General Terms and Conditions
1. General provisions
These General Terms and Conditions control the transfer of software as well as the provision of services and labour between ela-soft GmbH (referred to as ‘ela-soft’) and its customers. Customer terms and conditions apply only if ela-soft expressly agrees to these in writing.
The services to be provided by ela-soft are based on the written offer provided by ela-soft and the order confirmation.
Technical or other standards, the adherence to which is not obligatorily required by law, shall only be adhered to by ela-soft, if this is expressly included in the offer or the order confirmation.
ela-sot is entitled to additionally contract the provision of services by third parties (subcontractors).
Scope of delivery
2. Scope of delivery
ela-soft delivers software to the customer either on a data carrier or via a download, along with the relevant licence certificate. ela-soft shall amend the documentation to the software either electronically, or will provide the documentation electronically available for download. If it is clear from the order that the scope of supply does not include documentation, then it must be purchased separately. Without an express agreement, the documentation shall be provided in English or in the relevant language of the country of the Customer. There exists, however, no claim concerning the supply of documentation in the language of the Customer.
ela-soft will provide the Customer with a licence key if the software would require a licence key to make it technically available. This does not apply if the customer does not purchase any usage rights for the software according to the order.
The Customer shall receive along with the licence certificate a non-exclusive, time-unlimited right to install and use the software according to the licence certificate for the purposes described in the order and a the location of installation described in the order.
The provision of rights is conditioned on the time of complete payment.
Information concerning usage by US government offices: The software is commercial computer software.
Customer obligations/ Transfer to third parties
3. Customer obligations/ Transfer to third parties
The provision of the agreed-upon services by ela-soft requires the cooperation of the Customer. In order to adhere to their obligation to cooperate, the Customer shall employ appropriately qualified employees.
The Customer is obligated to provide a system environment according to the requirements stemming from the order, the licence certificate and the relevant documentation. The Customer shall in particular provide the information, documentation, premises, technical environments and relevant persons required for the provision of services on time and without charge. The Customer will inform ela-soft without delay on time about changes to conditions that may influence the services of ela-soft.
If the Customer does not come through with their obligation to cooperate as required, then ela-soft, without prejudice to further rights, may demand changes to the schedule and the remuneration. Costs of delay caused by such improperly provided cooperation services may permit ela-soft to charge these to the customer at the relevant general interest rates.
The Customer is responsible for the regular protection of their data. They are permitted to make backup copies.
The Customer is not permitted to lease out or sublicence the purchased software. They may not alter the software. If an adaptation of the software is permitted in any individual case or required for the purpose of assurance of interoperability, then the Customer must notify ela-soft before they proceed with the adaptation in agreement with ela-soft. Ela-soft may require appropriate remuneration for this agreement.
The Customer is permitted to sell the software to third parties, as long as the purchasing third party expresses beforehand their acknowledgement of the continuation of application of these general terms and conditions with respect to ela-soft. In case of sale, the Customer is obligated to provide ela-soft with the full address of the relevant third party.
With the sale, the right of the Customer to use the software expires. They are obligated to completely delete the installed software, and to transfer to the purchasing third party all copies, or to delete these copies.
Payment conditions and mutual settlement
4. Payment conditions and mutual settlement
The prices are to be understood as net of the relevant applicable statutory turnover tax. Invoices are payable upon their receipt without any deductions. Should the Customer not provide payment within 14 days from the maturity and receipt of the invoice, they are considered to be in default.
In case of remuneration based on time and resources, the relevant work and travel times are charged at the relevant prices in force.
A person-day spans eight (8) hours of work time. Person-days not provided in pull are remunerated according to the relevant share based on half-hours.
As long as the offer would not contain divergent provisions, travel costs and allowances are charged separately as applicable and as reasonable.
The Customer may enact mutual settlement only with respect to such claims that are undisputed and legally established.
The Customer only has a withholding right only with respect to such claims that stand in direct relation to this contract.
ela-soft may deny the execution of contractually agreed services if the Customer is in default with the execution of their obligation to provide payment or with does not render other contractual obligations on time or at all.
Industrial property rights and copyrights/ legal defects
5. Industrial property rights and copyrights/ legal defects
As long as nothing else is agreed upon, ela-soft is obligated to provide the services solely in the country of the point of delivery free of any intellectual property rights and copyrights of third parties (referred to as ‘trade mark rights’). If a third party would raise substantiated claims against a customer due to the violation of copyrights due to software supplied and used contractually by ela-soft, then ela-soft is liable against the customer within the deadline described under p. 6.3, as follows:
ela-soft, according to its own choice, at its own expense, shall either obtain a usage right concerning the relevant software, change it so that the copyright is no longer infringed, or replace it. If ela-soft would not be able to do this on reasonable conditions, then the Customer shall have the statutory right of withdrawal or reduction.
