General Terms & Conditions

for offers, supplies, services and software license
ela-soft GmbH, Breitenbachstraße 10, D-13509 Berlin, named ela-soft.
date: 08/16

1. General

These general terms and conditions ("T&Cs") govern the provision of software as well as the provision of services and work between ela-soft GmbH ("ela-soft") and its customers. Customers’ own general terms and conditions shall apply only in so far as ela-soft have expressly agreed in writing to such.

1.2

The services to be provided by ela-soft are derived from the offer submitted in writing by ela-soft and the respective order confirmation.

1.3

Technical or other standards, compliance with which is not legally prescribed, need only be met by ela-soft in so far as these arise expressly in the offer or order confirmation.

1.4

ela-soft is also entitled to provide services via third parties (subcontractors).

 

2. Scope of Delivery

2.1

ela-soft shall provide customers with the software, as well as the accompanying license certificate (CoL), either on a data carrier or as a download. ela-soft shall include documentation pertaining to the software either in electronic form or for download. Where it is clear from the order that the documentation is not included in the scope of delivery, this must be purchased separately. Unless expressly agreed otherwise, the documentation will be delivered in English or in the language of the country of the customer. No claim exists however for the documentation to be delivered in the language of the customer.

2.2

ela-soft shall provide the customer with a License Key, if unlocking the software requires a License Key. This shall not apply if the customer, as per the order, has not purchased usage rights for the software.

2.3

With the CoL, the customer shall receive the non-exclusive and perpetual right to install the software and to use it in accordance with the CoL for the purposes named in the order and in the installation location specified in the order.

2.4

The assignment of rights is conditional until such time as full payment is made.

2.5

Information for the case of use by US government authorities: The software is commercial computer software.

 

3. Obligations of the customer / transfer to third parties

3.1

The provision of the agreed services by ela-soft requires the involvement of the customer. To fulfil its obligation to cooperate, the customer shall recruit sufficiently qualified staff. 

3.2

The customer is obliged to prepare the system environment in accordance with the requirements arising from the order, the CoL and the associated documentation. In particular, the customer shall make available in good time and without charge all such information, documents, premises, technical environments and information personnel necessary for the provision of service. ela-soft shall be informed immediately of changed circumstances, which could have an impact on the performance of ela-soft.

3.3

If the customer provides the services due incorrectly, ela-soft may demand, without prejudice, further rights, and changes to the schedule and to the remuneration.  ela-soft may charge the customer for downtime costs arising from such incorrectly provided cooperation services by means of applying the respective general daily personnel rates.

3.4

The customer is responsible for the regular backup of its data. The customer is entitled to make backup copies.

3.5

The customer is not permitted to rent the purchased software out or to grant a sub-licence. The customer may not modify the software. If an adjustment of software is allowed for an individual case or if it becomes necessary for the establishment of interoperability of the software, the customer must inform ela-soft before said adjustment is made in agreement with ela-soft. Ela-soft may demand an appropriate remuneration for this agreement.

3.6

The customer is authorised to sell the software to third parties insofar as the acquiring third party has previously agreed in writing to the continued validity of T&Cs. In the event of a sale, the customer is obliged to inform ela-soft in advance, and in writing, of the full address of the third party.

3.7.

The right of the customer to use the software expires upon its sale. The customer must completely delete the installed software and transfer all copies to the acquiring third party, or delete said copies.

 

4. Terms of payment and Setting-off

4.1

All prices are excl. of applicable VAT. Invoices are payable without discount immediately upon receipt. The customer shall be in default if payment is not made at the latest within 14 days following the due date of the payment claim and receipt of the invoice.

4.2

For remuneration for time and materials, labour and travel times incurred will be calculated against the prices valid respectively.

4.3

One personnel day consists of eight (8) hours of working time. Incomplete personnel days will be remunerated on a pro-rata half-hourly basis.

4.4

Insofar as the offer does not describe otherwise, travel costs and expenses will be calculated separately respective of the accrued and reasonable amounts.

4.5

The customer may only offset such claims that have been found to be uncontested or legally valid.

4.6

The customer only has a right of retention in relation to such claims that are directly related to this contract.

4.7

ela-soft can refuse contractually due services if the customer is in arrears with its payment obligations or if other obligations arising from the contract are not being met or are not being met on time.

 

5. Commercial property rights and copyright / legal defects

5.1

Unless otherwise agreed, ela-soft is only obliged to provide the service free of commercial property rights and copyrights of third parties ("protection rights") in the country of the delivery location. If a third party raises justified claims against the customer on the basis of the infringement of protection rights by software delivered by ela-soft or used in accordance with the contract, ela-soft shall be liable to the customer within the period of time specified in Fig 6.3 as follows:

a)

Ela-soft, at its own expense, shall choose to either obtain a right of use, modify it so that the proprietary right is not infringed, or exchange it. If this is not possible for ela-soft on reasonable terms and conditions, the customer has recourse to statutory rights of withdrawal or reduction.

b)

The duty of ela-soft to pay damages is based on Fig 7.  The aforementioned obligations of ela-soft exist only if the customer informs ela-soft in writing and without delay of the claims asserted by third parties, does not acknowledge an infringement and all defensive measures and settlement negotiations are reserved for ela-soft. If the customer ceases to use the software for reduction of damage or any other important reason, it is obliged to inform the third party concerned that the discontinuation of use does not imply any acknowledgement of an infringement of a protective right.

