Here you will find our "General Conditions of Sale and Supply" and subsequently the "Special Conditions for Software Licensing".
General conditions of sale and supply
I. General provisions
1. Written declarations given by both parties are authoritative for the scope of deliveries or services (hereinafter: ‘deliveries’). Such declarations are supplemented by these general conditions of sale and supply (hereinafter: ‘conditions of sale’). The ordering party’s countervailing conditions or conditions otherwise differing to our conditions of sale apply only if this application has been expressly agreed by us in writing. Our conditions of sale also apply in full even when we perform delivery to the ordering party without stating any reservations and despite knowledge of the ordering party’s countervailing or differing conditions. Our conditions of sale also apply in the version valid at the point in time of contract conclusion to all future legal transactions with the ordering party.
2. We reserve all rights of ownership and rights of exploitation under copyright law to all cost estimates, drawings, figures, costings and other documents (hereinafter: ‘documents’). These documents may be shared with third parties only following our prior consent and must be returned to us without delay in the event of the order not being placed. Clauses 1 and 2 apply mutatis mutandis to the ordering party’s documents. However, the ordering party’s documents may be shared with third parties to whom we have officially transferred responsibility for deliveries.
3. For software packages, the ordering party is granted a non-exclusive right of usage with the agreed performance characteristics in an unmodified format on the agreed devices. The ordering party may make two backup copies without requiring express permission to do so.
4. Partial deliveries are permissible if they do not place an unreasonable burden on the ordering party.
II. Contract conclusion
1. Quotations are always subject to alteration insofar as no separate agreements have been made to the contrary. The right to make reasonable changes for technical reasons, and in terms of format, colour and other conditions, is reserved, insofar as this does not affect fitness for purpose.
2. We can accept purchase orders that are to be considered as quotations in a legal sense within two weeks of receipt. This acceptance may be made in writing or by the delivery itself.
3. Contract conclusion is made subject to receiving timely and correct inbound deliveries from our suppliers, but not in cases where we bear no responsibility for non-delivery of these deliveries. This applies in particular if we have concluded a corresponding supply contract with our supplier.
In the event of the non-availability or non-timely availability of the delivery, we will inform the ordering party immediately; any consideration already rendered will be reimbursed without undue delay.
III. Prices and terms of payment
1. Prices are quoted ex works, exclusive of packing, unless other arrangements have been expressly made. Ancillary deliveries will be invoiced separately.
2. Our prices are quoted exclusive of statutory sales tax; this sales tax is quoted separately at the statutory rate.
3. Insofar as we have accepted responsibility for set-up or assembly and unless agreed otherwise, the ordering party bears all additional costs such as travel expenses, costs for transportation, costs for materials required for set-up or assembly, and personal luggage and accommodation allowances, in addition to the agreed compensation.
4. Discounts must be agreed separately in writing.
5. Payment must be made by the due date and at the ordering party’s expense; our receipt of payment is authoritative for deciding timeliness.
6. The ordering party may offset their own claims against our claims only if these counterclaims are recognised as legally binding, uncontested or have been accepted on our part. The ordering party may assert retention of title only in such cases where the ordering party’s counterclaim is based on a legal relationship governed by the same individual agreement; any retention of title based on claims resulting from an entitlement outside the context of the respective contract may not be asserted.
IV. Minimum order volume
The minimum order volume for deliveries within Germany is EUR 50.00 (net value of goods).
For deliveries to EU member states, the minimum order volume is EUR 100.00 (net value of goods).
For all other deliveries outside the EU, the minimum order volume is EUR 500.00 (net value of goods).
V. Retention of title
1. The delivery objects (retained goods) remain our property until the fulfilment of all claims against the ordering party to which we are entitled on legal and contractual terms from the entire business relationship. Insofar as the value of all security interests to which we are entitled exceed the sum of all secured claims by more than 20%, we will, at the ordering party’s request, release a corresponding portion of the security interests as we see fit.
2. While the right to retention of title persists, the ordering party may not pledge or transfer by way of security the delivery objects. Further, the ordering party may sell on only to resellers as part of normal business and only on conditions that the reseller receives payment from their customers or sets the condition that the property is transferred to the customer only once the latter has fulfilled all of their payment obligations. In the event of a resale, the ordering party hereby assigns us all receivables that they receive due to the resale from their buyer or third party up to the amount of the final invoice sum of our receivable. This applies whether or not the purchased item is resold with or without further processing. We remain entitled to collect the receivable ourselves; the right of the ordering party to perform collection remains even after assignment. We undertake not to collect the receivables while the ordering party complies with their payment commitments, does not enter into arrears and has made no application to open insolvency proceedings, and we have not received notice of a suspension of payments. In such cases, we are entitled to request information about the ordering party’s obligors in terms of the receivables assigned to us, and to request all particulars and documents required for collection.
