as of July 2016
1. Scope ot Application
1.1 In the absence of a separate agreement, all offers and orders concerning deliveries and services of Axivion GmbH (“Axivion”) shall be based on the present General Terms and Conditions for Deliveries and Services of Axivion (GTC). This applies even in the event that, in the context of ongoing business relations, no express reference is made to these GTC at a later point in time. Terms and conditions of the customer that are contrary to or deviate from the present GTC apply only if Axivion recognizes their applicability expressly in writing.
1.2 These GTC apply only in relation to entrepreneurs within the meaning of § 14 BGB (German Civil Code) and only if the contract relates to the operation of the enterprise, as well as in relation to legal persons under public law and special public funds within the meaning of § 310 para. 1 BGB.
1.3 To the extent referred to in the confirmation of the order by Axivion or in these GTC, further General Terms and Conditions may be applicable in addition to these present GTC, especially the General Terms and Conditions for Software Licenses (GLT) and the General Terms and Conditions for the Maintenance of Software (GMT) of Axivion. Within the limits of their respective scope of application, said General Terms and Conditions shall take precedence over the provisions of these GTC.
1.4 This shall be without prejudice to any rights to which Axivion is entitled pursuant to the statutory provisions or under other agreements and which go beyond the GTC, the GLT and the GMT.
2. Offers, Conclusion of Contract
2.1 All offers submitted by Axivion are subject to confirmation. Orders shall not be deemed accepted until confirmed by Axivion in writing or in text form. The term of the contract begins with the date of the confirmation of the order by Axivion or the date expressly stated in the order of the confirmation by Axivion. Oral collateral agreements must in all cases be confirmed by Axivion in writing in order to be effective.
2.2 Axivion reserves all rights without limitation in respect of all service and product descriptions, drawings, test programs, and other documentation supplied to the customer within the framework of the offer. This documentation may be made available to third parties only with the prior consent of Axivion. All product descriptions and technical data contained in such documentation as well as in brochures, advertisements, and other informative and advertising materials are compiled with due care; they do not, however, constitute guaranties in respect of quality, or other guarantees, unless expressly identified as such.
2.3 Axivion reserves the right to modifications due to technical reasons even after conclusion of the contract, provided that the modifications do not materially affect the agreed functionality of the delivery item or the object of the service.
2.4 Axivion’s silence in response to offers, orders, requests or other declarations by the customer shall be deemed to constitute agreement only if this was previously agreed, in writing.
3. Prices, Terms of Payment
3.1 The prices stated in the offer and in the order confirmation from Axivion are stated exclusive of VAT which shall be added at the statutory rate. Any travel costs and expenses will be billed separately.
3.2 Invoices of Axivion are payable immediately upon receipt, without deduction. If the customer fails to effect payment upon receipt of a reminder that has been issued after the due date, the customer will be in default with payment. Even without the issue of a reminder, the customer will be in default with payment 30 days after the due date and receipt of the invoice. In the event of default, Axivion shall be entitled to default interest in the statutory amount from the beginning of default. Axivion reserves the right to furnish evidence of greater damage caused by delay.
3.3 Should the customer be in default with payment, Axivion is entitled – without prejudice to any other statutory rights – to exercise without prior notice a right of retention over all outstanding deliveries and services or to request advance payment and/or provision of security with respect to all outstanding deliveries and services. The same shall apply in the event that, after accepting the order, Axivion obtains knowledge of facts that give rise to justified doubts about the customer's ability to pay.
3.4 The customer may offset against claims of Axivion only such counterclaims that are undisputed or have been finally determined by a competent Court. The customer is entitled to exercise a retention right only insofar as the counterclaim is based on the same contractual relationship.
4. Passing of Risk, Delivery and Performance Dates
4.1 In the case of deliveries, the risk of accidental destruction and accidental deterioration passes to the customer as soon as the delivery item leaves the warehouse of Axivion; if the delivery item is collected by the customer, the risk passes with the notification of readiness for collection. In the case of Software downloaded by the customer itself via the Internet from the download area made available by Axivion, the risk shall pass to the customer upon completion of the download.
4.2 No. 4.1 also applies if installation of the delivery item at the customer has been agreed upon unless an obligation of delivery or installation in the framework of a contract for work and services (Werkvertrag) is concerned; in this case the risk does not pass to the customer until acceptance of the work. If acceptance is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer upon notification of readiness for collection.
4.3 Unless expressly agreed otherwise, in writing, the indication of deadlines or time periods for the performance of deliveries and services is not binding. Delivery and service periods firmly agreed upon shall begin no earlier than upon receipt of Axivion's confirmation of the order, however not before the timely and proper fulfillment of the customer's cooperation duties, especially not before the provision of the documentation, approvals, or releases to be furnished by the customer and the receipt of the agreed down-payment, if any. Delivery periods and deadlines shall be deemed to have been observed if, at their expiry, the delivery item has left the warehouse or Axivion has notified the customer of the delivery item being ready for collection and/or dispatch, in the case of Software, readiness for download. The foregoing provision does not apply if, according to the contract, acceptance is required or Axivion is obligated to carry out the installation.
