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| Conditions of Use |
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Terms and Conditions of WETO AG (hereinafter WETO)
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§1
Area of applicability |
1.
Weto shall conclude contracts concerning licensing, delivery, and
maintenance of software products and the provision of additional
services exclusively on the basis of these terms and conditions.
2. These terms and conditions shall also serve as the basis for all
future services and deliveries, even if inclusion of these terms and
conditions is not expressly agreed therein.
Conflicting terms and conditions of customers are herewith expressly
contradicted. Customer’s conflicting terms and conditions shall be
considered as non-binding unless expressly recognized as binding in
writing by Weto. |
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§ 2
Brochure information / Autonomy of specific contracts |
1.
The information in brochures, catalogues, applications, price lists,
advertising material, directories, or the information, drawings,
illustrations, technical data, weights, measures, and performance
descriptions in the documents associated with the quotation are only
descriptions and contain no assurance of characteristics or guarantees
of condition and durability. Assurance of characteristics and
acceptance of a guarantee of condition and durability shall require an
express written agreement. The same shall also apply to price
information, familiarization times, or information concerning release
of supplements or upgrades.
2. Independent of the time and the form of the agreement, agreements
concerning the rights of the customer to the software (license
contract), the maintenance and service of the software (maintenance
contract), familiarization with the use of the licensed software, and
other services, shall, in each case, be legally independent and
separate contracts concerning mutual rights and obligations, legal
consequences, and guarantees. |
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§ 3
Software license |
1.
Weto grants the customer the exclusive and personal right, transferable
only with Weto’s agreement, to use the licensed software that is
described in more detail in the license contracts under the following
conditions.
2. Licensed software shall be understood to mean compiler programs,
program generators, test aids, service programs, low-level software,
and user software. Weto shall supply application documentation, with
the licensed software appropriate for operation. The licensed software
and the application documentation shall be uniformly designated below
as programs.
3. The adaptations or upgrades of the programs in accordance with
company-specific needs and requirements of the customer shall not be
considered as object of the software license. These adaptations or
upgrades shall be executed on the base of a contract that will be
concluded separately, in which the specific type, scope, and content of
the adaptations or upgrades to be made to the programs will be
regulated.
4. The programs shall be provided to the customer in object code.
Provision of technical program documentation, particularly of source
code, is not be required and is not an object of this contract. |
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§ 4
Delivery and delivery delay |
1.
The programs shall be provided to the customer on suitable data media.
The customer shall properly install and start up the programs at the
installation site using trained personnel, as described in the
application documentation. Weto shall be available per telephone to
respond to questions and to provide information.
2.
The transfer of the programs to the customer signifies transfer of the
risk to the customer. Timely acceptance is a primary contractual
obligation on the part of the customer.
3. Partial deliveries shall be permitted and can be invoiced
separately, unless such partial deliveries are economically unusable.
4. Compliance with an anticipated delivery date as specified by Weto
presupposes clarification of all technical questions from the customer.
5. Weto shall be in arrears if the anticipated, and thus non-binding
delivery date, has been culpably exceeded by more than 8 weeks, and the
customer subsequently requests Weto to make delivery within an
appropriate period. If this situation arises, the customer shall have
the right, if the delay continues, to withdraw from the contract, by
notifying Weto in writing. Moreover, the customer shall only be
authorized to claim for damages due to delay in delivery to the amount
of the foreseeable damage, if said damage is based on gross negligence
or wilful violation of an obligation on the part of Weto, its vicarious
agents or its legal representatives; in all other respects liability
for damage shall be limited to the amount of remuneration owed by the
customer to Weto for the respective programs or parts thereof that are
affected by the delay in delivery. The disclaimer of liability cited
above or the limitation of liability shall not apply to damages due to
culpable risk to life, body, or health based on a negligent violation
of its obligations on the part of Weto or an intentional or negligent
violation of their obligations on the part of a legal representative or
vicarious agent of Weto.
