Special Licence Terms

1.           Scope

1.1       For the licensing, in business transactions only the SPECIAL LICENSE TERMS of corpus.e AG, Senefelderstr. 8, 70178 Stuttgart, Germany, registered office of the company: Stuttgart, District Court Stuttgart HRB 21610, VAT DE213472986, Chairman of the Supervisory Board: Prof. Dr. Jörg Eberhardt, Managing Director: Dirk Rutschmann (hereinafter: ”licensor”) apply unless otherwise agreed. Other contractual conditions of the licensee are not part of the contract, even if they are not expressly contradicted.

1.2       Even if no further reference is made to the future conclusion of similar contracts, these SPECIAL LICENSE TERMS shall apply in their current version when the declaration of the licensee or orderer is submitted, unless the contracting parties agree otherwise in writing.

1.3       These SPECIAL LICENSE TERMS are only applicable to contracts between entrepreneurs within the meaning of § 14 BGB.

1.4       The licensor points out that the licenses are distributed exclusively by distributors. The licensor also authorizes the distributor to enter into a license and service agreement which also relates to these SPECIAL LICENSE TERMS, points out however that these SPECIAL LICENSE TERMS contain only provisions related to the licenses of the licensor and the distributor is responsible for all other rights and obligations. In particular, for delivery, liability, warranty, pricing, and support, the distributor and licensee make agreements separate and independent from the licensor.

 

2.           Subject of the license

2.1       The licensor grants the licensee a license to use the computer programs, data and other software referred to in the license and service contract, the licensor (hereinafter: “contractual software”). The contractual software is provided on a temporary basis not sold. The licensor remains the owner of the contractual software. The license includes the non-exclusive and non-transferable right to use the software under the following conditions.

2.2       The contractual software is provided to the licensee in object code. The contractual software includes any documents that the licensee may have possibly in digital form, as well as all other data transmitted with the contractual software online (in particular files and databases). Programs, data and documentation are summarized below as “licensed material”.

2.3       The licensed material includes all versions of the contractual software and any other licensed material that the licensor provides to the Licensee for the duration of the contract, including updates and upgrades. Upgrades for the purposes of this contract are an advanced version of the contractual software that contains significant new features compared to the previous version.

 

3.           Scope of use

3.1       The licensee is entitled to use the licensed programs for its own use as part of its business operations. The right to use of a license is exclusively for use on a device on which the contractual software is used as intended (hereinafter: “analysis scanner”). However, the licensee is entitled to use the contractual product for an unlimited number of other hardware, such as computers or tablets, only for analysis and presentation purposes.

3.2       “Use” for the purposes of these license terms is any permanent or temporary, total or partial copying (copying) by loading, displaying, expiring, transferring to a memory or storing the contractual software for the purpose of its execution. Use also includes the execution of said acts for the purpose of observation, investigation or testing of the licensed programs.

3.3       Since the use according to no. 3.1 is limited to only one analysis scanner, the authorization according to no. 3.1. - 3.2 applies exclusively to this one scanner (see above no. 3.1). If the analysis scanner is temporarily out of service, the licensee has the right to use the contractual software on another analysis scanner during this time. In all other cases, the use of the contractual software on another analysis scanner requires the explicit consent of the licensor.

3.4       The contractual use includes the production of backup copies of the licensed contractual software, if this is necessary for the future use of the program, the data or the entire system. If the contractual software is equipped with technical copy protection, the licensee will receive a replacement copy at short notice in the event of damage to a delivered data carrier or the files transmitted on request.

3.5       Modifications of the programs as well as error corrections are only permitted to the extent that they are necessary for the intended use of the programs. Reverse translation (decompilation) of the program code into another form of presentation is prohibited. An exception to this is a partial translation for the purpose of establishing the interoperability of an independently created computer program with a licensed computer program or with other computer programs under the restrictions specified in § 69e UrhG.

3.6       The licensee is not entitled to use the services specified in para. 3.1 - 3.5 to third parties or to grant third parties respective rights of use.

 

4.        Protection of the licensed material

4.1       Without prejudice to the provisions of no. 2 and 3, the licensor retains all rights to the licensed material, including all copies or partial copies thereof made by the licensee.