4.4 Axivion will endeavor to comply with agreed delivery and service periods. If Axivion is in delay with a delivery or another service, the customer shall be entitled, upon fruitless expiry of an appropriate supplementary period provided to Axivion upon occurrence of delay, to rescind the contract. Rescission requires, however, that Axivion is responsible for the delay. The customer shall be obligated to declare at Axivion's request within a reasonable period of time whether it will rescind the contract after the expiration of this period due to the delay, or whether it will insist upon execution of the delivery or service.
4.5 Axivion shall be released from the duty to perform in the event of operational interruption or breakdown (shortage of materials, strikes, illness of named employees) for which Axivion is not responsible and other events of force majeure, as well as late delivery of supplies to Axivion itself, for the period during which the impediment continues to exist. This shall also apply if these circumstances occur to suppliers of Axivion. To the extent that Axivion is released from the duty to perform, Axivion shall grant back advance performances, if any, made by the customer. Further reaching claims for damages of the customer shall be excluded.
4.6 Partial deliveries and services shall be permissible to a reasonable extent.
5. Copyrights, License Conditions for Software
5.1 The customer shall be obligated to observe such copyrights and other intellectual property rights as exist in respect of the delivered item or the work created in the context of performance, especially rights in respect of computer programs (“Software”).
5.2 Additionally to these GTC, the use of standard Software supplied by Axivion shall be subject to the GLT of Axivion.
6. Retention of Title
6.1 As regards deliveries, Axivion retains title to the items supplied until all claims arising from the business relationship with the customer have been discharged in full, regardless of the cause in law. With respect to current accounts, the title retained is regarded as security for the offset balance of Axivion at any time given.
6.2 In the event of a conduct on the part of the customer that is contrary to the terms of the contract, especially in the event of a delay with payment, an impending cessation of payment, in the event of dissatisfying information about the solvency or financial situation of the customer, in the event of execution or protest of a bill against the customer as well as in the event of a filing for insolvency against the customer’s assets, Axivion shall be entitled to take back the delivered items. The customer is obligated to return the delivered items. Axivion is not required to rescind the contract in order to be able to take back the delivered items and/or assert its retention of title. These acts, as well as the attachment of the delivered items by Axivion, do not constitute a rescission of the contract unless Axivion has expressly declared so in writing. After taking back the delivered goods, Axivion shall be entitled to sell or otherwise dispose of the same. The proceeds from such sale or other disposition, less reasonable costs thereof, shall be credited towards the customer's liabilities.
7. Liability for Defects as to the Quality
7.1 In the case of deliveries (including the supply of Software on a permanent basis), the customer shall carefully examine the delivery item without undue delay upon receipt and complain vis-à-vis Axivion about defects, if any, promptly and in writing, however no later than seven working days upon delivery of the item or – in the case of hidden defects – within seven working days after the defects are discernible. Works must be accepted by the customer without undue delay upon performance; acceptance may not be refused due to insignificant defects.
7.2 In the event of defects of the delivery item that are objected to in a timely manner or defects that the customer has not detected when accepting the works, the customer primarily has, at Axivion's choice, a claim for subsequent performance within an appropriate time period to be set by the customer. Axivion shall decide on the nature of the subsequent performance (rectification of defects or new delivery/performance). The expenses necessary for this purpose, such as wage, material, transport, and travel costs, will be borne by Axivion only to the extent that such expenses are not increased due to the fact that the delivery item or the object of the works has subsequently been brought to a place other than the agreed place of delivery or performance, unless such relocation is in accordance with the agreed use of the respective delivery item or object of the respective works. If a complaint is made without justification, Axivion shall be entitled to demand reimbursement of any costs incurred by Axivion in connection with the complaint, unless the customer is not responsible for the unjustified complaint.
7.3 As far as Axivion does not succeed in remedying the defect pursuant to Section 7.2 at the second attempt, the customer is entitled, at its own choice and without prejudice to possible claims for damages or for reimbursement of expenses according to no. 10 below, to demand a reduction of the agreed remuneration for the delivery or service concerned (Minderung) or – if the violation of duty on the part of Axivion is not only insignificant – to rescind the contract.
7.4 Claims of the customer based on defects do not exist to the extent that a defect is based on the delivery item or object of the works having been modified by the customer without authorization, especially through the installation of alien parts or, in the case of Software, through subsequent programming or reprogramming not authorized or carried out by Axivion.
7.5 Axivion shall not assume any guarantee, in particular it shall not assume any guarantees as to quality or durability, unless expressly agreed otherwise, in writing, in individual cases.
