agreement
1) These contractual provisions set forth the general terms and conditions that shall apply to any and all Individual Agreements concluded between the Customer and TDM Systems GmbH.
2) Any performances and offers of TDM Systems GmbH are solely addressed to entrepreneurs within the meaning of § 14 German Civil Code (Bürgerliches Gesetzbuch).
§ 2 Definitions and Protection Clause
1) Protection Clause
The present contractual provisions including their annexes shall apply exclusively. General Terms and Conditions of the Customer shall not become part of the agreement.
a) “Delivery” is the date on which the Software is provided to the Customer by download or installation;
b) “Change” is any deviation from the originally agreed scope of performance, i.e. any change, supplement, augmentation or other deviation requested by the Customer and agreed upon in writing;
c) „Data“ means data the Customer creates with the Software and/or collects, saves, transports, changes or deletes by using the products and/or any of TDM Systems GmbH’s services under the agreement;
d) “Third Party” is any other person that TDM Systems GmbH has not granted rights of use to the Software.
e) “Documentation” is the user-manual for the Software; as the Software, the Documentation will be provided to the Customer in electronic format;
f) „Individual Agreement“ means the respective individual agreement that is concluded on the basis of the present contractual provisions including their annexes;
g) “Customer” is the enterprise that may allow its employees, authorized contributors and – upon agreement – its cooperation partners to use the Software;
h) “Employees” shall mean any and all employees of TDM Systems GmbH and/or any subcontractor or subcontractor’s employees commissioned with a performance under this agreement with the Customer’s consent; Employees have to be obligated on secrecy and data protection;
i) “Software” shall be the common term for the computer programs of TDM Systems GmbH;
j) “System” is the technical system of the Customer on which the Software shall run (sic. hardware, operating system software, firmware, required environment);
k) “System Environment” constitutes the technical environment that is required to operate the Software as specified; the System Environment is set out in the system requirements and the performance description for the technical products of TDM Systems GmbH; any alteration to the System Environment without TDM Systems GmbH’s consent may cause a Technical Error for which TDM Systems GmbH shall not be held responsible as it is impossible to bear a warranty for the proper functioning of the provided Software in any possible future system environment;
l) „Technical Error“ is a malfunction of the services or performances provided to the Customer or the occurrence of Software malfunctions; the occurrence of a Technical Error is independent from the question of whether TDM Systems GmbH is obliged to rectify the Technical Error based on statutory warranty obligations;
3) Other Manufacturers
The Software that TDM Systems GmbH provides to the Customer is partially based on software that is developed by other manufacturers or has been provided by other suppliers; or TDM Systems GmbH provides the Customer with other manufacturer’s software. If required, TDM Systems GmbH shall make the license terms of the respective software manufacturers available to the Customer. Unless TDM Systems GmbH has made a declaration to the contrary, solely the provisions on the transfer of the rights of use to the Software as set out in Section II of the present conditions shall be applicable.
§ 3 „Individual Agreement“
1) Only the performances and products that are set out in the Individual Agreement with their specific characteristics, features, uses and opportunities in accordance with the functional description and the Documentation shall be objects of the agreement.
2) The present contractual provisions shall be incorporated into any Individual Agreement in the event that the Parties hereto decide to conclude or negotiate an Individual Agreement and, at the time that Individual Agreement is concluded, at least one of the Parties hereto demonstrates that it wants the present contractual provisions to be incoporated into the Individual Agreement, and the respective other Party does not object without undue delay.
3) Any offer of TDM Systems GmbH is subject to the reservation of complete and prompt delivery by TDM Systems GmbH itself. TDM Systems GmbH reserves the right to withdraw an offer in the event that TDM Systems GmbH cannot be held responsible for a lack of supply.
4) Any descriptions in test programs, product or project descriptions, also in the Internet, are expressly not to be understood as descriptions of the product constitution within the meaning of sec. 434, 633 German Civil Act (Bürgerliches Gesetzbuch) – for one thing because the products are permanently adapted and further developed so that changes or errors in such descriptions have to remain reserved and such descriptions may also refer to future developments.
§ 4 Remuneration; Rights of Retention
1) The remuneration will be agreed upon in the Individual Agreement. Any and all payment terms, e.g. payment in installments, rebates, discounts, are set out in the Individual Agreement. The same shall apply for travel costs and other expenditures.
2) All fees are net prices and are payable in addition to the respective valid VAT.