6. For rental contracts or licence agreement as well as maintenance and
service contracts, the delivery date shall also be the date the
contract takes effect. |
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§ 5
Extent of use |
1.
The customer shall be authorized to use programs licensed by Weto,
including the program documentation at the installation site designated
in the respective license agreement for the declared performance limit,
LPAR, or computer unit. In the event that use of the licensed programs,
including program documentation, deviates from the extent of use
described above, a separate license fee shall be charged by Weto based
on the new license contract. The customer shall not be authorized to
grant sublicenses, to use the programs at other installation sites or
for other operating systems, to duplicate the programs, or to
distribute documentation to third parties. Third parties are hereby
understood to include affiliated group companies, branch offices at
other locations, etc. Such extended utilization, particularly multiple
use, shall require a separate written agreement with Weto.
2. The customer shall not use any type of process to restore the source
code or parts thereof from the binary software, or to obtain knowledge
about constitution or creation of the software, or of hardware or
firmware implementations of the software. A right to inspect documents
of Weto in this regard does not exist.
3. The licensed programs shall not be copied or duplicated, unless such
copying or duplication shall be necessary for the contractual use or
for archiving and backup purposes. Customer shall destroy provided
documentation, including any duplicates made, when no longer using the
software and without a specific request, unless the customer is legally
required to keep the documentation.
4. The right of use granted for one specific, in organizational, legal,
and actual terms separable computer unit shall also apply provisionally
for use on a different computer unit, if such other identified use is
necessary due to a fault induced failure of the specified computer
unit. |
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§6 Remuneration/payment terms/payment in arrears |
1.
The remuneration to be paid is based on the respective license
contracts, maintenance contracts, contracts for work, service
contracts, or other contracts.
2. Payments shall be due without deductions upon receipt of invoice,
and can only be discharged to Weto directly or to a bank account
specified by Weto.
3. If the parties agree to regular recurring monthly payments, the
monthly payment shall be due on the first of each month in advance
payable to a bank account specified by Weto.
4. If the customer is in arrears with payment then Weto shall be
authorized to demand interest for late payments to the amount of 5%
above the respective base interest rate, but at least 8% p.a. If Weto
substantiates a charge with a higher interest rate, or if the customer
substantiates a lesser charge, then the interest for late payments
shall be assessed at a higher or lower rate accordingly.
5. Payments via bill of exchange or check shall be executed subject to
being honoured. Fulfilment shall occur only on the date that funds are
available to Weto to the amount of the cashing sum minus the expenses
incurred.
6. The customer shall only have the right to set-off if the customer’s
counter-claims have become final and conclusive, are uncontested, or
are acknowledged by WETO. The customer can only assert a right to
withhold payment if such a right derives from the contract concluded by
the parties.
7. The program upgrades, i.e. only the object code from Weto, shall
remain the property of the party offering the contract for the first
three years after conclusion of the software maintenance and service
contract, and must be returned to the party offering the contract if
the software maintenance and service contract is cancelled within this
period. After a contact term of 3 years the program upgrades, i.e. only
the object code of Weto, shall become the property of the customer. The
copyrights, technical documentation, source code, and all other rights
shall always remain the property of Weto.
8. In all other aspects the programs, i.e. only the object code of
Weto, including dongle, shall remain the property of Weto until payment
is made in full, and must be returned to Weto immediately if payment is
not made in full. The copyrights, technical documentation, source code,
and all other rights shall always remain the property of Weto. |
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§ 7
Program Protection |
< span>1.
Weto reserves the property and all other rights, particularly the
copyrights to the programs, without prejudice to the rights of use
granted in this contract. This shall apply regardless of the change to
the programs or connection with other programs made by the customer or
third parties. § 6 paragraph 7 shall remain hereby unaffected.
2.
In the event of third-party intervention to the programs, the customer
shall refer to the property right of Weto and shall inform Weto without
delay in writing. The customer shall bear all costs of an intervention
procedure or other defensive measures in conjunction with such
third-party intervention.
