The customer is granted the personal, non-exclusive, and non-transferable right, upon payment of the agreed remuneration, to use the standard application program («Program») specified on the offer/order confirmation, together with the documentation provided in written or machine-readable form, on a suitable computer system or cloud infrastructure installed at the customer's premises (»Customer System") for an indefinite period, in accordance with its intended use.
«Intended use» for the purposes of these licence terms comprises, but is not limited to:
Payment shall be made in cash upon delivery of the program or within 30 days of the invoice date. Unless otherwise agreed, the prices quoted are for the simple use of a program copy, excluding statutory value added tax and any postage, costs for data carriers and data transmission, etc.
The licensor has the right to charge default interest on all outstanding payments after the due date, without prior notice, at a rate of 2.5% % per month above the base interest rate.
The set-off of any claims of one contracting party against counterclaims of the other party requires prior written agreement.
If the licence is rented or made available within a cloud offering, all rights of use to the software shall expire upon termination of the rental or cloud agreement. The customer's data shall be made available to them in a suitable format.
Use of the software on a system other than the customer's system, on multiple workstations, in networks, in client-server operation, on additional mobile devices, the temporary or permanent rental or leasing of the software, its modification, and the reverse engineering of machine-readable software to its source code (unless strictly necessary for the correction of software errors or the creation of interoperability) require prior written agreement with the licensor.
With the prior written consent of the licensor, the customer may pass on the programme, alone or together with the customer system, to a third party, provided that they confirm in writing that they will not retain any copies and will cease its use definitively.
Breach of the provisions concerning extended use (paragraph 4) and programme distribution (paragraph 5) constitutes an infringement of the licensor's protected rights and entitles the licensor, for each unauthorised additional use or distribution of the programme, to double the amount of the one-off licence fee, without prejudice to compensation for further damages and to civil and criminal sanctions for intellectual property infringement.
The customer acknowledges the proprietary rights, particularly the licensor's copyright in the software and documentation. Accordingly, they shall affix the licensor's proprietary notices to all full or partial copies of the software and documentation created during intended use.
The software and documentation contain information, ideas, concepts and procedures, particularly concerning the processing of data and the organisation of processes, which constitute proprietary business and trade secrets of the licensor. Accordingly, the customer undertakes to treat the software and documentation with the same care and confidentiality as their own business and trade secrets, to use them only for their intended purpose in accordance with these license terms, and not to make them accessible or publish them to third parties in any form whatsoever, neither in whole nor in part.
The customer shall take the necessary organisational and technical measures to protect the programme and documentation from unintentional disclosure, unauthorised access, theft or misuse. In particular, the customer shall erase all parts of the programme stored on storage media before passing them on. Furthermore, the customer shall ensure control over the number and location of backup copies of the programme created in connection with its intended use.
The responsibility for the procurement and maintenance of a suitable IT system, the selection, installation and use of the software, and the results generated by its use lies with the customer, and the licensor can provide no warranty for this.
The customer exclusively uses IT components (hardware and software) recommended by Triviso GmbH. If the customer uses other IT components, they bear the risk alone, and Triviso GmbH accepts no warranty or liability for them. Any additional expenses and damages incurred by Triviso GmbH in connection with the use of non-recommended IT components, including claims from third parties, shall be borne in full by the customer.
If the customer uses products that have not been recommended, they acknowledge that Triviso GmbH may be unable to provide its usual, proper services to the customer for technical reasons, particularly concerning performance issues.
Services related to adapting the programme to special customer needs, support with installation and commissioning, introduction and training of customer personnel, advice on application problems, maintenance and care of the programme, and delivery of additional copies of printed documentation are provided by the licensor under a special agreement or a separate service contract.
The manufacturer shall be liable for direct damages incurred by the customer in connection with the performance of the contract, for example, due to non-performance, breach of duty of care, delay or infringement of property rights, only if such damages have been demonstrably caused by gross negligence or intent by Triviso.
Triviso expressly disclaims any liability for damages incurred by the customer in connection with the use and utilisation of the equipment and licensed material, and for the results thereby achieved, in particular for loss of profit, unrealised savings, additional expenses, or third-party claims.
The manufacturer points out that it is not possible to create computer software that will operate without errors in all applications and combinations. The subject of this contract is therefore only software that operates substantially as described in the functional description.
The manufacturer guarantees that the software will function in accordance with the feature description when used as intended. The manufacturer disclaims all warranties, particularly under the following circumstances:
Should any defects in the software be identified, the customer must immediately notify the manufacturer in writing. The warranty period shall last for 90 days from the delivery of the software. If the software is defective within the meaning of clause 12.4, the customer shall be entitled to have the defect remedied by means of an update. If the defect remedy fails twice, the manufacturer shall be entitled to withdraw from the present agreement in writing. This shall be without prejudice to the license agreement and the agreement under which the customer acquired the software. Other warranty claims (in particular, performance of the remedy by a third party) are expressly excluded.
The warranty for usage rights is excluded.
Any changes or additions to these terms of use, as well as any collateral agreements, must be in writing and acknowledged by the customer and the licensor to be valid.
Should a provision of this contract be or become invalid or should the contract be incomplete, the validity of the remaining content of the contract
unaffected by this. The invalid provision shall be deemed to be replaced by such a provision that legally fulfils the meaning and purpose of the invalid provision.
This is the closest economically. The same applies to any contractual gaps.
These licence terms are governed by German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980.
The ordinary court at the licensor's registered office shall have exclusive jurisdiction to decide on all disputes arising from or in connection with these licence terms, subject to the licensor's right to sue the customer for amounts owed at the customer's registered office.
Freiburg, January 2018