3) TDM Systems GmbH reserves the right of retention in the event of outstanding payments originating from the same contractual relationship. The Customer will be notified by a respective warning regarding the accessibility of the Software if TDM Systems GmbH makes the use of the Software conditional upon payment of the accounts due. The Customer may, in the event of outstanding payments, also be notified about the blocking of access to the Software by phone and/or in writing.
§ 5 Time of Performance; Default; Partial Performance by TDM Systems GmbH; Transfer of Risk
1) The place of performance shall be the Customer’s place of business unless agreed upon otherwise in the Individual Agreement.
2) Payments become due and payable within the period of time set out in the invoice and have to be made to one of TDM Systems GmbH’s accounts stated in the invoice.
3) The Customer must designate which claims he would like to settle with the respective payment. If he does not do so, the payments shall be used to settle existing secondary accounts (interest etc.) and afterwards the respective oldest debt of the Customer.
4) Should the Customer fail to observe aforementioned payment terms TDM Systems GmbH shall be entitled to claim default damages in the amount of the statutory default interest; this shall not affect TDM Systems GmbH’s right to claim further damages.
5) In the event that the Customer refuses to fulfill his payment obligations even though TDM Systems GmbH has issued a written reminder with a reasonable time-limit, TDM Systems GmbH is entitled to stop any performance executed for the Customer within the scope of a project or, for continuing obligations, refuse to execute the performances not yet paid for, to withdraw the respective agreement, to assert retained rights within the meaning of § 6, to revoke any and all revocable rights of use, and invoice any and all costs incurred at that point of time; the rights set out in section 4 above shall remain unaffected.
6) TDM Systems GmbH is entitled to partial delivery and partial performance and may assert third parties with the fulfillment of its contractual duties.
7) The risk of accidental loss or destruction shall pass to the Customer with the Delivery. In the event that goods are shipped the risk shall pass with the handing-over at the Customer’s place of business.
§ 6 Reservation of Rights of Use and Title
1) Until the Customer has fully paid any and all claims originating from an Individual Agreement (hereinafter “Fulfillment of the Condition”) existing at the time of Delivery, any rights of use for the delivered Software shall be granted to the Customer only for a limited period of time, and shall be revocable subject to the conditions set out in § 5 sec. 5 above. If the Customer executes his payment by cheque or promissory note, the cashing thereof shall be the Fulfillment of the Condition
2) In the event that TDM Systems GmbH asserts the retained right the Customer’s right to use the Software will lapse, unless expressly declared otherwise by TDM Systems GmbH. The Customer, in such case, must delete any and all copies of the program
3) Any physically delivered goods shall remain the property of TDM Systems GmbH until their full payment in accordance with the respective Individual Agreement.
§ 7 Liability
1) TDM Systems GmbH shall not be held liable for damages due to the loss of data or for damages incurred because the Customer cannot productively use the Software if these damages were caused due to the fact that the Customer has neglected to secure the Software and any Data processed with the Software in reasonable periods of time using methods in accordance with the respective current and established state of technology
2) TDM Systems GmbH shall be liable in accordance with the statutory provisions in the event of willful or grossly negligent misconduct, also by its Employees. The same shall apply to negligently caused damages to life, limb, or health, or in the event of damages incurred by the Customer due to a breach of a guarantee. The liability in accordance with the Product Liability Act (Produkthaftungsgesetz) shall also remain unaffected.
3) The liability for material and financial damages that are caused by simple negligence on the side of TDM Systems GmbH or its Employees shall be restricted to the violation of essential contractual obligations. ,However, the liability shall be limited to the foreseeable damage to be typically expected. An obligation is to be considered a material contractual obligation if its fulfillment is a precondition for the proper performance of the contract and the Customer may generally rely on its fulfillment.
4) Claims in accordance with this section shall become statue-barred within 12 months a.) in the event of a purchase upon the transfer of risk, b.) in the event of a development upon acceptance thereof, or c.) in any other case 12 months upon the moment in which the Customer got to know or grossly negligent failed to know the damage incurred.