3. The customer expressly acknowledges the protectability of the
programs in accordance with copyright, and acknowledges that the
programs contain confidential information and business secrets of Weto
to which the customer only has the rights granted in this contract.
4. The customer shall be required to maintain the proprietary notes,
such as copyright notices and other reservations of rights, unchanged
as well as to transfer such notices and legal reservations in unchanged
form in all complete or partial copies of the programs produced by the
customer.
5. The customer shall be prohibited from creating the customer’s own
source code for the licensed programs, or from compiling or translating
the programs in any other computer language or natural language, or
from attempting to do this, or from providing assistance for such an
action.
6. The customer shall take suitable measures to fulfil their
obligations arising from this license contract relative to the use,
copying, modification, and protection of the programs by issuing
appropriate instructions to its employees, or to other persons to whom
access to the programs or to any documents that describe or reveal
these programs is granted.
7. The customer shall treat with confidentiality all information about
the programs as well as the methods and processes used. The customer
shall undertake to protect the licensed programs from the knowledge or
use of third parties, and not to directly or indirectly use any parts
or essential processes or ideas from the licensed programs for creation
of its own software. The customer may change the programs in readable
form or connect the programs with other software exclusively for
operation on its own data processing units and machines. No changes
shall be made to the programs without the express prior written consent
of Weto. Even as a component of such adaptations the programs shall
remain subject to these terms and conditions.
8. The customer shall neither grant sublicenses nor forward the
software to third parties, not even by making the customer's own system
available to third parties, or when external data is processed or
stored for third parties. Exceptions to this provision are employees
and persons commissioned by the customer, as well as third partiers
who, by signing a separate agreement with Weto, have acknowledged the
provisions of this license contract, including these terms and
conditions, as binding for themselves, and their employees and
commissioned persons, to the extent required for exercise of the
transferred right of use.
9. Weto shall indemnify the customer against all claims arising from a
violation of a commercial property right or copyright that is derived
from programs used contractually and will assume legally imposed costs
and damage compensation costs if the customer has notified Weto of such
claims without delay, and if all defensive measures and settlement
negotiations are reserved for Weto. If such claims have been
established legally or are expected to become legally binding, Weto
shall be authorized to change or replace the licensed programs at
Weto's expense. Should this measure or the effecting of a right of use
not be possible with reasonable expense, then each of the contracting
parties shall have the right to cancel the affected portion of the
programs without notice. In this case the provisions in § 9 paragraph 9
shall apply. 9. |
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§ 8
Program maintenance |
1. Weto shall exclusively maintain the latest released program version of the programs specified in the license contracts.
2. Maintenance shall include the ongoing improvement of the programs in
their organizational structure and program execution, as well as
provision of the latest version of the documentation.
Improved program versions shall be developed by Weto as needed at
specified time intervals and offered to the customer. Weto shall
inform the customer periodically of the available program version.
3. Changes made to specific program commands shall be communicated to
the customer orally or in writing if the customer is capable of
executing corresponding program changes on his own.
4. The customer shall accept a new program version unless said
acceptance is associated with unreasonable disadvantages. An
unreasonable disadvantage shall apply for example if: An implementation
of the user software is not technically possible.
5. If the customer does not accept a new program version, although it
has been offered to him, then the customer shall be responsible for
possible added expense incurred by Weto correcting an error or adapting
a program at the customer’s request. |
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§ 9
Warranty |
1.
The contracting parties agree that it is not possible to develop
programs so that they are free of error under all application
conditions.
2. Weto shall guarantee that the programs fulfil the agreed functions
and that they are suitable for the customary use, or the use as
specified in the respective contract between the parties. The
prerequisite in this regard shall be the contractually specified use on
the part of the customer. Weto does not guarantee that the programs
meet the special requirements of the customer.
3. Weto guarantees that the programs at license begin are free of
third-party copyrights, that revoke or lessen the contractually
specified use.
4. The technical data, specifications and performance descriptions of
the application documentation shall not constitute any assurances or
guarantees, unless they have been expressly confirmed by Weto to
constitute such assurances or guarantees.
5. To maintain the customer’s claims of defects, the customer shall be
obligated, if errors are detected in the programs at license begin, to
reserve his rights in writing in this regard, or to report the defects
to Weto without delay, at the latest however within a period of 8 days
from the date the defect was detected.
6. All customer claims based on defect liability shall be excluded if
the customer or third party is responsible for the defect. Weto’s
liability for claims of defects shall particularly be excluded if the
customer or a third party makes unauthorized changes or extensions to
programs or portions thereof or does not comply with the operating
instructions, the instructions in the application documentation, or
other operating instructions, or if the defect is based in improper
operation by the customer or third party. Moreover the claim for
defects shall particularly be excluded for errors, malfunctions, or
damage that are based on improper use, hardware error, or operating
system error, non-compliance with data backup guidelines, or other
processes that lie outside Weto's sphere of responsibility, or if the
customer denies Weto the possibility of investigating the cause of the
reported error or defect. The same shall apply to the software licensed
for use that is operated on a computer system that does not have the
minimum hardware configuration and software configuration, as specified
in the software product description.
7. If a occurs for which Weto is responsible, Weto shall be authorized
to provide supplementary performance, multiple times if necessary.
Instead of correcting the defect Weto shall be authorized at its sole
discretion to offer the customer the use of a new version of the
program. If the customer does not accept the use of a newer program
version, unless in a situation as defined in § 8 paragraph 4, then Weto
shall not be obliged to correct the defect.
8. Weto offers no warranty whatsoever for external software.
9. If Weto is not prepared or not in a situation to provide subsequent
performance without cause, or particularly if resolution of defect
extends beyond reasonable periods for reasons for which Weto is
responsible or if the supplementary performance fails or is
unacceptable to the customer, the customer shall not be authorized to
correct the defect himself and demand compensation of the necessary
expenses.
10. Unless otherwise agreed below, more extensive customer claims,
particularly claims for damage compensation due to defects - regardless
of the legal grounds - shall be excluded. Consequently Weto shall not
be liable for direct damages that have not occurred to the programs
themselves; in particular Weto shall not be liable for lost profit or
other property damage suffered by customer. Weto shall be liable for
restoring data only if Weto has negligently or intentionally caused the
destruction of said data, and the customer has ensured that this data
can be reconstructed with reasonable effort from data material that is
held ready in machine readable form.
11. The disclaimer of liability cited above shall not apply to damages
due to culpable risk to life, body, or health based on a negligent
violation of its obligations on the part of Weto or an intentional or
negligent violation of their obligations on the part of a legal
representative or vicarious agent of Weto. Moreover, the disclaimer of
liability cited above shall not apply if Weto is strictly liable in the
case of intentional or gross negligence, or in the case of
non-fulfilment of guaranteed conditions. The above disclaimer of
liability shall not apply to other damages caused by Weto’s grossly
negligent violation of an obligation or on an intentional or grossly
negligent violation of an obligation on the part of a legal
representative or vicarious agent of Weto. In the event of liability
for other damage Weto’s indemnity obligation shall be limited to the
remuneration paid by the customer to Weto for the respective programs
or parts thereof. |
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§ 10
Total liability |
1.
Unless otherwise agreed below, all more extensive claims for damage
against Weto, its vicarious agents, if such claims are not conclusively
regulated in these terms and conditions, particularly such claims
arising from a violation of obligations arising from the contractual
obligations, from violation of obligations in contract negotiations,
and unauthorised action, from lost profit, and other property damage,
shall be excluded unless said damage is based on gross negligence or
intentional violation of its obligation on the part of Weto, its
vicarious agents, or its legal representatives. The general exclusion
of liability shall not apply to damage that has been caused by culpable
violation of a primary contractual obligation in a manner that places
the purpose of the contract in jeopardy.
2. Liability for loss of data is excluded expressly.
3. Weto's indemnity obligation shall be limited in each case of
liability to the amount of remuneration paid by the customer to Weto.
