General Terms and Conditions for Software Leasing

Version of 1 October 2018

 

1          Scope of application, scope of licence and term

 

1.1        These General Terms and Conditions for Software Leasing (hereinafter “Framework Contract”) are valid for all individual contracts between i-ROM GmbH, Neukirchen (“i-ROM” for short) and all Licence Holders referenced in those contracts.

 

1.2        The individual contracts enter into force when the Licence Holder issues a written order in response to a written offer by i-ROM and a Licence Agreement is signed by both parties. Scanned signatures are permissible. An email exchange is likewise permissible. The Licence Holder’s General Terms and Conditions do not constitute an element of the contract.

 

1.3        i-ROM assigns to the Licence Holder the software as described in the Licence Agreement and in its present state of development and grants the Licence Holder, depending on the specifications in the Licence Agreement – generally for 12 months – a non-exclusive, non-transferable right of use in accordance with the conditions of this Framework Contract.

 

1.4        Granting of the full contractual right of use shall be subject to the condition precedent of full payment of the fee. Until full payment is received, right of use shall be temporarily limited to a period of 30 days from delivery of the software.

 

1.5        At the discretion of i-ROM, the software and user documentation shall be either made available on a server or sent via email.

 

1.6        The software is usable only when activated with a specific licence file. At i-ROM’s discretion, i-ROM shall either make the licence file available on a server or send it via email.

 

1.7        The Licence Holder shall receive the software in binary format (MATLAB PCODE). The Licence Holder shall have no right to transfer the source code. Use of the software is legally and technically restricted to the computer designated in the Licence Agreement.

 

1.8        Should the Licence Holder wish to use the software on a computer other than that designated in the Licence Agreement, a new licence file shall be required for this purpose. The new licence file will be made available by i-ROM at no cost within the term of the contract if the reason for the change of computer is plausible to i-ROM.

 

1.9        The software shall be deemed delivered once the Licence Holder has received everything necessary to access the software. Installation of the software shall be at the Licence Holder’s expense and own risk. The Licence Holder shall ensure that the computer is suitably configured.

 

1.10        Where reference is made in the Licence Agreement to the licensing terms of other manufacturers, further specifications to the content and scope of the Licence Holder’s right of use may arise from them. In this case, these licensing terms also determine the legal relationship between the Licence Holder and the manufacturers.

 

1.11        If the Licence Agreement states that this is a licence for academic use, the software may be used only for teaching and publicly funded research (the results of the research must be publicly accessible) and not for commercial purposes. At the request of i-ROM, the Licence Holder must submit a written report regarding the use of the software.

 

1.12        Within the testing period, the provisions of this Framework Contract shall apply mutatis mutandis, especially Points 1.5–1.7, Point 2 and Point 6.7.

 

2            Duties and obligations of the Licence Holder

 

2.1        The Licence Holder may not lease or loan the software nor transfer it to third parties.

 

2.2        Use of the software requires the Licence Holder to provide internal computer information for each computer. Licence management requires the capacity to establish a regular connection between the Licence Holder’s computer and the i-ROM server. In doing so, solely licence-relevant information will be transferred.

 

2.3        The Licence Holder must comply with import obligations of those countries where the software is used as well as export provisions of the Federal Republic of Germany and third countries (such as the US).

 

2.4        The Licence Holder is obliged to perform data backups on a regular basis and in accordance with the level of risk.

 

2.5        The Licence Holder must observe i-ROM’s copyright and intellectual property rights with respect to the software. Any copying of portions of the software or the software as a whole, other than for the contractually allowed use, is prohibited. Decompilation of the software is likewise prohibited.

 

3            Support and maintenance

 

3.1        Support and maintenance are included in the software lease for the duration of the Licence Agreement.

 

3.1.1 nbsp] nbsp] nbsp] nbsp] nbsp]  Support includes the elucidation and remediation of operational errors via brief consultation via telephone during normal business hours (service hotline). Support is only provided for the current and preceding versions at a given time.

 

3.1.2 nbsp] nbsp] nbsp] nbsp] nbsp]  Maintenance consists of supply of updated versions of the software (improved and enhanced versions) issued by i-ROM after their release. Updated versions may require updating of the operating system or interface programs.

 

3.2        The obligation to provide support and maintenance ceases if the Licence Holder modifies the software without authorisation.

 

4            Terms of payment

 

4.1        The leasing fee for the entire lease period is to be paid in advance to i-ROM in accordance with the Licence Agreement within 30 days following delivery of the software. The agreed value of the lease applies exclusively to the agreed contractual term.

 

4.2        Should the Licence Agreement be extended, payment is due at the beginning of the new term.

 

4.3        All prices and costs are stated exclusive of statutory value-added tax. Discount deductions are excluded.

 

4.4        The Licence Holder shall be responsible for all customs duties, taxes and all other charges connected with the software transfer.

 

4.5        Should payment of the lease fee not be received in a timely fashion, i-ROM is entitled to revoke the Licence Agreement without notice. Revocation by i-ROM without notice can occur via email and will be implemented by deactivation of the activation code provided to the Licence Holder.