5) The compatibility of the Software to the Customer’s existing hardware and software configuration shall only be warranted for the System Environment as set out in the respective performance description. TDM Systems GmbH shall not be liable for the compatibility of the Software to other hardware and software configurations of the Customer that are altered by the Customer after the order. Furthermore, TDM Systems GmbH shall not be held liable for the compatibility of systems that are possibly put into operation by other suppliers at the same time that TDM Systems GmbH provides its services. Deviations are to be agreed upon separately. If the Customer changes the System Environment required for the proper functioning of the Software or hardware after installation or acceptance of the Software without TDM Systems GmbH’s prior consent, the Customer shall carry the burden of proof that the damages were not caused by the changes to the system environment. The same shall apply in the event that the Customer has changed the delivered product itself.
§ 8 Defects and Defects of Title for the Purchase of Software; Statute of Limitation
1) In the event of a defect, TDM Systems GmbH will perform its warranty obligation by subsequent performance. For this purpose, TDM Systems GmbH either delivers a new and error-free version of the Software to the Customer, or remedies the defect. It shall also be deemed a remedy of a defect if TDM Systems GmbH provides the Customer with an interim solution containing reasonable workarounds avoiding the effects of the defect, but only if such interim solution is reasonable for the Customer to accept. If the remedy of the defect fails after a reasonable number of attempts, and/or has not been fulfilled within a reasonable period of time, the Customer has the right to withdraw the agreement
2) Defects of title: If a third party asserts claims that bar the contractual use of the Software, the Customer shall immediately inform TDM Systems GmbH thereof. He hereby authorizes TDM Systems GmbH to carry on the dispute judicially or extra-judicially alone. TDM Systems GmbH is obligated to ward off the claims at its own costs and to indemnify the Customer from all costs and damages related to the defense against the claims insofar as these costs and damages have not be caused by the Customer’s own breach of duty.
3) The statute of limitation for all warranty claims is 12 months and shall begin upon Delivery of the Software. The same statute of limitation shall apply to any other claims against TDM Systems GmbH, regardless of their nature. This shall not apply to damages claims insofar as TDM Systems GmbH acted willfully or grossly negligent, in the event of damages to life, limb or health as well as to damages that are incurred due to a breach of guarantee. The provisions of the Product Liability Act (Produkthaftungsgesetz) shall also remain unaffected.
4) If it turns out that a defect, the Customer has claimed for rectification of, is not a defect but only a Technical Error, the Customer may separately commission the elimination thereof.
§ 9 Cooperation Duties
1) General Cooperation Duties
Notwithstanding any individually agreed special provisions, the Customer has to comply with the following general duties to co-operate. The Customer is obliged to carry out the required organizational and personal measurements; he will especially
• for the term of the agreement designate in writing a responsible person who has all decision-making authority for the purposes of the execution of the agreement;
• support TDM Systems GmbH to the best of his abilities and possibilities in the search for the cause of the defects and encourage all his employees to cooperate with TDM Systems GmbH’s Employees if necessary;
• create the technical conditions required for the System Environment and maintain them during the term of the project;
• grant TDM Systems GmbH’s Employees commissioned with hotline-support access to the computers on which the Software is saved and/or loaded;
• run a testing system complying as good as possible with the System Environment; he will at first install any and all newly delivered Software on the testing system and determine whether any Technical Errors occur in the testing environment..
• support TDM Systems GmbH in all respects in the fulfillment of the contractual obligations without charge. The Customer is obliged to actively support TDM Systems GmbH in the analyzing of an error and document the error in a manner that allows the reproduction of the error. The extent of this duty is conditional upon the Customer’s ability to ascertain and describe Technical Errors. Any and all error notice has to contain information on the sort of the Technical Error, the module in which the Technical Error occurred, the version number, as well as the works carried out on the computer at the time that the Technical Error occurred. An error notice has to be in text form; the Customer shall use the (electronic) forms provided by TDM Systems GmbH, if any.
2) If it becomes apparent to TDM Systems GmbH that the Customer does not fulfill a duty to co-operate in compliance with the agreement, TDM Systems GmbH shall notify the Customer respectively and inform him about the impact thereof. TDM Systems GmbH shall not be in default as long as the Customer does not duly fulfill a duty to co-operate imposed on him. In addition, the statutory provisions shall apply.
§ 10 Change Request Procedure
1) The procedure described below shall apply in the event of any limitation, change, or augmentation of the originally agreed scope of performance, or any changes to the present contractual provisions.
2) Either Party is entitled to start a change request procedure at any time by submitting a respective request. Such change request must be made in writing and has to contain sufficient information as to enable the respective other Party to examine the change request. Therefore, any change request has to contain at least the following information:
– description of the requested Change;
– intent and purpose of the requested Change;
– special circumstances and background information that have to be observed in relation with the requested Change;
- additional efforts for the Change
- additional costs for the Change incurred by either Party;
- impact on due dates according to the Individual Agreements
3) Any and all Changes require a written agreement between the Parties that has to be duly signed by the respective contact persons. Such agreement shall specify the date as of which the Change shall enter into force.
4) Changes requested by the Customer
The Customer will prepare a document comprising the functional change request. Subject to a specific agreement and on the basis of the agreed daily rates, TDM Systems GmbH shall support the Customer in doing so.
In the event that the Customer’s project manager or any other authorized person submits a change request, TDM Systems GmbH shall examine such request and present to the Customer a written offer for the implementation of the requested Change.
5) In the event that TDM Systems GmbH comes to the conclusion that a Change is required in order to achieve the project’s success, TDM Systems GmbH will present to the Customer a respective offer in accordance with the formal criteria set out above.
§ 11 Confidentiality
1) The Parties’ business relationship is based on trust and loyalty. Therefore, the Parties mutually pledge that all information, documents and data that a Party receives or gains knowledge of from the other Party, or comes to the attention of the receiving Party within the course of the cooperation and that is marked as “restricted” or declared as such (“Confidential Information”) shall be treated as entrusted company secrets and shall not be given to third parties or exploited for the term of the agreement and two years thereafter. This shall not apply as long as and insofar as this information, these documents and data
a) were already known by the Parties before the obligation of non-disclosure was entered into, or
b) are or become publically known without either Party being responsible for that, or
c) was passed on or provided lawfully to the receiving Party by a third party, who is not obligated by a non-disclosure agreement, or was given consent by the disclosing Party in writing to disclose the Confidential Information, or
d) have to be disclosed in accordance with provisions of law or administrative regulations or in accordance with an uncontestable court decision if the receiving Party informs the disclosing Party immediately of the obligation and limits the scope of the disclosure as far as possible.
2) Both Parties and their affiliated companies within the meaning of § 15 German Stock Corporation Act (Aktiengesetz) are obligated and shall obligate their respective employees to treat all Confidential Information confidentially and particularly shall not make any documents available to Third Parties. The Parties may only disclose Confidential Information of the respective other Party to its own employees on a need-to-know basis.
3) Upon request, both Parties shall irrevocably delete all Confidential Information or return the Confidential Information to the other Party at the end of the cooperation. If demanded, the deletion of the Confidential Information shall be confirmed in writing. The obligation of non-disclosure in accordance with this section and the obligations of data protection shall remain in force after the present agreement has expired or after complete execution of the agreement.
4) These stipulations are fully applicable to all Employees of TDM Systems GmbH.
5) Furthermore, TDM Systems GmbH shall ensure that all Employees observe the statutory provisions on data protection. The obligation of these persons to data secrecy in accordance with the data protection legislation shall be undertaken before the Employees execute the first performances; the obligation of the Employees shall be proven to the Customer upon request. The same shall apply to employees of commissioned subcontractors.
6) If the Customer is in breach of one of the provisions set out in this section, TDM Systems GmbH may claim a contractual penalty in a reasonable amount. The amount due will be calculated by TDM Systems GmbH for every individual incident adequately e.g. to the severity of the breach, the Customer’s default, and the damage incurred by TDM Systems GmbH. The amount due can be made subject to a juridical review. Notwithstanding the afore-said, TDM Systems GmbH’s right to claim further damages shall remain unaffected.
§ 12 Miscellaneous
1) If any provision of the present agreement or any additional agreement related thereto is invalid or becomes invalid, the validity of the remaining provisions shall remain unaffected.
2) All agreements which entail a change, a supplement or specification of a part of the agreement in accordance with § 2, as well as any guarantees or arrangements, are to be set forth in writing. If an agent or auxiliary personnel of TDM Systems GmbH declare them, the declarations shall only be binding if TDM Systems GmbH’s management has given its written consent thereto.
3) TDM Systems GmbH is permitted to use the project for internal project reports, for example information regarding implemented technologies or application fields. Case studies or success stories may only be published on TDM Systems GmbH’s website and in presentations with the Customer’s prior written consent.
4) The Customer may transfer its rights under this agreement to a Third Party only upon prior written consent of TDM Systems GmbH. TDM Systems GmbH is entitled to transfer the agreement as a whole or any specific performance thereunder to its affiliated companies within the meaning of § 15 German Stock Corporation Act (Aktiengesetz).