3. In the event of asset seizure or confiscation or other third-party seizure orders or interventions, the ordering party shall inform us and the third parties without delay and is liable for compensation claimed due to delay.
4. If the ordering party is in culpable breach of fundamental contractual obligations, especially a default in payment, we are entitled to take back the delivery after issuing a warning; the ordering party shall then surrender the delivery. The performing of take-back or assertion of a right to retention of title or to pledge retained goods on our part does not constitute termination of the contract unless we have stated this expressly.
VI. Delivery times and delay
1. Our compliance with the times agreed for delivery is conditional on the timely receipt of all documents, required permits and approvals to be supplied by the ordering party, and especially plans or technical particulars, as well as compliance with the agreed payment terms and other obligations on the part of the ordering party. If these preconditions are not fulfilled in a timely manner, delivery times are extended correspondingly; this does not apply if we are responsible for the delay and the ordering party can prove this is the case.
2. If non-compliance with delivery times can be attributed to vis major – such as military mobilisation, war, terrorism, natural disasters, riot or similar events – such as strikes or lockouts – then the delivery times are extended correspondingly.
3. In the event of a delayed delivery, the ordering party, after providing evidence of having suffered a corresponding loss, may claim compensation for each full week of delay at 0.5%, and no more than 5% in total, of the price for the part of the delivery that could not be commissioned for its intended purpose as a result of the delay.
4. Any claims to compensation made by the ordering party that exceed the limits specified in clause 3 are excluded in all cases of delayed delivery, even following the expiry of a grace period set for delivery. This does not apply in the event of mandatory liability due to wilful intent or gross negligence, nor does this imply a change in the burden of proof to the detriment of the ordering party. This does not affect the ordering party’s right to unwind the contract following fruitless expiry of a grace period we have been set.
5. If shipping, delivery, assembly or set-up at the ordering party’s request is delayed by more than a month following notification of readiness for dispatch, the ordering party may be charged warehousing fees at 0.5%, but no more than 5% in total, of the price of the delivery objects for each full month or part thereof. This does not prevent the parties to the contract from providing evidence of higher or lower warehousing fees.
VII. Assumption of risk
1. The risk of accidental destruction and accidental deterioration passes to the ordering party on handover or, in the case of a sales shipment, on delivery to the haulier, freight forwarder or other persons or organisations entrusted with the execution of shipping. The ordering party may request insurance of deliveries against typical transportation risks and bears the associated costs.
2. For deliveries involving set-up or assembly at the ordering party, assumption of risk passes to the ordering party following acceptance at the latter’s premises and no later than completion of assembly or setup. If so agreed, assumption of risk takes place following a successful trial run.
3. If the ordering party has delayed acceptance, risk passes to the ordering party at the point in time the former is in default re acceptance. This applies in particular to default re acceptance in shipping, provisioning, commencing, performing setup or assembly, acceptance on premises or trial runs.
VIII. Set-up and assembly
The following conditions apply to set-up and assembly insofar as not otherwise agreed in writing:
1. The ordering party shall, at their own cost and in a timely manner:
a) complete all earthworks, construction work and other work to be performed by other trades, including supplying skilled and unskilled personnel, materials and tools;
b) provide all materials and equipment required for assembly and commissioning, such as scaffolding, lifting gear and other apparatus, fuel and lubricants.
c) supply energy and water at the point of use, including connections, as well as heating and lighting.
d) provide sufficiently large, suitable, dry and lockable rooms for storing the machine parts, apparatus, materials, tools, etc. and provide appropriate working and common room facilities for assembly personnel, including sanitary facilities appropriate for the relevant assembly activities; the ordering party shall take steps to protect our property and ensure assembly personnel safety on the construction site, such as the ordering party would arrange for their own company; and
e) supply protective clothing and safety devices as required by the specific circumstances of the assembly site.
2. Before starting assembly work, the ordering party shall provide unbidden particulars of the location of supply lines for electricity, gas, water and other systems – especially if concealed – as well as the associated structural safety information. If damage should occur, the ordering party is liable to us on the terms of our internal relationship and must provide evidence that they bear no culpability for this damage.
3. Before the set-up or assembly work commences, the items and objects necessary for starting work must be provisioned at the set-up or assembly site, and all of the work required prior to commencing set-up must have proceeded so far that the set-up or assembly work can be performed according to the contract and without any interruptions or delays. Access routes and the set-up or assembly site itself must be appropriate and prepared so that all assembly and set-up tasks can be performed as reasonably expected.
4. If delays in set-up, assembly or commissioning work occur due to circumstances beyond our control, then the ordering party shall bear a reasonable proportion of the costs for waiting times and any extra travel expenses as required without further conditions being required.
5. The ordering party shall sign records of assembly personnel working hours and the completion of set-up work, assembly or commissioning without undue delay.
