1 Scope of application and conclusion of contract
1.1 The following General Terms and Conditions and the respective valid price list of the software manufacturer shall apply exclusively to all business relations between LECARE GmbH (“software manufacturer”) and its customers. Deviating terms and conditions of the customer shall not apply unless they have been expressly agreed to. A contract is only concluded with the countersignature of the order confirmation by the customer. The content of the contract results from the order confirmation.
1.2 Separate contracts shall be concluded in each case for the creation of software, the provision of training, the maintenance or servicing of software or other services, which shall be independent of each other.
2.1. Subject Matter of Software Contracts; License Terms
2.1.1. The software manufacturer provides the customer with a copy of the purchased software and an accompanying manual in electronic form, which are intended exclusively for the customer’s own use. The software manufacturer remains – subject to section 2.1.3 – the owner of all copyrights, in particular also to records and documents.
2.1.2. Unless otherwise agreed, the installation of the software supplied by the software manufacturer is not part of the contract.
2.1.3. The customer may only use one copy of the software on one computer. If he purchases a multi-user version, he may use the agreed number of copies on different computers in the same network. Use is understood to mean both the storage of the software in a temporary storage medium (RAM) and in a permanent memory (in particular on hard disk, removable disk, USB stick or CD-ROM). The installation of the software on a dedicated network server does not constitute use if its sole purpose is to distribute the software to computers connected to the network.
2.1.4. The customer may neither rent nor lend the license. This also includes the transfer of the licence to another legal entity in office sharing. The transfer of the license is only possible by taking over the entire software contract. The transfer is only effective if the software producer agrees in writing. The software manufacturer will only refuse consent in justified exceptional cases. The customer pays a processing fee to the software manufacturer for the review and decision. In the event of transfer, the customer shall hand over to the purchaser all copies of the software (including all older versions), the operating manual and all associated documents.
2.1.5. The customer may make a copy at his own expense for backup or archival purposes, as a replacement or for troubleshooting. If originals are provided with a copyright notice, he shall also apply this to copies. The customer may not duplicate records or documents.
2.1.6. Subject to § 69 e UrhG, the software supplied by the software manufacturer may not be reverse engineered, decompiled or deassembled.
2.1.7. Cost estimates, drawings and other documents remain the property of the software manufacturer, they may not be made accessible to third parties.
2.2. Maintenance and care
2.2.1 The prerequisite for the provision of maintenance services by the software manufacturer is the conclusion of a corresponding maintenance contract.
2.2.2 Maintenance shall include the services expressly stated in the order confirmation. At a minimum, it consists of the provision of a hotline, automatic delivery of medium and major updates, remote diagnostics and maintenance, and an Internet service through which interim releases are made available.
2.2.3. Maintenance only applies to software produced by the software manufacturer. If the customer sells the software of the software manufacturer, the software manufacturer is no longer obliged to provide maintenance or support. The Software Publisher shall reimburse the Customer for the remaining term only to the extent that the Software Publisher saves expenses or gains profits by using the services elsewhere.
2.2.4. In the event of default in payment by the customer, the software manufacturer may defer further execution of the maintenance or servicing until payment has been made in full and demand advance payment.
2.3. Other services
The software producer performs further services for the customer, as far as they are agreed upon in writing. The customer shall pay for additional services in accordance with the software manufacturer’s current price list for services.
3 Prices and terms of payment, delivery and shipment
3.1. The respective valid price list of the software manufacturer applies. The prices in the price list apply plus the costs incurred for postage, packaging, insurance, travel and the applicable sales tax. The claims of the software manufacturer are due immediately. In the event of default in payment, the customer shall pay interest on arrears at a rate of 8 % above the base rate in accordance with § 247 BGB (German Civil Code).
3.2. Customers may only offset claims against the software producer that are undisputed, disputed but ready for decision or legally established. Rights of retention are excluded unless they are based on the same contractual relationship. The customer may exercise a right of retention only up to the amount of his claim.
3.3 The software manufacturer shall deliver the software within three weeks, unless a different delivery date is specified in the order confirmation. The delivery period begins with the dispatch of the order confirmation. The software producer notes the dispatch on the order confirmation itself.
3.4. The software manufacturer is only bound to the delivery deadline if the customer fulfils his obligations to cooperate. In the event of non-fulfilment of the customer’s obligations to cooperate, the delivery period shall be extended by the time of the disruption, unless the disruption has no influence on the delay. The delivery deadline is met when the software manufacturer has dispatched the goods.
3.5. If a delivery deadline is exceeded for reasons for which the software manufacturer is responsible, the customer may set a reasonable grace period and may only withdraw from the contract after the fruitless expiry of this period.
3.6. The risk is transferred to the purchaser as soon as the goods are handed over by the software producer to the parcel service, postal service or forwarding agent.
4. retention of title, property rights of third parties
4.1. The Software Publisher retains title to the delivered data carriers, software and other goods until all claims arising from the contractual relationship between the Software Publisher and the Customer at the time of delivery have been paid in full. The customer is obliged to store the products owned by the software producer with commercial care and to insure them sufficiently.
4.2. For the area of the Federal Republic of Germany, the software manufacturer assumes that the software does not impair the property rights of third parties. Should a third party assert against the customer the infringement of industrial property rights with regard to the delivered software, the customer is obliged to notify the software manufacturer immediately. The parties will then jointly agree on appropriate defensive measures.
5. claims for defects
5.1. If the customer does not immediately notify the software manufacturer in writing of any defects that occur, the claims for defects for the defect that was not notified shall expire.
5.2. If a defect occurs in the works or services supplied by the Software Publisher, the Software Publisher shall, within a reasonable period of time, at its option either remedy the defect or provide the service complained of again free of defects (in total, subsequent performance).
5.3. If the supplementary performance fails, in particular because the defect is not remedied within a reasonable period of at least 2 weeks in each case despite two attempts to remedy it, or if the supplementary performance is unreasonably delayed or unjustifiably refused, the customer may choose to withdraw from the contract or reduce the purchase price.
5.4. The customer has no claims for defects as a result of faults caused by damage, incorrect connection or incorrect operation by the customer. He shall also have no claims for defects if he himself or a third party modifies the delivered works or services, unless he proves that the modification does not significantly impede the analysis or processing efforts by the software manufacturer and that the defect of the software was present at the time of acceptance.
5.5. If the customer withdraws from the contract, he shall pay the software manufacturer an appropriate usage fee for the period up to the time of withdrawal. The usage fee is calculated on the basis of straight-line depreciation over four years.
5.6. Claims for defects shall become statute-barred within one year from the statutory commencement of the limitation period.
6. limitation of liability
6.1. The customer’s claims for damages or reimbursement of futile expenses shall be governed by this provision.
6.2. The Software Publisher shall be liable without limitation for damages resulting from injury to life, body or health caused by a negligent breach of duty on the part of the Software Publisher or an intentional or negligent breach of duty on the part of a legal representative or vicarious agent of the Software Publisher.
6.3. In the case of other liability claims, the software manufacturer shall be liable without limitation only in the event of non-existence of the guaranteed quality and for intent and gross negligence also on the part of its legal representatives and executive employees. The Software Publisher shall be liable for the fault of other vicarious agents only to the extent of the liability for ordinary negligence pursuant to Section 6.4.
6.4. The Software Publisher shall only be liable for simple negligence if an obligation is violated, compliance with which is of particular importance for achieving the purpose of the contract (cardinal obligation). In the event of a simple negligent breach of a cardinal obligation, liability is limited to EUR 10,000.
6.5. Liability for loss of data shall be limited to the typical recovery costs that would have been incurred if back-up copies had been made regularly and in accordance with the risk, unless one of the conditions set out in section 6.2 applies. The liability according to the product liability law remains unaffected.
6.6. The above provisions shall also apply in favour of the employees and vicarious agents of the software manufacturer.
7. final provisions
7.1. Amendments and supplements to this contract or the specifications must be made in writing. Changes and additions must be expressly marked as such and signed by the Purchaser and the Software Publisher.
7.2. The place of performance and jurisdiction is the registered office of the software manufacturer. The law of the Federal Republic of Germany shall apply exclusively.
(as of May 2008)