7.6 The statute of limitations for customer claims based on defects is one year from delivery (in the case of deliveries) or, as the case may be, from acceptance (in the case of performance of work). The restriction of the statute of limitation to one year shall also apply to claims in tort, based on a defect in the item supplied or the service rendered. The restriction of the statute of limitations to one year shall not apply to Axivion’s unlimited liability for damage caused by the breach of a guarantee or based on damage to life, limb or health, for willful misconduct or gross negligence and for mandatory product liability, or if Axivion has explicitly assumed a procurement risk.
8. Supplementary Provisions for the Licensing and Programming of Software
8.1 The object of the agreement is Software generally corresponding to the information contained in the respective program description. Subject to a possible express guarantee given by Axivion, the information contained in the program description and the program documentation shall not constitute guarantees as to quality within the meaning of §§ 443 and 639 BGB (Beschaffenheitsgarantie).
8.2 A Software defect is deemed to exist if the Software does not fulfill the functions set forth in the program description, if it furnishes results deviating from the description in the program description, interrupts its run in an uncontrolled manner, or otherwise fails to work according to its functions so that the use of the Software is prevented or considerably impaired. Imperfections of the Software that do not frustrate or considerably impair the purpose of its use are not covered by the warranty obligation.
8.3 Axivion does not warrant for defects of the Software
that have been caused by faulty application on the part of the customer and that could have been prevented in the event of careful consultation of the program documentation; this applies also in the event of non-existent or insufficient backup measures;
due to virus infestation or other external influences such as fire, accidents, power outage, etc. for which Axivion is not responsible;
that are due to defects in the hardware, the operating system, or other computer programs used by the customer in connection with the Software;
that are due to the Software having been modified by the customer or a third party of its own accord.
8.4 Axivion shall furthermore not assume any warranty or guarantee for components or modules manufactured by other producers (third-party software) and supplied free of charge, in particular Open Source Software that can be used in connection with the Software provided by Axivion.
8.5 In the event that defects within the meaning of no. 8.2 above occur, the customer shall be obligated to furnish Axivion with all information necessary for the error analysis and repair, and to grant Axivion and/or the persons commissioned by Axivion unrestricted access to the Software and the system of the customer on which the Software is installed. Notifications of defects must contain information on the type of defect, the application during which the defect has occurred, as well as the work that has been carried out for purposes of removing the defect. The defect must be described such that it can be reproduced. If Axivion carries out an error analysis at the customer's request and the analysis shows that there is no defect Axivion is obligated to remove, Axivion may invoice the customer for the corresponding expenditure on the basis of the hourly rates of Axivion as applicable from time to time.
8.6 With respect to the purchase of Software (permanent licenses), the warranty covers only such defects as exist already at the delivery of the Software. With respect to the rental of Software (licenses for a definite period of time), the liability without fault for damages based on initial defects according to § 536 a BGB is excluded.
9. Third-Party Rights
9.1 Axivion warrants within the limits of the following provisions that the items delivered or the works performed by Axivion do not infringe any third-party rights that prevent the customer's use of such items or work results as agreed.
9.2 In the event that such rights are asserted by third parties, the customer shall inform Axivion without undue delay of the assertion of such third-party rights and grant Axivion any and all powers and authorities necessary for purposes of defending the customer against the asserted rights of third parties.
9.3 In the event of an infringement of third-party rights by the Software, Axivion will be entitled, at its choice,
9.4 To the extent that Axivion also fails at the second attempt to take the measures according to no. 9.3 above within a reasonable period of time to be fixed by the customer, the customer may at its choice, without prejudice to possible claims for damages or for reimbursement of expenses according to no. 10 below, demand a reduction of the agreed remuneration for the delivery or work concerned (Minderung) or – if the restrictions originating from the third party rights are significant – to rescind the contract (in the case of Software purchase permanent license) or to terminate the contract (in the case of Software rental temporary license).
9.5 With regard to the statute of limitation for claims based on defects in title in the case of Software purchase (permanent license), no. 7.6 above shall apply correspondingly.
10. Liability for Damages and Reimbursement of Expenses
10.1 Axivion shall be liable within the limits of the statutory provisions if the customer asserts claims for damages or for reimbursement of expenses that are based on willful misconduct, gross negligence or non-compliance with written guarantees (including the assumption of a procurement risk), as well as in the case of a violation of life, body, or health.
10.2 In the case of simple negligence, Axivion shall be liable only for the breach of material contractual duties. Material contractual duties are such duties that arise from the nature of the contract and which are of particular importance to the attainment of the contractual purpose. In the case of the breach of material contractual duties through simple negligence, Axivion’s liability shall be limited to foreseeable, typical damage. In this case, the statute of legitimation for claims for damages and for reimbursement of expenses shall be twelve months. The provisions of no. 7.6 shall remain unaffected.