6. Following completion, the ordering party shall perform acceptance of the delivery within 2 weeks. If the ordering party does not perform acceptance following completion, then acceptance is considered complete within two weeks of completion. Acceptance is also considered complete if the delivery is utilised – potentially following completion of an agreed test phase. The acceptance cannot be rejected on account of non-material defects.
IX. Liability for defects, warranty
1. Warranty claims asserted by the ordering party are dependent on the ordering party providing notification of obvious defects within 2 weeks of delivery and/or set-up or assembly. Insofar as the condition of the delivery can be determined by special inspections (such as analyses using electrical equipment), this notice of defects deadline is extended to allow the prompt commissioning of these special inspections by the time needed to perform them in the ordinary course of business and no longer than 20 business days. This does not affect duties of inspection and quality control as stated in section 377 of the German Commercial Code.
2. The ordering party shall permit us to inspect the delivery objects that the former considers to be defective.
3. In the event of a delivery object being defective, we have the right to choose between remediation of the defect and delivery of a non-defective good. Remediation work is performed at company headquarters and we bear the costs of return shipments. If remediation is impossible, the ordering party has the right to either reduce the level of compensation paid or to unwind the contract. The right to unwind the contract is not granted in the case of only minor contractual faults and particularly in the event of minor defects. If the ordering party unwinds the contract, this voids all further rights to claim compensation.
4. Claims of the ordering party due to defects lapse for new goods after one year. No warranty is offered following the delivery of used goods.
If the warranty is fulfilled by remediation of defects, the period of limitation for the remediation and for the installed parts lapses with the expiry of the period of limitation for the purchased object itself.
No warranty is offered for defects that have occurred due to normal wear and tear, improper handling, overstressing, modification of the products or similar effects or factors.
5. The ordering party bears the burden of proof for all circumstances on which claims are based. The ordering party also bears the burden of proof for the point in time the defect was discovered, for the presence of the defect at the time of delivery and for the defect not being an obvious defect.
6. The condition of the goods is based solely on the product description and the particulars given in the quotation or our order confirmation. Public statements made by us or by our suppliers, or in particular as made in advertising or labelling that relate to certain properties are not contractually valid statements about condition. If a defective assembly or user guide is supplied, the ordering party merely has the right to demand delivery of a non-defective assembly or user guide. No claim may be made if the defect in the assembly or user guide does not impede the intended assembly or use of the delivery.
7. Insofar as not otherwise expressly set out in a separate agreement, we offer no further guarantees by which we are legally bound.
X. Impossibility/contractual amendments
1. In the event of impossibility for which we are culpable, the ordering party is entitled to claim compensation. The ordering party’s claim to compensation is limited to 10% of the value of that part of the delivery that cannot be commissioned for its intended purpose as a result of this impossibility. This limit does not apply in the event of mandatory liability due to wilful intent or gross negligence, nor does this imply a change in the burden of proof to the detriment of the ordering party. This does not affect the ordering party’s right to unwind the contract.
2. If unforeseen events occur in the sense given by section V(2), such that significantly change the commercial relevance or contents of the delivery or which significantly impact our company, the contract will be amended appropriately by applying the principle of good faith. If this is not a reasonable action to take on commercial grounds, we have the right to unwind the contract. The legal transaction will then be unwound according to legal requirements without entitling the ordering party to claim for compensation. After recognising the severity of the event, we will notify the ordering party without delay that we wish to exercise our right to unwind the contract. The right to unwind the contract exists even if an initial extension period to the delivery time has been agreed with the ordering party.
XI. Industrial property rights and copyright
1. If a third party asserts legitimate claims against the ordering party due to an infringement of industrial property rights or copyright (hereinafter: ‘property rights’) by products supplied by us and used according to the contract, our liability to the ordering party is as follows:
a) We will, as we see fit, bear the costs of obtaining a usage right for that product or will modify the product so that the property right is not infringed or will alternatively exchange the product. If the conditions for doing so are not reasonable, we have the right to take the product back on reimbursement of the purchase price and deducting the expenses saved by the ordering party by usage to date or the benefits accrued by the same as a result of usage to date. Insofar as the contractual relationship or the nature of the delivery itself does not produce some other figure, the expense saved or benefit accrued is set as a fixed percentage of 3% of the purchase price per full month or part thereof of actual usage, with the maximum figure not exceeding the total price. The ordering party is free to provide evidence of a lower figure for expenses and benefits.
b) The obligation stated above applies only insofar as the ordering party notifies us in writing and without delay of the claims asserted by the third party, does not acknowledge an infringement of property rights, and our right conduct defence measures and settlement negotiations is in no way restricted. If the ordering party ceases use of the product in order to mitigate damages or for some other good cause, the ordering party shall notify the third party that this cessation of use does not constitute acknowledgment of a property right infringement.