4. The disclaimer of liability cited above or the limitation of
liability shall not apply to customer claims in accordance with §§ 1,4
of the German Product Liability Law (Produkthaftungsgesetz ), and for
damages due to risk to life, body, or health based on a negligent
violation of obligations on the part of Weto, or an intentional or
negligent violation of obligations on the part of a legal
representative or vicarious agent of Weto.
5. Planning calculations, roof calculations, and wood calculations.
WETO assumes no guarantee or warranty relative to calculations for
pre-construction plans, roof trusses, timber frame structures,
half-timbered structures, or equivalent items that have been executed
on behalf of the customer. All entries shall be checked by the customer
for correctness prior to project execution. |
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§ 11
License term |
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The license is granted for an unspecified term and can be cancelled by
Weto for a valid cause. A valid cause is present, particularly if |
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- The customer does not fulfil existing or future obligations based on this contract in spite of a written warning from Weto;
- Legal or other official insolvency procedures are initiated against
the assets of the customer, or if the application to open the
insolvency procedure is rejected due to a lack of assets, or if the
insolvency procedure is revoked due to a lack of assets, indeed
regardless of the legal effect of such a decision;
- Measures to enforce execution are initiated or if the customer issues
checks or bills of exchange that are not covered by sufficient funds;
- The customer makes an oath of disclosure, or if the customer or his
legal representative is ordered to be detained to make such an oath;
- The customer declares bankruptcy;
- The customer is in arrears with payments. |
2. Cancellation shall be in written form.
3. When cancellation becomes effective the customer shall be obliged to
return to Weto at no charge, the original as well as all copies and
partial copies of the programs, all changed and processed versions, and
all other documents that contain confidential information from Weto. If
the programs have been recorded on the customer's machine readable data
media, the customer shall be obliged to completely delete the recorded
data and to provide written notification of the deletion to Weto. A
claim to complete or partial reimbursement of the paid remuneration
does not exist. After the license contract is terminated the customer
is also required not disclose any features and details of the
licensed programs as well as any information contained in the documents
to third parties. |
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§ 12
Non-disclosure |
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contracting parties are required to not disclose any information that
is designated as confidential, or due to other circumstances is clearly
recognized as business or trade secrets, that becomes accessible to the
contracting parties in connection with the respective contracts, for an
unspecified term - and neither to record such information, nor to
forward it to third parties, nor to utilize such information in any
manner unless necessary to achieve the purpose of the contract. |
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§ 13
Final provisions |
1.
Weto's rights and obligations arising from the respective contracts can
be transferred to third parties without the consent of the customer. In
this case Weto shall ensure proper fulfilment of all contractual
obligations relative to the customer.
2. Oral agreements and changes or supplements to this contract have not been made.
3. The place of fulfilment for all claims arising from the respective
contracts shall be the competent court in the business location of
Weto.
4. The exclusive place of jurisdiction for all disputes arising from
the respective contracts shall be the competent court in the business
location of Weto, if the customer is a merchant. The same place of
jurisdiction shall apply if the customer does not have a general place
of jurisdiction in Germany, or if the customer transfers his business
location or residence or usual place of residence outside of Germany,
or if customer’s business location or usual place of residence is not
known at the time legal proceedings are instituted.
5. The law of the Federal Republic of Germany shall apply to all legal
relationships between Weto and the customer. The Vienna United Nations
Convention on Contracts for the International Sale of Goods shall not
apply.
6. The customer's rights and obligations arising from the contracts
concluded with Weto can only be transferred and assigned to third
parties with Weto's consent.
7. If the above provisions are not legally effective or non-executable,
or if said provisions should later lose their legal effect or
executability, the validity of the other provisions shall remain
unaffected thereby . In place of the non-effective or
non-executable provisions, or if there are possible loopholes, an
appropriate regulation shall apply that most nearly approaches the
intent of the parties insofar as legally possible, or most nearly
approaches what the parties would have intended if they had considered
the point when concluding the contract or when subsequently including a
provision. |
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