General Terms and Conditions for the Supply of Software and License Terms
1. Scope of Application
1.1 These Terms and Conditions of the company SIS Industrial Software GmbH (hereinafter referred to as “SIS”) shall apply to all contracts concluded between the customer and SIS relating to the supply of standard software.
1.2 The incorporation of the customer’s own terms and conditions is hereby rejected unless otherwise agreed in writing.
2. Conclusion of Contract
2.1 Contracts are formed by an offer and acceptance subject to the application of these General Terms and Conditions.
2.2 The product descriptions and the pricing do not constitute binding offers on the part of SIS, but merely serve the purpose of submitting a binding offer by the customer.
The customer can submit an offer through the online order form. In so doing he makes a legally binding offer to enter into a contract for the product in the shopping basket after entering the company data and by clicking on the button that completes the order process. Furthermore the customer can also make the offer by telephone, by facsimile, by e-mail or by post to SIS.
2.4 SIS may accept the customer’s offer within five days, by transferring a written order confirmation or an order conformation in written form (e-mail or fax), whereby receipt of the order confirmation by the customer shall be decisive, or by delivering the ordered software, whereby the decisive factor shall be that the software has been provided on the network for download and the customer is notified thereof at the e-mail address provided by him when placing the order.
If several of the aforementioned alternatives apply, the contract shall be concluded at the time when the first of the aforementioned alternatives to apply occurs. Should SIS not accept the customer’s offer within the aforementioned period of time, this shall be deemed to be a rejection of the offer with the effect that the customer is no longer bound by his declaration of intent.
2.6 If the customer has not placed an order but has instead only downloaded a free “demo licence” it may be used for test purposes for up to 15 days following the download. No activation code is needed. After the expiry of 15 days the software will no longer run and has to be deinstalled and deleted. No copies may be retained. Alternatively, the customer can decide to purchase the software without there being any need to download it again (all that is required is the activation code for activating the software, which code is generated following conclusion of the contract to purchase the software).
2.7 If the parties have agreed special conditions, said special conditions shall not apply to any simultaneously ongoing or future contractual relations with the customer unless expressly otherwise agreed.
3. Subject Matter of the Agreement
3.1 The user documentation applicable at the time the contract was concluded shall be decisive for the attributes of the software supplied by SIS. The software can only be used with a valid activation code (see also Clause 4).
3.2 Use of any copy of the software acquired is in each case tied to one piece of hardware (for each licence acquired use is permitted on one piece of hardware, whose ID is embedded in the activation code, cf. Clause 5). The activation code is valid only for the hardware on which the software is installed.
3.3 The hardware on which the software is installed can be changed (deleting the software on the original hardware), the software can also be passed on to third parties (if the customer relinquishes his own use and rights); Clause 4.3 must be observed in each case. In each case no copies of the software may be retained.
3.4 For the software “PLC Reports” several editions are offered (Starter, S, M, L and XL), all of which include the full range of functions. The editions essentially vary in the possible number of respective SPSs, report pages, variables and archives (cf. product description under www………..).
The customer decides on one of the editions when purchasing the software but can upgrade to a higher edition in consideration for the corresponding fee according to the price list (“upgrade licence”).
3.5 The software and the user documentation pertaining thereto shall be supplied in German unless expressly otherwise agreed. There is no right to multiple languages. The software’s source code is not part of the software supplied.
3.6 Installation, configuration, starting up, training, maintenance of the software or other services, which go beyond the supply of software, do not form an integral part of the contract. For the installation of the software SIS refers to the installation notes in the user documentation. Please note that the installation and configuration must be undertaken by appropriate qualified personnel. It is recommended that a contract for training contract and a maintenance be concluded.
4. Activation Code
4.1 The software is protected against unauthorised use and can only be used following receipt of an activation code.
The activation code is tied to the hardware, on which the software is installed.
4.2 The activation code is issued by SIS on the occasion of the initial purchase. The customer’s company name and address must be provided. Said details are embedded in the software’s licence information in the course of the activation. In addition, the ID of the hardware, on which the software is installed, is generated. The activation code cannot be generated without the hardware ID.
4.3 A new activation code is needed and must be requested from SIS if the hardware, on which the software is installed, is changed. If the software is passed on to third parties it is recommended that a new activation code be requested so that the new user is set up in the software’s licence information as the authorized party.
5. Grant of Licence
5.1 In consideration for the one-off fee agreed SIS grants the customer a non-exclusive (ordinary) right to use the software internally for its own purposes on one piece of hardware (“Named User”), which right shall be unlimited in terms of time, that is to say, in particular, the right to permanently or temporarily store and load, display and run the software, including in so far as any copies are necessary for this. No renting out or sublicensing is permitted.
5.2 The licence is a “Named User” licence, i.e. for each copy of the software purchased the customer is entitled to install the software on one piece of hardware (“Named User”), the ID of which is embedded when the activation code is generated.
Hardware for the purposes of these General Terms and Conditions is any hardware, including virtualized systems.
5.3 If the hardware is changed the software may be used on other hardware only if it is ensured that no copy of the software remains and that it is no longer used either on the original hardware or on any other hardware other than the new hardware on which the software is to be used in accordance with the contract. If the hardware is changed Clause 4 must be observed (new activation code required).
5.4 The software may be passed on to third parties providing the customer relinquishes his own use and rights; Clause 4.3 must be observed. No copies of the software may be retained.
5.5 In the case of “demo licences” use of the software is limited in terms of time to the agreed trial period.
5.6 The customer is not granted any editing right unless modifications are permitted by reason of mandatory statutory provisions.
5.7 The user documentation is intended solely for internal use in connection with the use of the software. It may not be passed on to third parties unless said passing on is a permissible passing on of the software to third parties.
5.8 The customer shall be entitled to make a reasonable number of backup copies of the software surrendered solely for backup purposes. The copies of the software made for the purposes of a proper data backup are part of the contractual use.
5.9 Copyright and other intellectual property notices may not be removed or altered. They must also be transferred to every backup copy.
6. Duties of the Customer
6.1 The customer must inform himself about the software’s functional features and shall bear the risk of whether said features meet his wishes and requirements. Setting up a functional and adequately dimensioned hardware environment and software environment – also taking into account the additional load due to the software – falls within the customer’s sphere of responsibility. The customer shall observe the information provided by SIS for the installation and the operation of the software particularly the information concerning the system requirements.
6.2 The customer shall take appropriate precautions for the event that the software does not work properly (e.g. sufficiently regular data backups, fault diagnosis, regularly checking the results of the data processing). Before installing the software the customer must make an appropriate backup of his data. The customer is particularly also obliged to have the configuration tested by appropriate qualified personnel before using it in operational production.
6.3 Order processing and contacting usually takes place via e-mail and automated order processing. It is the customer’s responsibility to ensure that the e-mail address he/she provides for the order processing is
accurate so that e-mails sent by SIS can be received at this address. In particular, if SPAM filters are used it is the customer’s responsibility to ensure that all e-mails sent by SIS can be delivered.
6.4 The customer undertakes to ensure through appropriate technical and organisational measures that it is guaranteed that the software is used in accordance with the contract and that there is a valid activation code.
7. Prices and Payment Terms
7.1 SIS’s price list applicable at the time the contract was concluded shall apply. The prices stated are net prices and are stated subject to the statutory rate of value added tax as applicable from time to time.
7.2 The fee shall be due for payment upfront (advance payment). Delivery and postage costs, customs duties, taxes and levies shall, to the extent they arise, be charged separately to the customer and are to be borne by the customer.
In particular, for deliveries to countries outside the European Union, additional costs may arise for individual cases such as additional taxes and/or duties, e.g. in terms of custom duties. Any additional costs have to be paid by the customer.
7.3 Payment can be made using one of the methods mentioned in SIS’s online shop.
7.4 If prepayment has been agreed upon, payment shall be due immediately upon conclusion of the contract.
7.5 If the software is made available for download via a network SIS shall bear the cost of placing the software in the network such that it can be downloaded, the customer shall bear the cost of downloading.
7.6 In the event of any failure to pay on the due date SIS shall have a claim to default interest in the amount of 10 percentage points above the base interest rate from time to time. This is without prejudice to SIS’s other statutory rights in the event of any failure by the customer to make payment by the due date. If receivables are overdue, payments received shall first be applied against any costs and interest, then against the oldest receivable.
8. Reservation of Rights
The rights in the software are granted subject to the condition precedent that, and with effect from the time when, the remuneration agreed for the supply of software is paid in full.
9. Terms and Conditions of Delivery and Dispatch; The Passing of Risk
9.1 SIS shall effect delivery of the software by providing the software and user documentation on a network for download and notifying the customer thereof at the e-mail address provided by him when placing the order. The software shall be supplied in executable form (object code).
9.2 The relevant date for compliance with any delivery dates and the passing of risk shall be the date when the software is provided on the network in a form, which can be downloaded, and the customer is notified thereof.
10. Liability for Defects (Warranty)
10.1 The liability for defects shall be governed by the statutory provisions subject to the following conditions:
- a minor defect shall not constitute claims for defects;
- Claims for defects shall not extend to software, which the customer or a third party modifies without SIS’s consent. This shall not apply if the customer proves that the modification was not causal for the defect reported;
- Claims for defects shall not extend to software, which the customer has not used in the agreed system environment unless the customer proves that said use was not causal for the defect reported.
- SIS has the right to choose the type of supplementary performance (rectification of the defect or a replacement delivery);
- Any supplementary performance by SIS does not cause the limitation period pursuant to Paragraph 212 German Civil Code (BGB) to recommence.
- The limitation period for defects shall be one year as of the passing of risk; however, this shall not apply in the case of intent (Vorsatz) or an intention to deceive (Arglist).
10.2 The limitations of liability in Clause 10.1 do not include the right of recourse pursuant to Paragraph 478 German Civil Code (BGB) or any claims for damages and compensation for expenses, which the customer can assert pursuant to the statutory provisions governing defects. Clause 11 shall apply to claims for damages and claims for compensation for expenses.
10.3 The duty to inspect and report any complaints pursuant to Paragraph 377 German Commercial Code (HGB) remains unaffected.
10.4 If the supplementary performance is effected by way of a replacement delivery, the customer shall be under an obligation to return the defective product, which was first delivered, to SIS within 30 days – copies of the software may not be retained – and to pay compensation for the benefit of use in accordance with the statutory provisions.
10.5 If the customer has asserted claims for defects although there was no defect in quality (Sachmangel), and if he is responsible for this, he must bear the costs thereby incurred by SIS.
The following provisions shall apply to all of the customer’s contractual, quasi-contractual and statutory claims for damages and for compensation for expenses, including any such claims in tort, against SIS on no matter what legal ground, particularly because of any breach of duty ensuing from the contractual relationship or from tort:
11.1 In the event of a breach of any material contractual obligation the liability shall be limited to compensation for the loss that typically occurs and was foreseeable at the time the contract was concluded. Material contractual obligations are obligations, which – according to the terms of the contract – the contract imposes on SIS to achieve the purpose of the contract, the performance of which makes the proper implementation of the contract possible in the first place, and compliance with which the customer may usually rely on.
11.2 Furthermore SIS’s liability is limited in quantum to the contract value.
11.3 The limitations of liability set out in Clauses 11.1 and 11.2 do not apply in the case of intent or gross negligence, in the case of any intention to deceive (Arglist), in the case of an injury to life, body or health, if the German Product Liability Act (Produkthaftungsgesetz) applies and in the case of a guarantee provided that, in the case of the latter, the guarantee does not provide otherwise.
11.4 The above provisions do not entail any reversal of the burden of proof to the detriment of the customer. The statutory rules on the burden of proof shall remain unaffected.
The customer may not assign any claims arising out of the contract concluded with the customer, particularly not any warranty claims of the customer.
13. Applicable Law and venue
13.1 The laws of Germany shall apply, to the exclusion of the provisions of the UN Sales Convention (CISG) and the provisions on the conflict of laws.
13.2 If the customer is a businessman (“Kaufmann”), a legal entity under public law or a special body or fund under public law, the place of performance and the court of jurisdiction for all legal disputes arising out of this contract shall be at SIS’s place of business (D-71229 Leonberg, Germany). The same applies if the customer does not have a general court of jurisdiction or place of residence in Germany. The right of SIS to go to court at a different court of jurisdiction remains unaffected hereby.
13.3 The contractual language is German. These General Terms and Conditions exist in German and in English. The German version shall take precedence particularly in the event of any questions as to interpretation or in the event of any conflict.
SIS Industrial Software GmbH
Ditzinger Str. 19