2. All claims of the ordering party are excluded if the latter bears responsibility for the property right infringement.
3. Furthermore, all claims of the ordering party are excluded insofar as the property rights infringement is caused by special instructions from the ordering party or by a use we have not envisaged, or is caused by the ordering party changing the product or deploying the product with products we have not supplied. In the case of special instructions, the ordering party bears the risk of a property right infringement – we are not obliged to provide information or advice in this context. In the event of a property right infringement by use, the ordering party bears the burden of proof that this use was foreseeable on our part.
4. All further claims against us are excluded; this does not affect the other liability claims regulated in these conditions of sale, however, nor the right of the ordering party to unwind the contract.
XII. Disposal of waste electrical equipment
1. The ordering party shall dispose of the delivery objects when they are no longer required for use and shall comply with applicable waste disposal legislation when doing so. The ordering party bears the costs of disposal.
2. The ordering party releases ELABO from all obligations arising from section 10(2) of the German Electrical and Electronic Equipment Act, and in particular from manufacturer take-back obligations, and indemnifies ELABO against all related third-party claims.
3. If the ordering party passes the objects delivered on to a third party, the former shall ensure that the latter is contractually obliged to dispose of the objects after use according to applicable law, with the costs being borne by the ordering party or third party.
The ordering party shall ensure that the third party is contractually obliged to arrange the same contractual obligations in the event of the goods being passed on again.
4. If the ordering party breaches the terms of clause 3, the party shall take back the goods in accordance with clause 1, dispose of these according to applicable law, and indemnify ELABO against any and all third-party claims.
5. Claims on the part of ELABO from these provisions against the ordering party lapse no earlier than 2 years from the end of use, i.e. a suspension applies to the period of limitation. This does not commence before ELABO’s receipt of a written notice from the ordering party concerning the end of use.
6. Any other agreement for take-back and disposal of the used electrical items by ELABO must be declared by the ordering party in writing. The scope of take-back will be limited to parts that meet all of the following criteria: brand name ‘ELABO’ on the used item, CE marking, serial number label with serial number (must still be present on the used electrical item), icon showing a crossed-out waste container with a black bar positioned underneath this icon. The scope of take-back comprises used electrical items only without housing, bench add-on units, etc.
XIII. Other liabilities
Insofar as we are obliged to pay compensation or reimburse expenses on account of a contractual or legal basis, our liability is limited to wilful intent and gross negligence on the part of our company, our managerial staff or vicarious agents, or in the event of our being culpable of an injury to life, limb or health. This does not affect our strict liability on the terms of the German Product Liability Act. Nor does this affect our liability for the culpable breach of fundamental contractual obligations. In the latter case, however, excepting the cases in sentence 1 and 2, liability is limited to foreseeable losses typical for the contract. The above provisions do not imply a change in the burden of proof to the detriment of the ordering party.
XIV. Place of jurisdiction
The general place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Crailsheim.
All claims are subject to German law with the exclusion of any and all other international conventions.
XV. Severability clause
The validity of individual provisions of these conditions of sale and supply does not affect the validity of the other provisions. The invalid provision will be replaced by a provision whose commercial ramifications most nearly approximate those of the invalid provision.
Valid from 26th January 2022
1. Scope
(1) These Special Conditions for Software Licensing apply in all cases of software licensing by Elabo GmbH (“ELABO”, “we”) to you as the customer. These conditions also apply for any software-related services performed under work and/or service contracts (excluding software maintenance).
(2) Our offers are non-binding unless explicitly marked as binding. Your order shall be considered as an offer in a legal sense and we may accept this offer within two weeks of receipt. A contractin accordance with these Special Conditions for Software Licensing shall be concluded upon acceptance of this offer. An order confirmation shall be provided as confirmation of acceptance.
(3) We shall not recognise any deviating, supplementary or conflicting conditions unless we have explicitly agreed to their validity in writing. This shall also apply where we perform deliveries or services without reservation in knowledge of these deviating conditions.
(4) In cases of uncertainty and/or disagreements, the following hierarchy shall apply for all contracts made between the parties:
- individual agreements within the offer and its attachments, including any written appendices, amendments and addendum;
- these Special Conditions for Software Licensing;
- ELABO’s Terms and Conditions of Sale and Delivery in the version valid at the time the contract is concluded;
- the relevant statutory provisions.
2. Subject
(1) The subject of this agreement is the licensing of our standard software, including plug-ins and add-ons (“software”), in the specified version and with all related documentation as part of the licence package outlined in the offer. “Licence package” refers to the various functions and software modules offered by us as a bundle. Unless otherwise explicitly agreed, the latest software release available at the time of transferring the licence shall be considered as the agreed version. The relevant system requirements shall be specified in the related documentation.
(2) We shall surrender to you defined software licence packages on a temporary (for lease, Section 3) or permanent (for purchase, Section 4) basis. There are single-user-licence and floating-licence licensing models (Section 5) available for both lease and purchase options. The licence packages and applicable licensing model will be defined in the offer.
(3) Unless otherwise agreed, we may choose to make the software, documentation and any necessary licence keys or login details available as a download, on a data carrier, via e-mail or by post. Unless otherwise explicitly agreed, you shall be responsible for software installation. We shall be entitled to withhold the software and/or licence keys where payments due under this legal relationship are outstanding.
(4) Licensing shall not include software installation, customisation and implementation, or any related consultation or training services. These services shall only be provided upon express agreement and under the conditions outlined in Section 7 and 8.
(5) A new “release” refers to a version of the software that offers new features or improvements that differ significantly from the previous version. “Upgrade” refers to a release upgrade. “Update”, however, refers to minor improvements to existing features or bug fixes. “Version” refers to the overall software version.
(6) Where we provide information about the compatibility of our software with specific devices, this information shall relate exclusively to the indicated tested product types and, where applicable, firmware versions of the specified manufacturer. Please note that products from third-party manufacturers with new firmware versions may not be compatible. Compatibility with products from third-party manufacturers is only guaranteed where this have been previously confirmed by your Elabo sales partner.
3. Temporary software licence (lease)
(1) Where software is licensed on a lease basis, you shall receive a non-exclusive, non-transferable and non-sublicensable right to install and use the software in object code limited to the duration of the lease period (contract period). Unless explicitly otherwise agreed, this right of use shall be limited to the latest release of the software licence package at the time the licence is transferred as outlined in the offer.
(2) You shall be entitled to use the software in your own company for your own purposes within the scope of the defined licensing model (see Section 5) and agreed licence type. The licensing model and licence type will be outlined in the offer. “Company” shall also include all subsidiaries in which it holds more than a 50% share.
(3) Unless explicitly permitted under this agreement or by law, you shall not be entitled to (a) rent out, lease, reproduce, modify, adapt, distribute, sell, sublicense or transfer the software, nor create any works derived from this software, (b) grant access to the software to third parties, (c) integrate the software into third-party software, (d) copy or manipulate the licence key or bypass the related authentication, (e) dissect, decompile, translate or otherwise attempt to obtain the source code or the ideas, algorithms, file formats based thereupon, or (f) obfuscate or remove any software signs or notes. You may create a copy of the software for security purposes.
(4) Upon termination of the lease period, you must end all use of the software without being prompted to do so. You must also fully delete all copies of the software and, where requested, provide evidence of such deletion. Where you continue to use the software after termination of the contract, we shall be authorised to request remuneration for any further use. We reserve the right to exercise any further claims.
(5) We shall offer you software upgrades or updates at regular intervals. You shall be entitled to install and use such upgrades/updates in accordance with the provisions outlined in this Section 3. We shall not provide any upgrades or updates for any custom software. Please note that installing updates or upgrades intended for standard software on custom software may lead to errors or defects in the custom software.
(6) Where the software contains open-source software modules, rights shall be granted on a priority basis in line with the open-source software licence conditions.
4. Permanent software licence (purchase)
(1) Where the software is licensed on a permanent basis, you shall receive a non-exclusive and non-sublicensable right to install and use the software in object code for an unlimited period of time upon payment of the purchase price in full. Unless explicitly otherwise agreed, this right of use shall be limited to the latest release of the software licence package at the time the licence is transferred as outlined in the offer.
(2) You may only license the software to a third party where you yourself simultaneously and uniformly surrender use of the software in full and on a permanent basis. Licensing of use of the software to third parties on a temporary or partial basis, be it against payment or not, shall be prohibited. Isolated transfers of the licence key shall not be permitted. Transfer of the software also requires our written consent. We shall grant consent where (i) you attest in writing that you have transferred all original copies of the software to the third party and deleted all copies created by yourself, and (ii) the third party provides confirmation to us in writing that it agrees to these Special Conditions of Software Licensing.
(3) Section 3(2), (3) and (6) shall apply accordingly.
5. Licensing models
(1) Single-user licence: A single-user licence is a licensing model that provides a licence for a specific computer or other defined device within the company. You may only install and make use of as many copies of the software on devices as single-user licences you have purchased. A licence key installed on the relevant device is required to use the software under this licensing model. The licence cannot be linked to a particular person within the company.
(2) Floating licence: A floating licence is a form of licensing which defines the maximum number of people who may access the software at the same time (concurrent users). This limits the number of users that can use the software at the same time. The licence is not linked to a particular natural person or device within the company, however. There is no limit to how many devices within the company the software can be installed on. This model uses a central licence database to manage the licences. The server registers the number of current issued licences and in principle grants every authorised user within your company the right to use the software. When the maximum number of users is reached, any additional users must wait until another user ends their session and a licence becomes available.
(3) Reconciliation of licences in other networks or on other computers within your company shall only be permitted with our consent. We shall provide consent where this does not go against our legitimate interests and you ensure continued compliance with these Special Conditions for Software Licensing following reconciliation. Our customer service team (service@elabo.de) is responsible for reconciling licences.
6. Customer obligations and duties
(1) You shall be responsible for ensuring that your employees comply with this agreement and exercising suitable precautions to prevent access to the software by third parties.
(2) You shall be obligated to immediately report any software malfunctions or bugs (hereinafter referred to collectively as “errors”) as soon as they occur. As a minimum requirement, the error report should include a description of the present symptoms, information on the system and hardware used, details of any potential third-party software running alongside and any other information that may be relevant for fixing the error. If we provide you with a form to report any errors, you must use this form and fill it out completely before returning it to us.
(3) You shall be obligated to support us to the best of your ability in finding the cause of the error and, where necessary, urge your employees and external service providers to cooperate with us.
(4) You must provide us with at least one e-mail address which is monitored at least once a day on working days (Monday to Friday) to ensure that we are able to inform you quickly and reliably of any software errors as needed. Details you provide must be continuously updated and you must notify us immediately of any changes. We shall not be obligated to attempt further contact or send additional enquiries where our original message is not received and we shall not be held liable for any damages that could have been avoided had the original message been received and reasonable measures had been subsequently taken by you.
(5) Where required for performing our services, you shall be obligated to grant access to your business premises and your IT infrastructure to our employees and, where applicable, our commissioned sub-contractors and make available to them the suitable systems, including in particular hardware and operating systems.
(6) You must also provide any necessary data and other forms of information relevant for fulfilling the contract. You are under a particular obligation to notify us of any particular circumstances specific to your industry and which are not immediately apparent, which is also why are unable to about these circumstances.
(7) You must obtain all third-party or official approvals and permits necessary for performing the contract.
(8) You shall be personally responsible for complying with all import and export regulations applicable to services rendered under this contract, including in particular those of the USA. Unless otherwise agreed, you shall be personally responsible for completing all legal or official procedures relating to cross-border services.
(9) You shall be obligated to take any suitable, appropriate measures to safeguard any Elabo know-how made available to you for the purposes of performing the contract, as well as our industrial property rights, and protect such against unauthorised access by third parties.
(10) In the event of any illegal third-party access, you shall be obligated to provide support in defending against such access, as well as support in finding a resolution and limiting damages.
(11) You shall be responsible for adhering to any software operating instructions containing in the relevant documentation.
(12) You shall be responsible for implementing proper data back-up measures. These measures shall includes all appropriate technical and/or organisational measures for ensuring the availability, integrity, consistency and rapid recoverability of the relevant systems, as well as any data, programs and procedures stored on these systems. You shall be obligated to notify us in text form where any data that may fall within our employees area of influence as part of the provision of services is, by way of exception, not properly backed up.
(13) Where you are in breach of your obligation to cooperate, we shall not be obligated to provide our services if and to the extent that your failure to cooperate prevents us from doing so. Any deadlines shall be extended accordingly. We shall reserve the right to submit claims for damages. Where waiting times occur due to failure to cooperate, we shall be entitled to request remuneration for such in line with our price list valid at the time of this request.
7. Performances under work contracts
(1) Where we are contractually obligated to install, adjust or configure software, set up or implement systems or perform other services for the purposes of successfully producing a software-related work, the provisions under this section shall also apply.
(2) Where, after entering into a contract, requests for changes with regard to the scope of function, program structure or other software features would lead to significant additional expense and/or effort, we shall includes these changes at an appropriate extra cost. We shall then present you with a written amendment offer outlining any changes to the period of performance, planned deadlines and related remuneration as a result of the requested changes. Only changes agreed in writing shall be implemented.
(3) Once the work is complete, you will be presented with the acceptance certificate. You shall then be obligated to confirm or decline acceptance in writing within 14 days. Where you decline acceptance, you must provide information of at least one significant deficient performance. We shall be obligated to request acceptance of definable partial performances.
(4) A performance shall be deemed as accepted, even without explicit confirmation, where
- you use the performance for anything other than testing purposes, in particular where you use it as part of your ongoing operations; or
- you do not report any significant deficient performances preventing acceptance within the test period.
8. Performances under service contracts
(1) For commissioned services, in particular consultancy or training services, the following provisions shall apply. Services as part of software maintenance shall, however, be rendered in accordance with the agreements made in the respective Service Level Agreement.
(2) We shall select employees entrusted with rendering the service ourselves. You shall have no right to request the service be rendered by certain employees. You shall not be authorised to instruct our employees. If you require any further clarification, please contact the relevant project manager.
(3) Unless otherwise agreed, services shall be billed at cost in line with our current price list (time and material). Cost estimates or information on overall costs shall only be deemed as fixed prices where they are explicitly marked as such.
9. Remuneration
(1) All prices shall be stated in euros and are ex works plus statutory VAT and plus any customs duty, fees and other public charges for export shipments.
(2) Unless otherwise agreed, you shall also be responsible for any necessary additional costs such as travel costs, personal luggage costs and transport costs in addition to the agreed remuneration.
(3) Where services are billed at cost, we shall document the type and duration of activities and submit this documentation alongside the invoice. Proof of expenditure shall be considered to be approved where you fail to contest such in writing and provide detailed reasoning for this within 21 days of receiving the proof of expenditure.
(4) Unless otherwise agreed, all invoices shall be payable in full in euros within 14 days of the invoice date. The payment date shall be considered as the day on which we receive the payment. Following this deadline, interest shall be applied p.a. in the amount of 9 percentage points above the respective base rate.
(5) We shall be entitled to first increase licence fees 12 months following the contract start date subject to a three-month notice period if and to the extent that our costs for maintaining and providing the software (incl. staff costs and energy costs) have increased. You shall have the right to terminate the lease agreement within six weeks of receiving the notification of an increase in licence fees. Similarly, you may request a reduction in the licence fees 12 months following the contract start date where our corresponding costs have decreased.
10. Licence audits and protective measures
(1) Upon request, you shall be obligated to provide us with detailed information on the use of the software in your company.
(2) We shall be entitled to have your actual use of the software audited (“licence audit”). This audit may only be performed by an independent expert who has undertaken to maintain professional secrecy (“auditor”) and who may only disclose information on use if and to the extent that there have been breaches of licence and where this information is required as part of enforcement measures. Where breaches of licence are acknowledged and the corresponding compensation requirements are satisfied, the auditor shall not be entitled to disclose any information. You shall be notified of a licence audit in writing ten days in advance. You shall be obligated to provide the auditor with any information necessary to conduct the licence audit and allow to a reasonable extent access to devices or servers on which the software or software keys are installed.
(3) We shall cover the costs of the licence audit except where the audit shows that you have significantly transgressed the agreed scope of use. You shall provide any necessary support for the licence audit at your own cost. Where you have transgressed the scope of use, we may invoice you for all previous or ongoing use of the software, as well as for the costs of the licence audit. The corresponding invoice shall be payable immediately. All other rights on the part of ELABO shall remain reserved in such cases. However, any subsequently billed licence fees and costs must be counted towards continuing claims.
(4) We shall be entitled to take further suitable measures for preventing any unauthorised use of our software as part of the ongoing contractual relationship (e.g. upstream registration for use of software or use of a dongle).
11. Term and termination
(1) For ongoing obligations, in particular software leases, the term shall be defined in the offer. Unless otherwise agreed, the term shall be automatically renewed for a further 12 months where it is not terminated by a party subject to a three-month notice period.
(2) The right to terminate for good cause shall remain unaffected. Repeated breaches despite written warnings or individual serious breaches of these licensing conditions shall constitute good cause.
(3) Where you are in breach of export control regulations, in particular those of the Bureau of Export Administration of the US Department of Commerce, we shall be entitled to terminate the agreement extraordinarily without notice.
12. Rights in the event of defects
(1) Unless otherwise stipulated in the individual agreement or the provisions below, we shall provide warranty in accordance with the applicable statutory provisions for defects in quality and title.
(2) Liability without fault on the part of the lessor in accordance with Section 536a(1), 1st alternative, of the BGB [German Civil Code] due to defects existing at the time the contract is entered into, shall be excluded.
(3) Warranty shall not extend to software that you have modified or which you use in any other system than that specified in the relevant documentation, unless you can prove that such circumstances are not the cause of the reported defect.
(4) Our obligation to remedy defects shall be limited to the respective latest version of the software unless you are using an older or custom version with our consent. For serious defects, you shall be obligated to use a new version of the software where this new version will remedy the defect you are experiencing, except where use of the new version would be unreasonable for you. We shall be obligated to present you with an offer to purchase the corresponding licence for the new version under reasonable conditions. Where a new version of the software provided to you contains additional licence packages, you shall only be entitled to use these additional licence packages where our agreement has been adapted accordingly.
(4) Where we are obligated to remedy a defect, we may, at our own discretion, choose to remedy the defect by way of immediate repair, circumvention or replacement. Where we do not successfully remedy the defect within an appropriate period of time, you may set an extended deadline for us. Failure to remedy the defect within this extension shall entitle you to request a reduction in remuneration or terminate the contract.