 

5        Warranty, third-party property rights

 

5.1        If the software is materially defective, i-ROM is required, at its discretion, either to resolve the defect or to replace the product with defect-free software within a reasonable period after the Licence Holder has brought the defect to its attention. Should the repair prove unsuccessful, the Licence Holder is legally entitled to assert a legal claim (rescission of the Licence Agreement and pro-rata reimbursement of the lease price). If i-ROM itself is not in possession of the source code, it can only repair defects to the extent that it receives a corresponding bug-fixing update from the manufacturer. If the Licence Holder sustains damages as a result of the defective software, the limitations of liability pursuant to Items 6.1–6.7 of this Framework Contract shall apply.

 

5.2        Claims due to material defects shall be excluded if a software environment other than that designated in the Licence Agreement (operating system, MATLAB, ANSYS) is used.

 

5.3        No guarantee is provided for the accuracy and/or applicability of the results achieved through use of the software. The software descriptions in the user documentation are provided without guarantee.

 

5.4        Should a third party be entitled to claims against the Licence Holder due to violation of property rights based on the software provided by i-ROM and the Licence Holder’s contractual use of the software become thereby affected or impossible, i-ROM shall, at its discretion and cost, either supply software that has been modified or replaced so as not to violate the third party’s property rights, and without thereby limiting the functionality of the software, or else indemnify the Licence Holder against payment of the third party’s licensing fee for use of the software. The Licence Holder must promptly inform i-ROM in writing regarding alleged infringements of third-party property rights. Furthermore, the Licence Holder must not acknowledge the alleged infringement and may only engage in discussions with the third party regarding the infringement of property rights in consultation with i-ROM. Claims by the Licence Holder arising from an infringement of property rights are excluded to the extent that the infringement is based on the Licence Holder’s having modified the software or used it in conjunction with the software of another manufacturer. The same shall apply to the extent that the infringement is based on an improper use of the software, especially if the use is inconsistent with the contractual user configuration. Further claims on the part of the Licence Holder due to an infringement of third-party property rights are excluded unless a liability is provided for in the present Framework Contract (Items 6.1–6.7 of this Framework Contract).

 

5.5        Extraordinary termination due to failure to guarantee use (Section 543, Para. 2, No. 1 of the German Civil Code [BGB]) due to defective software is excluded for software leasing as long as the attempt by i-ROM to repair the defect is considered not to have failed.

 

6             Limitation of liability

 

6.1        Regardless of the legal basis, i-ROM shall only be liable for damages if these are caused by intent or gross negligence, or by deliberate or negligent violation of essential contractual obligations. In the sense of the above, contractual obligations are deemed essential where their fulfilment is an indispensable condition for the proper implementation of the Licence Agreement and on compliance with which the Licence Holder may regularly rely.

 

6.2        In the case of ordinary negligence, i-ROM’s liability is limited to foreseeable damage typical of the contract.

 

6.3        i-ROM shall only be liable for the consequences of defects in the event of malice or gross negligence; the Licence Holder’s legal claims to compensation for damages arising from a delay in resolving the defect shall remain unaffected.

 

6.4        The above limitations and exclusions of liability shall not apply to damages arising from culpable injury to life, limb or health attributable to i-ROM or to liability under the Product Liability Law.

 

6.5        The parties to the contract agree that computer-aided calculations (CAE) must be constantly checked by means of suitable methods since the results achieved can be erroneous due to inaccurate or imprecise entries or hidden software defects.

 

6.6        Proper use of the software requires specific introductory training or existing knowledge on the part of the user.

 

6.7        Within the testing period, liability for any sort of damages is excluded.

 

7            Extensions of the contract

 

Extension of the term for leasing of the software requires a written agreement. It occurs upon the signing of a new Licence Agreement and requires a written order from the Licence Holder based on a prior offer from i-ROM, cf. Point 1.2.

 

8            Other provisions

 

8.1        The Licence Holder’s rights arising from this Framework Contract and the individual contracts cannot be assigned to third parties. The Licence Holder can only offset payment claims from i-ROM with claims from the respective individual contract or with undisputed or legally established claims. The Licence Holder is only entitled to a right of retention due to claims arising from the respective individual contract.

 

8.2        German law shall apply to the exclusion of the UN Sales Convention. If the Licence Holder is a merchant, a legal entity under public law or special fund under public law, or if the Licence Holder has no general place of jurisdiction in Germany, the competent court for Neukirchen is agreed as the exclusive place of jurisdiction for all legal disputes arising from and in connection with this Framework Contract, unless another jurisdiction is mandatory by law.

 

8.3        Supplements or amendments to this contract or the Licence Agreement must be in writing. This shall also apply to any waiver of the written form requirement.

 

8.4        Should any provision of this Framework Contract be or become ineffective, the legal effectiveness of the remaining provisions shall remain unaffected thereby. In the place of the ineffective provision, an effective provision that most closely approximates to the wishes of the parties shall be deemed to have been agreed.

 

8.5        In case of any difference in the interpretation of the texts of this contract in German and English, the German version shall prevail.

 

9            Notice concerning data protection, confidentiality

 

9.1        i-ROM will handle all information provided by the Licence Holder with the same care it gives to its own confidential documents.

 

9.2        To the extent that i-ROM engages a sales partner in the implementation of the contract and the Licence Holder provides this sales partner with information and data, the provisions of this clause shall also apply accordingly to the sales partner.

 

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