10.3 In the case of data loss, Axivion shall be liable for no more than the expense accruing for the reconstruction of data with proper data storage by the customer.
10.4 Any further liability for damages or for reimbursement of expenses beyond the scope provided for in these GTC shall be excluded, regardless of the legal nature of the asserted claim. The imperative provisions of the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
10.5 To the extent that liability on the part of Axivion is excluded according to these GTC, this shall likewise apply to the liability of the representatives of Axivion as well as the persons employed for the fulfillment of its obligations and its vicarious agents, especially staff members.
11. Protection of Confidential Information
11.1 The parties undertake to maintain strict confidentiality with respect to all information pertaining to the other party to which they become privy in connection with the performance of the contract and which is designated confidential or evidently constitutes business or trade secrets based on the circumstances and – unless necessary for the attainment of the contractual purpose – neither to record, share or otherwise use such information. The confidentiality obligation shall last for the duration of five years commencing with knowledge, but no later than with the last delivery or provision of the last service.
11.2 The confidentiality obligation shall cease to apply if the information was demonstrably known to the receiving party prior to commencement of the contractual relationship, was generally known or publicly accessible or becomes generally known or publicly accessible through no fault on the part of the receiving party. The receiving party shall bear the burden of proof.
11.3 The parties shall allow employees, representatives and other agents access to such information only insofar as this is necessary for the purposes of the contract in each case, and shall ensure by way of appropriate contractual agreements that such personsare also required to maintain strict confidentiality.
12. Cross-border Deliveries, Export Control Obligations
12.1 In the case of cross-border deliveries, the customer must in good time submit to the competent authorities all declarations and take all actions necessary for the export from Germany and import into the destination state, in particular to procure the documentation required for customs clearance and to comply with the requirements of any export controls or other restrictions on marketability. Upon request of Axivion, the customer has to furnish an end-use certificate (Endverbleibserklärung) that complies with the requirements of the applicable regulations in each case.
12.2 Cross-border deliveries are subject to the requirement that the fulfillment is not impeded by any hindrances based on national or international provisions, in particular export control regulations, as well as embargos or other sanctions.
12.3 Delays beyond the control of Axivion based on export controls shall render any agreed delivery or service periods invalid.
13. Mentioning as Reference Customer
13.1 Axivion shall be entitled to mention the customer vis-à-vis other customers and publicly (particularly on the internet and in brochures) as reference customer and to advertise with this statement.
13.2 The customer may object being mentioned by Axivion at any time by written notice to Axivion.
14. Applicable Law, Place of Performance, and Place of Jurisdiction
14.1 The legal relations between Axivion and its customers shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of the provision of Private International Law and the United Nations Convention on Contracts for the International Sale of Goods.
14.2 The exclusive place of performance for both parties to the contract shall be Stuttgart/Germany. The exclusive place of jurisdiction is also Stuttgart/Germany. However, Axivion shall be entitled to sue the customer also at its general place of jurisdiction.
15. Final clause
15.1 If certain provisions of these GTC and/or the respective contract are invalid or inexecutable, or if these GTC or the contract shows a gap, the effectiveness of the other provisions of these GTC and the whole contract remains unaffected. This does not apply if the adherence to the contract would be an undue hardship for one contracting party.
15.2 The contracting parties are obligated to replace the invalid or inexecutable provision by a valid and/or executable provision which comes as close as possible to the invalid or inexecutable provision in terms of its commercial meaning.
as of July 2016
1. Object of the License
1.1 The object of the license shall be the software developed and produced by Axivion GmbH (“Axivion”), plus the pertinent user documentation (program documentation), supplied to the customer on the basis of the General Terms and Conditions for Deliveries and Services (GTC) of Axivion. The exact designation of the supplied Software is stated on Axivion's confirmation of the order (hereinafter the “Software”). The Software and the program documentation are available in English only.
1.2 Unless otherwise provided in the confirmation of the order, the customer will receive both the Software in object code format for installation by the customer on the customer's system, as well as the documentation as a PDF for online download.
1.3 The Software and the program documentation supplied with the same are protected by copyright. Unless otherwise stated in the Software, the program description and/or the program documentation of Axivion, in relation to the customer, all rights in the Software shall be owned exclusively by Axivion. With respect to components or modules from other producers (third-party software) supplied with the Software, in particular Open Source Software, the applicable license terms to which reference is made in the Software, the program description and/or the program documentation of Axivion shall apply.
1.4 Pursuant to the order confirmation from Axivion, the customer shall be granted a non-exclusive right to use the Software and the program documentation, which right can be permanent or limited in time (see no. 3.3 and 3.4, below), and which is non-transferable – except in the cases stipulated in no. 2.6 of these General Terms and Conditions for Software Licenses (GLT).