(5) Where the software is in breach of any third-party industrial property rights or copyrights, we may, at our discretion, choose to amend or exchange such software so as to prevent any further breach of third-party rights while ensuring that the software continues to function as contractually agreed or that you are still granted the right of use. Where we are unable to do so within a reasonable period of time, you shall be entitled to withdraw from the contract or reduce remuneration accordingly.
(6) The period of limitation for claims due to defects in quality and title shall be one year from the start of the statutory limitation period.
13. Limitation of liability
(1) We shall be liable for damages in accordance with the following provisions:
(i) We shall assume unlimited liability for any breach of warranty or injury to life, limb or health. The same shall apply for intent or gross negligence.
(ii) Our liability for ordinarily and/or inadvertently negligent breaches of significant contractual obligations shall be limited to typical contractual damages foreseeable at the time of entering into the contract. Significant contractual obligations shall be any obligations whose fulfilment is essential for the proper performance of the contract, in particular obligations of which a breach would jeopardise achieving the purpose of the contract and on whose compliance you duly rely.
(iii) Our liability for damages in the event of a loss of data shall be limited to damages that would have still arisen had a proper data back-up been performed.
(iv) All other liability on our part is excluded.
(v) Liability under ProdHaftG [German Product Liability Act] shall remain unaffected by these provisions.
(2) We shall only be liable for loss of production or profits in the event of intent or gross negligence.
(3) The aforementioned limitations of liability shall apply accordingly where you exercise any claims for compensation in lieu of performance as opposed to a claim for compensation for wasted expenditure.
(4) The aforementioned exclusions and limitations of liability shall apply equally in favour of our entities, legal representatives, employees or other vicarious agents.
(5) The period of limitation for compensation claims shall be one year from the start of the statutory limitation period. This shall not apply in the event of liability due to intent, gross negligence of injury to life, limb or health.
14. Force majeure and delay
(1) We shall not be liable for delivery delays or delays in performance where these have been caused by force majeure or other events not foreseeable at the time of entering into the contract (e.g. industrial action, lawful lockouts, general energy or raw material shortages, official measures, severe weather, pandemics or war) for which we are not responsible.
(2) For temporary hindrances, the delivery or performance deadlines shall be extended by the duration of the hindrance plus a reasonable restarting period. We shall notify you of any hindrances and their estimated duration immediately upon becoming aware of such circumstances. Where it is no longer reasonable for one of the parties to continue the contract due to the duration of the hindrance, this party shall be entitled to withdraw from the contract.
(3) In the event of delays in delivery or performance on our part due to ordinary negligence, our liability for damages resulting from delays shall be limited to 5% of the net order value of the delayed delivery or performance. This shall not apply for claims arising due to culpable injury to life, limb and health.
15. Confidentiality and data protection
(1) “Confidential information”, be it explicitly marked as such or not, shall refer to all financial, technical, business, legal and tax-related information, as well as any information pertaining to our business activity, our staff or our business management (including know-how) which is made available to you for the purposes for fulfilling the contract. Information shall not be considered to be confidential where it was publicly known at the time of obtaining knowledge of such, or where it became publicly known after the fact, without you breaching any of your obligations of confidentiality.
(2) You shall be obligated to treat all confidential information as confidential. You shall not be entitled to use such confidential information for any other purpose than fulfilling the contract and must not disclose this information to third parties.
(3) You may only disclose confidential information to such persons (in particular employees, entities, consultants) that absolutely require knowledge of this information for the purposes for fulfilling the contract and who themselves are bound to confidentiality.
(4) The obligations of confidentiality shall remain in effect beyond termination of the contract.
(5) You shall be obligated to follow all applicable statutory data protection provisions in performance of this contract. In particular, you shall, where required, be obligated to sign any additional data protection agreements (e.g. pertaining to commissioned processing in accordance with Article 28 GDPR) with us.
16. Miscellaneous
(1) The legal venue for any potential legal disputes arising from our business relationship shall be the main office of ELABO where you are a merchant, legal person under public law or a public-law special fund.
(2) The applicable law shall be the law of the Federal Republic of Germany under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980.
(3) Changes and amendments to the contract must be made in written form to be effective. Both contracting parties must provide a legally binding signature on all changes and amendments. This shall also apply for all agreements waiving or amending this written form clause.
(4) Where a provision of these Special Conditions for Software Licensing is or becomes legally invalid or unenforceable, this shall not affect the validity of the remaining provisions. In such cases, the contracting parties must agree to replace the invalid or unenforceable provisions with another provision that reflects the original economic purpose of the invalid or unenforceable provision as closely as possible. The same shall also apply where these provisions are found to contain a gap and/or omission.
ELABO GmbH
Roßfelder Straße 56
D-74564 Crailsheim
Germany
Phone: +49 7951 307 0
Fax: +49 7951 307 66
E-mail: info@elabo.de