As act from November 30, 2014
§ 1 Subject of the Agreement
(1) The Customer shall acquire the software specified in the offer including the database comprised therein (hereinafter “Software”) from FlowHeater GmbH.
(2) The properties of the Software delivered by FlowHeater GmbH shall be specified in the performance specification valid upon conclusion of the Agreement. The provision of the functions and characteristics of the Software in a system environment described in the performance specification or in a system environment that is objectively customary at the time the Software is provided shall be warranted.
(3) The terms and conditions of business of the Customer shall not become an integral part of this Agreement.
§ 2 Delivery and Delivery Times
(1) The Software shall be provided in the version current upon conclusion of the Agreement unless otherwise agreed upon.
(2) The Software shall only be provided electronically.
§ 3 Inspection Obligations and Obligation to Give Notice of Defects
(1) The Customer is obligated to inspect all deliveries and services supplied by FlowHeater GmbH in execution of this Agreement and to give notice of defects in accordance with § 377 HGB (Commercial Code of the Federal Republic of Germany).
(2) The Software autonomously alters the data in databases and files. The Customer is obligated to make a backup of all relevant data before each use of the Software. Sufficient tests are to be carried out before productively transferring and altering data. The Customer must thereby use his own test environment.
§ 4 Material Defect and Defect of Title; Other Impairments of Performance; Statute of Limitations
(1) FlowHeater GmbH shall initially fulfill its warranty obligations for material defects by remedying the defect. For this purpose, FlowHeater GmbH shall at its own choice either provide a new Software free of defects or eliminate the defect. The defect shall also be deemed to have been remedied if FlowHeater GmbH provides the Customer with an reasonable alternative solution in the form of a new software releases, which circumvents the effects of the defect insofar as the implementation thereof is reasonable for the Customer.
(2) FlowHeater GmbH shall initially fulfill its warranty obligations for defects of title by remedying the defect. For this purpose, FlowHeater GmbH shall at its own choice make the legally irreproachable use of the software possible or shall substitute the Software or parts thereof.
(3) FlowHeater GmbH has the right to make the remedy of the defect dependent on the payment of a reasonable amount of the fees.
(4) The right to declare the revocation of the Agreement is foreclosed if the defect is nonessential, and thereby the use of the functions of the Software are only marginally limited.
(5) If third party asserts claims that hinder the contractual use of the Software, the Customer shall immediately inform FlowHeater GmbH thereof. The Customer hereby grants FlowHeater GmbH the power of attorney to judicially and extra-judicially conduct the dispute alone. FlowHeater GmbH is obligated to ward off such claims at its own expense and shall indemnify the Customer from all costs and damages related to the defense against the claims insofar as these claims are not based on a breach of obligations of the Customer.
(6) The statute of limitations for all warranties is one year. The term of the statute of limitations shall begin upon delivery or provision of the contractual software. This limitation shall not apply to damages claims that are asserted because the software is defective if the defect is caused willfully or gross negligently, if the defect was kept secret maliciously, in the case of damages to life, limb or health, or if a guarantee has been breached. The legal statute of limitations shall apply hereto and to claims arising out of the Product Liability Act of the Federal Republic of Germany.
(7) The Customer must carry out all measures necessary so that FlowHeater GmbH can eliminate all defects as quickly as possible, for example by providing and enabling access to the computers or by enabling access to the computers via the internet. FlowHeater GmbH shall not be in default as long as the Customer has not fulfilled these duties to cooperate. However, FlowHeater GmbH must inform the Customer thereof in writing.
(8) The Customer is not entitled to support services free of charge particularly within the scope of the use of the forum.
§ 5 Rights of Use
(1) FlowHeater GmbH shall grant the Customer the non-exclusive rights to permanently and temporarily reproduce the delivered software a contractually agreed upon number of times for an unlimited period of time. No further rights of use are granted hereby. The source code is not subject matter of the transfer of rights. All accompanying software parts of other software producers may only be used together with the software delivered by FlowHeater GmbH.
(2) The software may not be used for outsourcing or in application service providing (ASP). These types of use are only permissible if the Customer has been granted the necessary additional rights of use by FlowHeater GmbH.
(3) The Customer may only give the software to a third party or a service provider if FlowHeater GmbH has consented thereto in writing. If FlowHeater GmbH has given its consent then the service provider is to be obligated to use the software for the Customer only. No contractual relationship shall be established between FlowHeater GmbH and the third party if the rights of use are granted to such a third party or a service provider.
(4) The software may be reproduced for the purpose of making a security back insofar as this is necessary.
(5) The software shall only be made available by download and shall not be delivered physically. It is forbidden to circulate the software for commercial purposes.
(6) The Customer only has the right to decompile the software if the prerequisites of the regulations of § 69e of the Copyright Act of the Federal Republic of Germany are fulfilled.
(7) To unlock the software requires a valid email address and a one-time online activation.
§ 6 Maintenance of the Software
Maintenance and support services shall be regulated in a separate agreement. The customer's usage rights include the possibility to use any and all versions of the software that are published within a period of one year from the date of purchase. After expiry of this period of availability of updates, the customer may continue to use the software.
§ 7 Liability
The liability for negligently caused damages shall be limited to the typical extent of damages that were apparent to FlowHeater GmbH upon conclusion of the Agreement. Otherwise the legal regulations shall be applicable.
§ 8 Evaluation Licenses
(1) The Customer is granted the non-exclusive worldwide right of use of the software for the term of the testing period. Thereby, the Customer only has the right to load the software onto one computer and to use the software. No further rights are granted.
(2) The Customer does not have the right to transfer these rights of use to a third party or to grant a third party rights of use without FlowHeater GmbH’s prior consent.
(3) The Customer is obligated not give third parties access to the software and documentation in the original form or in form of a copy of the software, in whole or in part, without FlowHeater GmbH’s prior written consent.
(4) The rights of use are granted to enable the Customer to test the computer program for a limited period of time.
(5) Upon termination of the testing period, the Customer is obligated to delete the test version and any copies thereof immediately unless the Customer has obtained additional rights of use to the software by this time.
(6) FlowHeater GmbH has the right to extend the rights of use at any time or to revoke the rights of use before the testing period is completed.
(7) The liability and the warranty for the software provided free of charge shall be determined by the legal regulations.
(8) Specially marked freeware versions of the software may be used by the Customer for private and commercial purposes for an unlimited period of time. The aforementioned subsections 1 to 7 shall apply accordingly.
§ 9 Sales Price
The sales price plus the legal VAT without any deductions is due immediately upon receipt of the software.
§ 10 Place of Jurisdiction / General
(1) Should a provision of this Agreement be legally invalid, or a provision of this Agreement become legally invalid due to a subsequent circumstance, or should there be a gap in this Agreement, the legal validity of the remaining provisions shall be unaffected thereby.
(2) This Agreement regulates all rights and obligations between the Parties. Changes to this Agreement must be set down in writing and must refer to this Agreement to be valid; both Parties must sign this new document. The associated supplements to this Agreement shall be an integral part of this Agreement upon signature.
(3) The place of jurisdiction for all disputes arising out of this Agreement is FlowHeater GmbH’s place of business insofar as this is legally permissible. The laws of the Federal Republic of Germany are applicable.