1.5 The customer shall not be entitled to claim disclosure of the source codes and the development documentation for the Software.
2. Scope of the License
2.1 The license entitles the customer to use the Software for operational purposes of the unit specified in the order confirmation from Axivion (“Site”) and with the maximum number of technical staff working at the Site (“Technical Team Members”), whereby the customer is permitted to install an unlimited number of copies of the Software identified with the respective electronic key of the Site (see no. 2.5 below) (“Site License”). Technical staff are all Software architects, developers and testers involved in Software projects that are analyzed using the Axivion Software. If the number of Technical Team Members of a Site exceeds the maximum number indicated in the confirmation of the order, the customer shall be obliged to purchase an equivalent extension of the license.
Within the meaning of this provision, use shall mean the loading, displaying, running, transferring, and storing of the Software for purposes of its execution and data processing.
2.2 The customer is entitled to make a backup copy of the Software on a separate data storage media, which copy must be identified with a copy of the original label (including the copyright reference). The backup copy may be used only in the event of impairment or loss of the copy of the Software originally delivered via on-line download or, if applicable, the data storage media supplied by Axivion, or of the copies installed on the authorized computers (see no. 2.1 above). With regard to the use of the backup copy, the customer is likewise subject to these GLT. Additionally, the customer is not entitled to make more or other copies of the Software or the program documentation, or any parts thereof, than stipulated in no. 2.1 and to install the same on its systems without the consent of Axivion.
2.3 Without the consent of Axivion, the customer shall not be entitled to adjust, modify, or otherwise amend the Software, to connect the Software to other programs in a manner other than via the interfaces provided for this purpose, to decompile it to another display format, to remove, circumvent, or modify copy protection mechanisms, elements of the program serving a digital rights management (DRM), security codes, if any, or features serving the identification of the Software, including the electronic key (see no. 2.5 below), or to remove information, as contained in the Software and program documentation, about the authorship, copyrights, or other property rights of Axivion. The provisions of §§ 69 d para. 3 and 69 e UrhG (German Copyright Act) shall remain unaffected.
2.4 Axivion is entitled to control compliance with the forgoing provisions, especially the Site License restrictions (see no. 2.1 above), by technical means and, in the case of breach, to use technical means, including but not limited to a program-lock, to ensure the compliance with to these provisions. The customer agrees that the designation of the authorized Site, the maximum number of authorized Technical Team Members at the Site, as well as the trade name and registered office of the customer are each embedded in an electronic key that has to be activated to run an installed copy of the Software. The transfer of a key to unauthorized third parties is not allowed.
2.5 A change of the designated Site which is authorized to use the Software (see no. 2.1 above) during the term of the license is possible. In the case of a new Site, it shall not have more Technical Team Members (see no. 2.1 above) than indicated as maximum number in the confirmation of the order by Axivion for the previous Site; if necessary, the customer shall purchase an extension of the license. The customer must address its requested change to Axivion, in text form. Axivion then generates a new electronic key with changed data and supplies that key to the customer. The customer is obligated to activate the changed key instead of the previous key.
2.6 In the case of a license granted on a permanent basis (Software purchase, see no. 3.3), the customer is entitled to transfer the Software in its entirety, together with the license under these GLT, to a subsequent purchaser, provided the customer does not retain any copies of the Software and the relevant program documentation – or any parts thereof – and refrains from any and all further use of the Software. In the case of a Site License, the right to transfer is limited to the transfer of the entire Site License to a single subsequent purchaser; the division and transfer of parts of the Site License to one or more subsequent purchasers is not permitted. The subsequent purchaser must undertake vis-à-vis Axivion to comply with these GLT, in particular the provisions concerning the scope of the license as set forth in this no. 2. The subsequent purchaser’s right of use therefore commences only upon receipt by Axivion of a copy of the program certificate and these GLT signed by the subsequent purchaser, whereby the name or trading name of the subsequent purchaser and its business address must be stated in full. In addition, the customer must provide Axivion written assurance that it has deleted or otherwise rendered unusable all remaining copies of the Software and the program documentation. The customer shall bear any costs and expenses incurred by Axivion for the transfer of the license.
2.7 In all other respects, the customer is not entitled to use the Software outside the Site stipulated in the order confirmation from Axivion, or for purposes other than operating purposes or to permit persons who are not Technical Team Members to use the Software or to assign the Software, in full or in part, temporarily or permanently, to third parties.
3. Term of the License
3.1 The license shall commence upon provision of the Software to the customer and the first payment of the license fee by the customer.
3.2 The term of the license is shown on the confirmation of the order by Axivion. In this respect, the following possibilities exist:
3.3 To the extent not otherwise provided in the confirmation of the order by Axivion, the license is granted permanently, that is, without limitation in time. In this case, the right to give notice of the ordinary termination of the license is excluded for both parties to the contract. Axivion reserves the right of an extraordinary termination pursuant to no. 3.5 below.
3.4 As regards licenses that are granted for a definite period of time, the initial term of the license shall be as stated in the confirmation of the order by Axivion. During the initial term, neither of the parties can give notice of the ordinary termination of the license. After the expiration of the initial term, the license will be automatically renewed for successive one month periods (in the case of monthly payment of license fees) or one year periods (in the case of annual payment of license fees) unless the license is terminated in writing by one of the parties, subject to one week’s (in the case of monthly payment of license fees) or three months' notice (in the case of annual payment of license fees), with effect at the end of the initial term or any extension period. A one-time fee paid upon supply of the Software will not be reimbursed after the termination of the license.
3.5 Regardless of the duration of the license granted, Axivion shall be entitled to terminate the license with immediate effect in the event of a culpable breach of the provisions of these GLT by the customer, in particular where the scope of the license pursuant to no. 2 is exceeded, unless the breach and the consequences thereof are immaterial. In the event of such a termination, the customer has no claim to the reimbursement of the fees paid for the license. The rights of Axivion to assert claims for damages shall remain unaffected.
3.6 With the end of the license, the customer's right to use the supplied Software expires. The customer must return to Axivion or destroy any and all, if any, of the supplied original data storage media, backup copies, or other copies of the Software stored on separate data storage media, as well as the program documentation provided, and the customer must irreversibly delete all copies as well as installations of the Software and program documentation that are stored on the customer's systems. The customer must affirm the complete return or destruction and/or deletion vis-à-vis Axivion in writing and, upon request by Axivion, must furnish corresponding evidence in a suitable form.
4.1 The fees to be paid for the license depend on the agreed scope of use and shall be as stated in the confirmation of the order by Axivion. Unless otherwise agreed, the fees will be charged as from the date of the first supply of the Software.
4.2 To the extent that the license is granted on a permanent basis (see no. 3.3 above) and in the absence of an agreement to the contrary the remuneration consists in a one-time fee payable upon supply of the Software. This one-time fee comprises the performance of maintenance services according to the General Terms and Conditions for the Maintenance of Software (GMT) of Axivion for the term of one year. After this term, running maintenance fees have to be paid annually in advance for the further provision of maintenance services by Axivion according to the GMT of Axivion. The amount of such fees will be stated in the order of confirmation from Axivion.
4.3 As regards licenses that are granted for a definite period of time (see no. 3.4 above), the fees consist of running monthly or annual license fees and, possibly, a one-time fee payable upon supply of the Software. The running license fees, which include the maintenance of the Software according to Axivion's GMT, must be paid in advance. In the case of annual payment the fee will be billed 30 days in advance of a new contract year. In the case of monthly payment the fee has to be paid by the third working day of each month.
4.4 Axivion shall be entitled to adjust the running license fees according to no. 4.3 above subject to two weeks’ prior notice with effect as of the beginning of a month (in the case of monthly payment of license fees) or subject to three months' prior notice with effect as of the beginning of a contract year (in the case of annual payment of license fees) in order to compensate increases in costs and/or in the context of the general increase in the license fees for the Axivion Software. If the increase – as the case may be, together with an automatic yearly increase of the fees as stated in the confirmation of the order by Axivion altogether – exceeds 3 % of the average of the fees paid within the last 12 month before the increase, the customer is entitled to terminate the license, in writing, subject to one week’s notice with effect as of the beginning of a new month (in the case of monthly payment of license fees) or subject to one month's notice with effect as of the beginning of the new contract year (in the case of annual payment of license fees). Axivion shall notify the customer of these consequences when it announces the increase.
5. Obligation of secrecy and duty to exercise proper care
5.1 The customer shall keep in confidence all information pertaining to the Software beyond the mere outer appearance and the functionality of the Software. This especially applies to information about the methods and procedures employed as well as confidential materials and documents of Axivion concerning the Software.
5.2 The customer is obligated to assure the secrecy vis-à-vis third parties through its employees as well, especially to prevent through appropriate precautions the unauthorized access of third parties to the Software and the program documentation.
5.3 The customer shall keep the copy of the Software supplied via on-line download, delivered original data storage media, if any, as well as possible backup copies in a place that is secured against unauthorized access of third parties. Furthermore, the customer shall insistently point out the adherence to the agreed obligation of secrecy and the duty to exercise proper care.
5.4 The provisions in this no. 5 shall not affect the confidentiality requirements in no. 11 of the General Terms and Conditions of Axivion.
6. Other Provisions
6.1 These GLT shall also apply to later versions (Updates) and extensions (Upgrades) of the Software that Axivion supplies to the customer during the term of the license, unless otherwise agreed at the time of the supply of the respective later version or extension.
6.2 To the extent that these GLT do not contain any separate or deviating provisions, the GTC of Axivion shall additionally apply to the supply and use of the Software.
as of July 2016
1. Object and Scope of Maintenance
1.1 The object of the maintenance services is the software supplied to the customer on the basis of the General Terms and Conditions for Deliveries and Services (GTC) of Axivion GmbH (“Axivion”). The exact designation of the supplied software in respect of which maintenance services according to these General Terms and Conditions for the Maintenance of Software (GMT) are provided (“Software”) is stated in the confirmation of the order by Axivion. With respect to the right to use the Software the General Terms and Conditions for Software Licenses (GLT) of Axivion apply.
1.2 Maintenance of the Software by Axivion includes the following services:
1.3 Axivion shall not provide maintenance services for third-party components or modules (“Third-party Software”) provided with the Software free of charge, in particular Open Source Software that can be used in connection with the Software provided by Axivion.
1.4 These GMT shall also apply to later versions of the Software supplied to the customer by Axivion in the context of the update services according to no. 3.1 below, unless otherwise agreed on the occasion of the supply of the respective later version. After a new version has been released, the maintenance services for the respective previous version will be continued for a period of six months.
2. Support Service
2.1 The Axivion Support Service will be available to the customer for purposes of recording notifications of failures. The Support Service can be reached during service hours on working days (Monday through Friday, not including statutory holidays at the seat of Axivion) from 9:00 a.m. through 6:00 p.m., by e-mail at support@Axivion.com.
2.2 Following notification by the customer to the Support Service, failures occurring during the normal use of the Software will be handled by Axivion's support service. A failure is deemed to exist if the Software does not fulfill the functions indicated in the program description, if it furnishes results deviating from the description in the program description, interrupts its run in an uncontrolled manner, or otherwise fails to work according to its agreed functions so that the normal use of the Software is significantly impaired.
2.3 Axivion undertakes in the context of the Support Service to narrow down the cause of the failure, analyze the failure, and remove it or, to the extent that a removal is not possible with a reasonable expenditure of money and/or time, to maintain the operation of the Software by pointing out a bypass solution.
2.4 Measures of the support service will be carried out during the service hours stated in no. 2.1 above. Measures outside these hours will only be taken on the basis of a separate agreement in the individual case, subject to payment of separate remuneration.
2.5 In the context of its Support Service and within the service hours stipulated in no. 2.1, Axivion offers a response time of 24 hours; this response time is counted from the point in time of the receipt of the detailed notification of the failure according to no. 5.1 below by the hotline service. Response time shall mean the time it takes for a qualified staff member of Axivion's Support Service Center to actively attend to the reported failure and initiate the handling of the failure either by telephone, e-mail, or remote access or, at Axivion’s choice, by carrying out support services on the customer's premises.
3. Update Service
3.1 In the context of the Update Service, Axivion will supply the customer with new program versions of the Software as well as the pertinent program documentation via on-line download or, at Axivion’s choice, on machine-readable data storage media in object code format for installation by the customer.
3.2 The Update Service, in addition to extensions of the Software with improved functions (Updates) also includes new features and modules offered by Axivion as standard for the product concerned (Upgrades).
New Software products offered by Axivion under a different product name are not included as part of the Update Service. Licenses for the use of such new Software products can be purchased by the customer from Axivion against of the corresponding payment fees.
3.3 With regard to the right to use the new program versions of the Software supplied to the customer in the context of the Update Service, the GLT of Axivion shall apply. Axivion's warranty and liability obligations in respect of the new program versions shall be governed by the GTC of Axivion.
4. Delimitation: Services not Included
4.1 An obligation on the part of Axivion to provide maintenance services according to these GMT does not exist:
4.2 Furthermore, the scope of maintenance does not include the installation of the Software and of new program versions supplied in the context of the update service according to no. 3.1 above on the customer's system, the performance of release changes, the programming of required adjustments, if any, as well as the training of staff members of the customer and a general user support on questions arising in connection with the normal use of the program, especially questions concerning the operation and possible applications of the Software. Such services will be rendered by Axivion upon request by the customer subject to separate remuneration on the basis of the GTC of Axivion.
4.3 Additional expenses incurred by Axivion within the framework of the provision of the maintenance services, such as work carried out on-site by Axivion employees that result from the fact that the maintenance services cannot be performed at the originally agreed installation site of the Software shall be borne by the customer.
5. Cooperation Duties of the Customer
5.1 In the context of the notification of the Support Service of failures, the customer shall furnish Axivion with all available failure reports, system logs, log files, interim and test results, as well as any other documentation and information necessary for analyzing and handling the failure. The failure must be described such that it can be reproduced. If Axivion carries out an analysis of a failure at the customer's request and the analysis shows that there is no failure that Axivion is obligated to remove under these GMT, Axivion may invoice the customer for the corresponding expenditure on the basis of the hourly rates of Axivion as applicable from time to time.
5.2 For the provision of the maintenance services, especially in the context of the support service, the customer shall grant Axivion and its staff members free access to the Software as well as to the hardware and operating system of the customer upon which these are installed. Furthermore, the customer shall be obligated to provide Axivion with a suitable infrastructure for remote access to the Software in the event of a failure.
5.3 The employees of the customer authorized to use the Software (see no. 2.1 of the GLT of Axivion) are entitled to contact the Support Service of Axivion directly. Additionally, the customer shall name one staff member working at the place of installation of the Software as the principal contact person who will make all decisions in connection with the performance of the maintenance services or will ensure that such decisions are made without undue delay.
5.4 The customer shall be obligated to carry out data backups at regular intervals in accordance with the special requirements stipulated by Axivion in the applicable product documentation. In the absence of such special requirements, data backups must be made according to the generally acknowledged principles of secure data processing.
6.1 The remuneration for the maintenance services to be rendered according to these GMT shall be as stated in Axivion's offer or order confirmation. Unless otherwise agreed, the maintenance fees will be charged as from the date of the provision of the Software to the customer.
6.2 If the customer is granted a license for the Software on a permanent basis (see no. 3.3 of the GLT of Axivion) the maintenance fees for the first contract year are included in the one-time license fee payable upon supply of the Software, so that no separate invoice for the maintenance fees will be issued for the first year. After this period running maintenance fees for the maintenance of the Software must be paid annually in advance which will be invoiced 30 days in advance of the beginning of a new contract year. Timely payment of the maintenance fees is a prerequisite for the performance of maintenance services in the respective contract year.
6.3 To the extent that the maintenance services are performed in connection with a Software license that has been granted for a definite period of time (see no. 3.4 of the GLT of Axivion), the maintenance fees are included in the running license fees so that no separate invoice for the maintenance fees will be issued. The timely payment of the license fees is the prerequisite for the provision of the maintenance services in the period concerned.
6.4 In the event of extensions of use through the acquisition of further licenses during the term of the Maintenance Agreement, the maintenance fees will increase proportionately. The increased maintenance fees shall be payable from the point in time of commencement of use of the additional licenses.
6.5 As regards permanent Software licenses (see no. 6.2 above) Axivion shall be entitled to reasonably adjust the fees for the maintenance services to be provided according to these GMT subject to three months' prior notice with effect as of the beginning of a new contract year in order to compensate increases in wage costs and other costs. If the increase – as the case may be, together with an automatic yearly increase of the fees as stated in the confirmation of the order by Axivion in total exceeds 3 % of the maintenance fee paid in the last contract year, the customer shall be entitled to terminate the Maintenance Agreement, in writing, subject to one month's notice with effect as of the beginning of the new contract year. Axivion shall notify the customer of this consequence in the notification of the increased maintenance fee.
6.6 With regard to the billing and payment of the maintenance fees, the provisions of the GTC of Axivion apply additionally.
7. Term, Termination
7.1 The obligation of Axivion to provide the maintenance services under this Maintenance Agreement shall commence with the provision of the Software to the customer and the first payment of the license and maintenance fee by the customer.
7.2 If the customer is granted a license for the Software on a permanent basis according to no. 3.3 of the GLT of Axivion, the Maintenance Agreement initially is concluded for the term of one year. Afterwards the Maintenance Agreement renews automatically for a further year, if it is not terminated by one party with three months’ prior written notice with effect as of the end of the initial or any renewal term.
7.3 If the Maintenance Agreement has been terminated by the customer according to the preceding no. 7.2, but the customer at a later date wishes again the performance of maintenance services for the Software by Axivion, Axivion will only start again with the performance of maintenance services if the customer will pay the maintenance fees retroactively for the period of the break.
7.4 If the maintenance services are provided in connection with a license for Axivion Software that is limited in time (see no. 3.4 of the GLT of Axivion), a termination of the Maintenance Agreement by the customer without concurrent termination of the license shall not be possible. The termination of the license shall be governed exclusively by the provisions of the GLT of Axivion.
7.5 The Maintenance Agreement shall end without notice of termination being required if the license granted to the customer for the Software to be maintained ends according to the GLT of Axivion. In this case, Axivion is not obligated to reimburse maintenance fees already paid for periods of time until the termination.
7.6 The right of both parties to terminate the Maintenance Agreement with immediate effect for good cause shall not be affected.
7.7 Notice of termination must be provided in writing.
8. Other Provisions
8.1 Axivion shall be entitled to provide parts of the maintenance services through or with the help of third parties.
8.2 To the extent that these GMT do not contain any special or deviating provisions, the performance of the maintenance services and the legal relation between Axivion and the customer shall additionally be governed by the GTC of Axivion.