5) The Parties agree that the laws of Germany shall be applicable in regards to all legal relations arising out of this contractual relationship.
6) If the Customer is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law, or a special fund under public law, the place of jurisdiction for all disputes, which arise in the course of the execution of this contractual relationship, is TDM Systems GmbH’s place of business. Notwithstanding the afore-said, TDM Systems GmbH may also raise an action at the court that is competent at the Customer’s place of business
Part II: License Terms
§ 1 General
Subject of these license terms is the Software as described in the Individual Agreements, comprising the computer program in the object code and a volume of the respective Documentation, if so provided by the respective supplier.
§ 2 Scope of the Customer’s Rights of Use to the Software
1) Server Software
Unless agreed upon otherwise, Software named as server software may be permanently stored on one server medium and temporarily loaded into the RAM of that server. The operation of another instance, e.g. a virtual machine, shall require a further license. The server software may also be operated from a data center run by a company other than TDM Systems GmbH or the Customer itself.
2) Client Software
Software named as client software may be permanently stored on a random number of the Customer’s computers as long as it is taken care of that the Customer permanently remains in possession of these computers. The client software may be loaded into the RAM of any computer on which it is permanently stored, but simultaneously only to a maximum corresponding with the number of client software licenses acquired by the Customer.
3) The Customer is granted permanent or timely limited rights of use conditional upon the Fulfillment of the Condition. The rights of use are granted locally, continentally, or worldwide.
4) Unless explicitly stated otherwise in these license terms, the Customer is not granted any rights of use; the Customer does not have the right to change, to adapt, to translate, to port, to reverse engineer, to disassemble, to decompile or to ascertain the source code of the Software through other measures. The provisions of §§ 69d, 69e German Copyright Act (Urheberrechtsgesetz) shall remain unaffected.
§ 3 Scope of the Customer’s Rights of Use to Software Delivered Under a Maintenance Agreement
1) In the event that Software delivered under a maintenance agreement is made subject to special license terms, these shall apply. In any other case, the present contractual provisions (Part II) shall apply.
2) In the event that the Customer replaces Software (i.e. loads new Software into the RAM of one of his computers) by new Software (e.g. an update replacing an older program version) the Customer’s right to temporarily copy such replaced Software into the RAM of a computer shall lapse. This shall not affect the right to permanently store such replaced Software as a backup copy for archiving purposes.
§ 4 Correction of Technical Errors
1) The Customer does not have the right to correct any defects in the Software as long as TDM Systems GmbH or any Third Parties authorized by TDM Systems GmbH offer to eliminate the defect at customary terms.
2) If, in addition to the information provided in the Documentation, the Customer requires further information which will enable the interoperability of the Software with independently developed computer programs, the Customer shall first request this additional information from TDM Systems GmbH. TDM Systems GmbH retains the right to supply the Customer with the necessary information. The provisions of the German Copyright Act (Urheberrechtsgesetz) remain unaffected.
§ 5 Scope of the Customer’s Rights of Use (Evaluation Licenses)
1) The Customer is granted the simple rights of use to the Software for the agreed testing period; these rights are territorially limited to the place of the respective production plant. TDM Systems GmbH reserves the right to prolong or revoke the rights of use even before expiry of the testing period. The rights of use solely comprise the right to use the Software on a computer, i.e. to permanently and temporarily reproduce the Software.
2) Unless upon prior written consent of TDM Systems GmbH the Customer is not entitled to transfer any right to Third Parties or to grant rights of use to those. The Customer is obliged not to make accessible the Software or the Documentation, neither the original nor any full or partial copy thereof, to any Third Party without the prior written consent of TDM Systems GmbH.
3) The sole purpose of the granting of the rights of use is to enable the Customer to test the Software for a limited period of time.
4) Upon expiry of the testing period the Customer is obliged to delete the test version and any copy thereof without undue delay; this shall not apply in the event that the Customer has acquired further rights of use to the Software at this point of time.
5) Claims for liability and warranty in connection with Software that was provided to the Customer free of charge may only be asserted in accordance with the statutory provisions, i.e. only in the event of damages caused willfully and by fraudulent concealment.
§ 6 Obligations to Secrecy and Security
The Customer is obliged to undertake reasonable efforts to avoid unauthorized access to the Software and he has to make sure that any authorized user of the Software complies with the license terms and their limitations of use.