The obligation of ela-soft to provide damage compensation is based on item 7. The obligations of ela-soft described above only apply, as long as the customer immediately notifies ela-soft about the claims raised by the third parties, if they do not recognise the infringement and if ela-soft remains at liberty to use all measures of defence and conduct settlement negotiations. If the Customer would halt the usage of this software for reasons of damage reduction or for other important reasons, then they are obligated to inform the third party that the cessation of use does not equal any sort of recognition of the violation of copyright.
Customer claims are excluded if they are responsible for the violation of the copyright.
Customer claims are further excluded, if the violation of usage rights was caused by special requirements of the customer, by an application not foreseeable by ela-soft, or by the fact that the Customer changed the software or uses it in conjunction with products not supplied by ela-soft.
In case of copyright infringements, there apply accordingly in addition the provisions under p. 6 to the claims governed by p. 5.1 a).
In case of other legal defects, there apply accordingly the provisions of p. 6. Further claims of the Customer against ela-soft and its execution affiliates due to legal defects are excluded.
6. Material defects
Ela-soft guarantees the agreed upon design. It is based on the offer and the order confirmation. Ela-soft is liable for material defects as follows:
Flawed software will be, at the choice of ela-soft, repaired free of charge or delivered anew, as long as the cause of the material flaw was already in place at the time of transfer of risk. Repair of flaws is also considered to be any situation, in which ela-soft shows to the Customer possible options to avoid the effects of the flaw.
Information concerning the design or options of use of the software – even if these are described as guarantees – do not constitute representations as understood by par. 443 and 444 of the German Civil Code (Germ. Bürgerliches Gesetzbuch, BGB), unless they are expressly designated in writing as such representations with reference to the statutory provisions.
Claims of supplementary execution expire 12 months after the statutory commencement of the limitation period. The same applies to withdrawal and reduction. This limitation period does not apply if the law provides for longer periods according to par. 438 section 1 and no. 2, as well as par. 479 section 1 of the German Civil Code, in case of malice, malicious concealment of the flaw as well as in case of non-adherence to the guarantee of design. The statutory provisions concerning the suspension of expiry, expiry and renewal of the period remain unaffected.
Reports of flaws by the Customer must take place immediately and in writing.
If a flaw is reported in error, then ela-soft is entitled to demand reimbursement for the costs borne according to the relevant current Customer price list.
ela-soft must be provided with the possibility of supplementary performance within a reasonable period allowing at least two attempts at repair. If ela-soft is unable to conclude the supplementary performance within this time, then a reasonable last additional deadline is to be determined.
Claims are void in case of only minor divergences from the agreed design. No warranty also arises in case of non-reproducible software errors, as well as in cases of unprofessional attempts at repair by the customer or by a third party.
In case of a data loss for which ela-soft would be responsible, ela-soft is only liable for the recreation of the data for the effort that is required with proper data security of the Customer in place.
Damage compensation claims of the Customer are only valid according to the provisions of p. 7, and expire one year after the violation of any obligation, if there is no liability due to malice.
Damage compensation claims
7. Damage compensation claims
In all cases of contractual and extracontractual liability, ela-soft will provide damage compensation exclusively based on the following provisions.
Liability for damage caused by ela-soft or an supporting third party is excluded. This does not apply in case of liability base on the following:
According to the German Product Liability Act (Germ. Produkthaftungsgesetz)
in case of malice, fraud or grave negligence
in case of non-adherence to a warranty taken over
in case of culpable damage to life, limb or health
due to culpable violation of material contractual obligations
The damage compensation claim and the violation of material contractual obligations are, however, limited to typical, foreseeable damages as long as none of the other listed cases is at hand.
The preceding provisions do not include a change of the burden of proof to the disadvantage of the Customer.
Licence usage audit
8. Licence usage audit
The Customer is obligated to permit ela-soft once per year, upon request, to test the contractual usage of the software. ela-soft may execute the test themselves or contract the test with a third party obligated to maintain confidentiality. ela-soft shall announce the test in writing at least seven (7) working days in advance. The test may take place at the premises of the Customer at their regular business hours.
If the test would reveal usage of the software by the Customer that does not adhere to the contractual provisions, then ela-soft is entitled to charge to the customer a lump sum compensation in the amount of the licence fees that apply according to the current price list for the extended use. Furthermore, the Customer shall bear the Customer is to bear reasonable costs of the test. ela-soft reserves the claim to higher compensation against a relevant proof.
9. Miscellaneous provisions
In case of legal ineffectiveness of individual provisions, the remainder of these Terms and Conditions, as well as further agreements between ela-soft and the Customer, remain binding. Contractual loopholes are to be amended according to the economic purpose of the agreement.
There are no additional oral agreements. The Terms and Conditions may only be amended or lifted in writing. This also applies to the requirement of written form.
The exclusive court seat for all disputes arising out of or in relation to the contract is Berlin, Germany. Exclusively German law applies, with the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods.