§1 Validity of the contractual conditions
(1) The Seller is engaged in the development, manufacture, distribution and sale of software test tools (hereinafter referred to as "Program" or "Program Package") for safety-critical embedded and quality-oriented systems and provides consulting, services and training for test systems.
(2) The Seller offers its services exclusively on the basis of these General Terms and Conditions. These are an integral part of all contracts concluded by the Seller with its contractual partners (hereinafter referred to as "Purchaser") for the services or deliveries offered to it. They shall also apply to all future offers, services or deliveries to the Purchaser, even if they are not separately agreed again.
(3) Any general terms and conditions of the Purchaser are hereby contradicted.
(4) Deviations from these contractual conditions are only effective if the Seller confirms them in writing.
(5) Electronic transmission, in particular by email or by fax, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.
§2 Contract conclusion
(1) Information given in brochures, advertisements, catalogues, on Internet web pages, etc. - with the exception of prices - is non-binding.
(2) A contract is not concluded until it has been confirmed in writing by the Seller or the performance of the service by the Seller has commenced.
(3) Amendments and supplements to the contract shall only be valid if confirmed in writing by the Seller.
§3 Purchase and license agreement
(1) The Purchaser acquires the Program Package and, if included in the offer, a user manual. The Program Package and the user manual are protected by copyright.
§4 Scope of the right of use
(1) The Purchaser acquires the right to use the Program on only one Computer ("Computer" means a virtual machine "Virtual Machine" or a physical machine "Physical Machine" that takes information in digital or similar form and manipulates it for a specific result based on a sequence of instructions) at a time, at whose choice he is free. Use is any permanent or temporary total or partial reproduction of the Program by storing, loading, running or displaying for the purpose of executing the Program and processing data contained in the Program by the computer. The Purchaser is entitled to carry out these usage actions for the purpose of observation and examination as well as for testing the Program. He is not entitled to reproduce the user manual.
(2) In the following, a distinction is made between a single license and a floating license. The delivered license type is to be named by the purchaser by his order when concluding the license agreement. A subsequent change of the Computer may only take place according to § 5 section (5). The license types are differentiated as follows:
a) Single-user license (node locked license): The license is tied to a specific computer. The computer is named by the first use of the license, unless the computer is explicitly named in the license agreement. The program may be installed and used only on the named computer.
b) Network license (floating license): The license is provided by a license server to run the program and the program can be installed on any number of computers within the local network. When an authorized user wants to use the program, the local computer requests the availability of a license from the license server. If a license is available, the license server allows the program to be used. When the program is terminated, the license is then available again for other authorized users within the local network.
(3) The modification or processing of the Program is only permissible if it is required for the intended use, for the connection of the Program with other programs or for error correction. Company names, trademarks, copyright notices and other notices concerning legal reservations contained in the Program may not be changed and are to be adopted in changed or edited versions of the Program.
(4) The reverse translation of the Program code (decompiling) is only permissible under the conditions of the German Law §69e UrhG.
(5) The Purchaser is entitled to make a backup copy of the Program Package if this is necessary to secure future use of the Program. If the Program Package is equipped with a technical copy protection, the Purchaser shall receive a new copy of the same title from the Seller in the event of damage to the delivered Program Package against return of the machine-readable carrier delivered as part of the Program Package.
§5 Passing on of the Program Package
(2) When the Program Package is passed on, the right to use it is transferred to the third party, who is then solely entitled to use the Program Package in accordance with §4 to the exclusion ofthe Purchaser.
(3) In the event that the Program Package is passed on, the Purchaser shall immediately delete or otherwise destroy all copies and partial copies of the Program as well as modified or edited versions and copies and partial copies thereof. This also applies to backup copies.
(4) The above provisions shall also apply if the Purchaser only temporarily leaves the Program Package to the third party. The Purchaser is not entitled to rent out the Program Package or parts thereof.
(5) The installation of the Single User License or the Network Licenses on a Computer or license server other than the one provided for in the License Agreement or during the initial installation, e.g. by scrapping the Computer, is possible, but must be formally requested by the Purchaser and requires the prior written consent of the Seller. For licenses under maintenance, this process is free of charge once per year, for all other cases the current price list of the Seller applies.
§ 6 Other rights
(1) All further rights to use and exploit the Program Package remain reserved. In particular, neither the Purchaser nor subsequent users shall be entitled to use the Program or modified or edited versions thereof simultaneously on more than one computer/virtual machine or to distribute copies of the Program Package in its original version or in modified or edited versions, even if such copies are limited to essential parts of the modified versions. The Purchaser's exploitation rights to his own and to all work results obtained through the use of the Program Package remain unaffected.
§7 Procurement of the Program Package
(1) The Seller sends the Program Packages ordered by the Purchaser on account of the Purchaser to the address indicated by the Purchaser. The dispatch takes place exclusively electronically.
(2) Partial deliveries are permissible and are considered as independent deliveries.
(3) If the Purchaser acquires the Program Package through Electronic Software Delivery (ESD), the Seller provides him with the opportunity to download the purchased Program Package from the Seller's server to his computer.
(1) The Seller guarantees that the Program is usable in accordance with the Program description issued by him and valid at the time of delivery to the customer. A copyright reduction of the usefulness remains out of consideration.
(2) The Seller shall ensure that the Program is properly recorded on a tested data carrier. If, on the other hand, the Purchaser acquires the Program Package by means of ESD, the Seller guarantees the availability of the Program Package on his server for download by the Purchaser.
(3) If a Program Package proves to be defective, the Purchaser can demand the return of the delivered Program Package by the Seller and the procurement of a new Program Package of the same title within a period of 6 months, beginning with the delivery or completion of the download of the Program Package. If this also proves to be defective and if the Seller is unable to remedy the defects within a reasonable period of time, the Purchaser may, at his discretion, demand a reduction in the purchase price or return of the Program Package against reimbursement of the purchase price. §5 sections (2) and (3) shall apply accordingly.
(4) The Seller does not assume any further warranty, in particular not for versions of the Program that have been modified or edited in accordance with §4 section (2), unless it is proven that existing defects are in no way connected with the modifications or edits.
(5) However, the Seller does not guarantee the suitability of the software for the minimum hardware requirements of the customer.
(1) Claims for damages by the Purchaser, in particular arising from breach of contract, tort, producer liability, incorrect advice, positive breach of contract and future culpa in contrahendo are excluded, unless the Seller is liable in the case of intent or gross negligence or the absence of warranted characteristics or in the case of a basis for claim independent of culpability, in particular for product defects under the Product Liability Act.
(2) The exclusion of liability in section (1) does not apply with regard to damages which are based on a violation of essential contractual obligations of the Seller. In this case, the Seller shall only be liable for damages which the Seller had to expect to occur when concluding the contract due to the circumstances known to the Seller at that time.
(1) All net price offers are only valid for industry, trade, commerce, associations and comparable institutions as well as liberal professions.
(2) All prices are quoted exclusive of statutory value added tax or similar charges, unless otherwise stated.
(3) Prices are subject to change without notice and without giving reasons by the Seller, the prices of the Seller valid at the time of the order apply.
(4) If a delivery period of more than 3 months has been agreed, the Seller's prices valid at the time of delivery or provision of the Program Package shall apply.
§11 Retention of title
(1) Until the purchase price claim has been fulfilled and all claims to which the Seller is entitled against the Purchaser due to a breach of the obligation to pay the purchase price, in particular interest on arrears and compensation for damage caused by default, the Seller reserves title to the delivered Program Package (reserved goods).
(2) The Purchaser may not dispose of the reserved goods.
(3) In the event of access by third parties - in particular bailiffs - to the reserved goods, the Purchaser must point out the ownership of the Seller and inform him immediately. Costs and damages shall be borne by the Purchaser.
(4) In the event of breach of contract by the Purchaser, in particular in the event of default in payment for which the Purchaser is responsible, the Seller shall be entitled to take back the reserved goods at his own expense. The taking back as well as the possible seizure of the reserved goods by the Seller does not constitute a withdrawal from the contract, unless the consumer credit law is applicable.
§12 Delay in performance by the Seller
(1) The Seller shall endeavor to meet the agreed delivery date.
(2) If the Seller is in default with the performance incumbent upon him, the Purchaser may, after expiry of a reasonable grace period set by him, demand damages or withdraw from the contract if he has pointed out the rejection of the performance after its fruitless expiry when determining the grace period. The Seller shall only be liable for damages which he had to expect to occur at the time of conclusion of the contract due to the circumstances known to him at that time, unless the Seller is liable due to intent or gross negligence.
(3) The performance period shall be extended by the period of an obstacle to performance for which the Seller is not responsible and which is not within the Seller's sphere of influence, in particular strike, lockout, loss of material, suspension of transport or operation and other cases of force majeure. The beginning and end of such obstacles will be communicated to the Purchaser as soon as possible. If delivery of the Program Package to the Purchaser is delayed by more than one month as a result, the Purchaser and Seller are entitled to withdraw from the contract. The assertion of further rights is excluded in each case. This does not apply in the event of strike or lockout.
§13 Payment of purchase price
(1) The purchase price is to be paid in advance or after invoicing at the choice of the Seller. The Seller reserves the right to exclude certain payment methods in individual cases. Invoices are due for payment within 30 days from the date of invoice without deduction.
(2) The Seller expressly reserves the right to reject cheques or bills of exchange. They shall only be accepted on account of performance. Discount and bill charges shall be borne by the Purchaser and are due immediately.
(3) If the Purchaser is in default of payment, the Seller shall be entitled to charge interest at the rate charged by the commercial banks for open overdraft facilities - but at least 5 percentage points above the base rate of the European Central Bank applicable at the time. The interest is due immediately.
(4) In the event of default in payment on the part of the Purchaser, the Seller is also entitled to demand advance payments for outstanding deliveries. After expiry of a reasonable period of grace set for the Purchaser, the Seller is entitled to withdraw from the contract or to claim damages for non-performance.
(5) The Purchaser shall only be entitled to set-off if his claim is undisputed or has been established as final and absolute.
(6) A right of retention of the Purchaser is excluded as far as it is not based on the same contractual relationship.
(1) This General Terms and Conditions for Products has been drawn up in German and English, whereby the English text has only an explanatory nature. If there are any discrepancies between the contents of the two texts, the German version shall prevail and be legally binding.
(2) German law shall apply to the exclusion of the UN sales law.
(3) Place of jurisdiction for a merchant, a legal entity under public law or a special fund under public law is in Berlin/Germany.