General Licensing, Sales, Delivery, and Payment conditions of VIOSO GmbH
As of: August 2008
I. General
1. The contractual conditions listed below apply for all sales, exchange, and similar contracts, which are concluded with the consumer (purchaser) of software and services of VIOSO GmbH (VIOSO). Purchaser’s conditions which deviate are binding for us only so far as we have expressly acknowledged them in writing or in so far as they correspond to mandatory law.
II. Conclusion of the Contract
1. Written offers by VIOSO are subject to change with respect to price, delivery date and other content. The sending of price lists, catalogs, prospects, etc. do not obligate VIOSO to make delivery. Spoken information given by VIOSO are without guaranty.
2. Orders will be considered as accepted, if they are confirmed in writing or have been filled. If no written confirmation is made, then the invoice will be considered as confirmation of the order. Telephone orders are only accepted by VIOSO at the purchaser’s risk.
3. Immaterial changes or deviations are reserved without prior notification, in particular such which do not negatively affect the usability. In case of errors in catalogs, price lists, prospects, offers, in the order entry, in invoices and other declarations VIOSO is entitled to undertake the correction and where applicable subsequent improvements and / or the issuance of a credit without prior notification, so far as this is reasonable for the purchaser.
III. Delivery of the Software
1. The information as to delivery times is agreed upon as approximate. VIOSO is entitled to make partial deliveries.
2. VIOSO endeavors to adhere to stated delivery deadlines, however information concerning delivery deadlines is subject to change, unless it is not expressly designated in writing as binding. In case of non-adherence to a delivery deadline which is designated as binding the purchaser can withdraw from the contract under the provisions of § 326 of the German Civil Code.
3. Force majeure and special occurrences, which could place a problem-free completion of an order into question as well as non-culpable impossibilities on the part of VIOSO or their suppliers, in particular traffic and operational interruptions entitle VIOSO to withdraw from the contract either completely or in part or to defer the delivery, without the purchaser having claims as a result. This applies also, if the occurrence named happens at a time when VIOSO is in default.
IV. Prices
1. All prices and costs are in addition to the legal value added tax so far as not otherwise indicated. The prices given in offers apply for the standard edition of the VIOSO programs described. Changes or additions at the customer’s request will be additionally charged.
V. Claim and Guaranty
1. VIOSO guarantees the purchaser of software on media, that at the time of the delivery of the data media, on which the software was stored, is readable without error. If this is not the case, the licensee will receive a replacement within 12 months after the initial delivery.
2. VIOSO provides guaranty for the quality of the software delivered by us, in particular for the warranted features and for the freedom from defects in accordance with the licensing agreement (IX)..
3. The guaranty period is 6 months after the date of the invoice for the software delivered. The guaranty states, that VIOSO can at their discretion either service the delivered software, take it back for credit or deliver new software. A claim for change or reduction only exists when VIOSO cannot correct the defect. The guaranty is void if the item delivered is changed by another party. The guaranty is void furthermore, if legal or installation or operational provisions from VIOSO are not followed and respectively if system requirements of the target system do not satisfy the requirements of the VIOSO software.
VI. Reservation of Proprietary Rights and Attachment
1. The software is delivered under reservation of proprietary rights. It remains property of VIOSO until the complete satisfaction of all accounts payable, even those which arise in the future, from the business relationship. This also applies, if the purchase price for the delivery of specific goods designated by the purchaser is paid. Drafts or checks do not satisfy the claims of VIOSO until their redemption.
VII. Payments and Payment Conditions
1. VIOSO-invoices are payable under the payment conditions noted on the invoices.
2. If the purchaser is in default of payments due, then he incurs a default interest in the amount of 12% annually.
3. . If the economic situation of the purchaser worsens after the placement of the order or if it turns out, on the basis of information acquired, that the creditworthiness of the purchaser raises objections, then VIOSO is entitled to demand payment in advance or security deposit. If the purchaser is in default with a payment, then all receivables from VIOSO are due for payment in cash immediately without regard to the granted due date; this also applies, if a draft or checks were received. In each of these cases VIOSO is entitled to refuse deliveries which have not yet been completed or to make them conditional upon a prepayment or provision of a security deposit, to set an appropriate additional period of time and, upon unsuccessful passage of this deadline to withdraw from the contract or to demand compensation for damages due to non-fulfillment.
4. Sales representatives (representatives) of VIOSO are authorized to accept payments only with special authorization.
VIII. Licensing Conditions for Software
1. The purchaser becomes a licensee of the software through the acquisition of VIOSO software. Thereby the contractual conditions listed under IX apply for the purchaser:
IX. Licensing Agreement
1. The object of the contract is the computer program sent / stored on media, as well as the operating instructions if present.
2. Based on the state of technology, it is not possible, to produce computer software in such a way that it works in all applications and combinations without error. The object of this contract is then a software, which is fundamentally usable in the sense of the program description and operating instructions.
3. VIOSO guarantees the purchaser the simple and personal right (license), to use the delivered software on an individual computer. Additional right require separate agreements. A transfer of the software to third parties, renting or loaning or a free transfer is expressly prohibited (excepting DEMO / Test Versions and Freeware).
4. It is expressly prohibited to change, translate, reconvert, decompile or to disassemble, or use the delivered software, regardless of which type, as the basis of one’s own software/ one’s own publication.
5. The software is protected by copyright. VIOSO herewith makes notice that the licensee is liable for all damages which are incurred by VIOSO due to copyright violations. Any violation of copyright which becomes known will lead immediately to legal action.
6. VIOSO is entitled, to perform software maintenance at its discretion. An exchange or an update of the software upon request by the licensee will take place only in exchange for a service fee determined by VIOSO.
7. VIOSO accepts no liability on the basis of grounds named under IX 2. for the freedom from defects of the software and any possible damages resulting from this. In particular VIOSO accepts no guaranty, that the software satisfies the requirements and purposes of the licensee or will work together with any programs and hardware combinations selected by him. VIOSO is not liable for indirect damages or subsequent damages, in particular not for loss of income. Responsibility for the correct selection and the consequences of the application, as well as the results sought thereby are the sole responsibility of the licensee.
X. Place of Fulfillment and Jurisdiction
1. The business location of VIOSO is the place of fulfillment and location of jurisdiction. VIOSO is nevertheless entitled, also to call upon another responsible court in and outside of the Federal Republic of Germany, in particular if the purchaser has his location or business location in a foreign country.
2. The law of the Federal Republic of Germany apply exclusively, even for transactions with foreign firms or deliveries to foreign countries.
XI. Closing Provision
1. The ineffectualness or invalidity of one of the above conditions does not affect the validity of the remaining conditions. If one of the conditions of these contractual conditions is invalid, then this one must be replaced by a valid condition, which best approaches the economic purpose of the invalid condition.
2. Alterations or amendments to these conditions require the express written confirmation by VIOSO.