5.2

Claims of the customer shall be excluded if the customer itself is responsible for the infringement of a protective right.

5.3

Claims of the customer are also excluded if the infringement of a protective right arises from the special requirements of the customer, from an application of the software not foreseen by ela-soft or if it is caused by the fact that the software has been modified by the customer or has been employed with software not provided ela-soft. 

5.4

In the case of infringements of protective rights, the claims of the customer regulated by Fig 5.1 a) and additionally the provisions of Fig 6 apply accordingly.

5.5

In the event of other legal defects, the provisions of Fig 6 shall apply accordingly. Further claims of the customer against ela-soft and its vicarious agents due to a legal defect are excluded.

 

6. Warranty

Ela-soft shall provide a guarantee for the agreed quality. This shall arise from the offer and from the order confirmation. For material defects, ela-soft shall be liable as follows:

6.1

At the discretion of ela-soft, faulty software will be repaired or replaced without charge, provided that the cause of the defect already existed at the time of the transfer of risk. If ela-soft shows the customer other reasonable means by which the effects of the defect might be avoided, then this shall also count as an elimination of the defect.

6.2

Information on the characteristics and application possibilities of the software - even if these are referred to as guarantees - do not represent any form of guarantee in the sense of Paragraphs 443 & 444 of the BGB (German Civil Code), unless said information is designated expressly, and in writing, with reference to the legal regime as such a guarantee.

6.3

Claims to subsequent fulfilment will lapse 12 months from the commencement of the statutory period of limitation. The same applies to withdrawal and reduction. This time limit shall not apply where the law, in accordance with Paragraphs 438 Section 1 and No. 2 and 479 Section 1 BGB, stipulates longer periods, in the case of wilful intent, fraudulent concealment of the defect or in the event of non-compliance with a quality guarantee. The legal provisions regarding the commencement, suspension and recommencement of limitation periods remain unaffected.

6.4

Notification of defects from the customer are to be made immediately and in writing.

6.5

If a notification of defect is wrongly made, ela-soft is entitled to demand re-imbursement for the expenses incurred in accordance with the current respective price list.

6.6

ela-soft is to be ensured the opportunity for subsequent performance within a reasonable period of time, which would allow at least two (2) rework attempts. If ela-soft fails to rectify the defect within this period, a reasonable final deadline must be set. 

6.7

Claims shall not arise in the case of only minor deviation from the agreed quality. Also, no warranty exists in the case of non-reproducible software errors as well as in the case of improper repair work carried out by the customer or a third party.

6.8

In the event of data loss for which ela-soft is responsible, ela-soft shall be liable only for those cost necessitated for the recovery of the data by the customer as proper data backup.

6.9

Compensation claims of the customer exist only under the conditions laid down in Fig 7 and shall lapse, unless liability is due to intent, one year following the breach of duty.

 

7. Claims for damages

7.1

In all cases of contractual and non-contractual liability, ela-soft shall be liable for claims for damages solely in accordance with the following provisions.

7.2

Liability for damages caused by ela-soft or a vicarious agents is excluded. This shall not apply were liability exists as follows:

a)

under the German Product Liability Act

b)

in the case of wilful intent, fraudulent intent or gross negligence

c)

in the event of non-compliance with a guarantee

d)

in the case of culpable injury to life, body or health

e)

due to the culpable infringement of essential contractual duties

7.3

Claims for damages and violation of essential contractual obligations are, however, limited to contract-typical, foreseeable damage, insofar as such is one of the aforementioned cases does not apply.

7.4

A change in the burden of proof to the detriment of the customer is not connected with the above regulations.

 

8. License Usage Audit

8.1

The customer is obligated to allow ela-soft to monitor, on request, and on annual basis, that the software is being employed as defined in the contract. ela-soft can perform the audit itself or can have it performed by a third party, which will have committed to confidentiality. ela-soft shall give a minimum of seven (7) business days’ prior written notice of any such audit. The audit can be performed in the premises of the customer during their regular hours of business.

8.2

Should the audit reveal any non-contractual use of the software by the customer, ela-soft is entitled to invoice the customer for a flat-rate compensation to the amount of the licence fees arising, according to the current price list, for the further use. Furthermore, the customer shall bear the costs of the audit insofar as these are reasonable. ela-soft reserves the right to claim higher damages against evidence.

 

9. Final Provisions

9.1

In the event of legal ineffectiveness of individual provisions of these terms and conditions and the further agreement between ela-soft and the customer, the remaining provisions shall remain binding. Gaps in the contract are to be completed in accordance with the commercial objective of the agreement.

9.2

No verbal side agreements have been made. The terms and conditions can only be amended or revoked in writing. This also applies to the written form requirement.

9.3

The exclusive place of jurisdiction for all disputes arising from, or in connection with, the contract is Berlin. German law applies exclusively with the exclusion (excluding the Conventions on Contracts for the International Sale of Goods and international private law).