4.2       The licensee undertakes to keep unchanged the proprietary notices contained in the licensed material, such as copyright notices and other legal reservations, as well as to take it over in all copies of the licensed material produced in full or in part by the licensee.

4.3       The licensee shall keep records of copies or partial copies of the licensed material made by it in accordance with the contract and shall provide information on request.

4.4       The licensee undertakes not to make the licensed material available to third parties without the express written consent of the licensor, either in its original form or in the form of complete or partial copies. This also applies to the case of a complete or partial sale or dissolution of the licensee’s business. Employees of the licensee or other persons are not considered third parties as long as they stay with the licensee for the contractual use of the license material. Any use of the contractual software on behalf of or for the purposes of the licensee by third parties outside the licensee's business premises (outsourcing) requires the prior written consent of the licensor.

4.5       The licensee shall completely delete the licensed material stored on data storage devices or other hardware prior to the destruction, sale or otherwise transfer of the same.

4.6       The licensee has the right to use an upgrade of the licensed material licensed to it as contractually agreed or to renounce such use. If it decides to use it, it is obliged to return the previously used version of the license material and all copies and partial copies thereof to the licensor three months after commencement of productive use of the new version and to delete them completely if they are stored on data media, data storage or other hardware of the licensee. The retention of an archive copy requires a written agreement.

 

5.           Limitations of liability

5.1       In the case of ordinary negligence, the licensor shall be liable only for damages, irrespective of the legal grounds, insofar as these are caused by a culpable breach of an essential contractual obligation, namely an obligation whose breach jeopardizes the achievement of the purpose of the contract and/or the fulfillment of which enables the proper performance of the contract in the first place and which the contractual partner may regularly rely on. The liability according to this no. 5.1 for ordinary negligence is also limited to the foreseeable and contract-typical damage, with whose emergence each contracting party had to expect at the conclusion of the contract due to the circumstances known at that time.

5.2       The licensor is liable without limitation for damages resulting from gross negligence or intent.

5.3       The strict liability of the licensor according to § 536a para. 1, 1. Old. BGB for existing defects at the time of application of these SPECIAL LICENSE TERMS is excluded. The licensor is not liable for the lack of commercial success of the licensee.

5.4       The licensor is liable for the loss of data and its restoration in accordance with no. 5.1 - 5.3 only insofar as such a loss could not have been avoided by appropriate data protection measures on the part of the licensee.

5.5       The limitations of liability according to no. 5.1 - 5.4 shall apply mutatis mutandis in favor of the employees and agents of the licensor.

5.6       The licensor's liability for damages caused by intentional acts, as well as for claims under the Product Liability Act due to the lack of warranted and/or guaranteed properties, quality and/or guarantees of durability and/or damages resulting from injury to life, body or health remains unaffected.

 

6.           Data protection

6.1       The licensee is responsible for the data processed during the use of the data within the meaning of Art. 4 (7) of the European General Data Protection Regulation (GDPR).

6.2       Insofar as the licensor can access personal data of the licensee, in its area, as well as personal data of the (potential) consumers and employees of the licensee, the licensor acts exclusively as a commissioned processor and the may process the personal data only for the implementation and improvement and optimization of the contractual product. The licensor shall follow the instructions of the licensee for the handling of this personal data. The licensee is responsible for any adverse consequences of such instructions. The licensee is obliged to fulfill the commissioned processing agreement of the licensor in accordance with Art. 28 GDPR. In addition, the licensee shall inform the data subjects about the processing by the licensor in accordance with Art. 12 ff. GDPR.

6.3       The licensee remains the responsible controller both generally in the order relationship as well as within the meaning of data protection law pursuant to Art. 4 (7) GDPR. If the licensee processes personal data in connection with this contract, in particular data of the (potential) consumers, it is responsible for ensuring that all legal, in particular data protection, regulations are adhered to. In the event of a breach, the licensee indemnifies the licensor from claims of third parties.

6.4       The licensee is responsible to the data subjects for the processing of the personal data, unless the licensor is responsible for any claims of the data subjects due to a breach of duty attributable to the licensor. The licensee shall responsibly examine, process and respond to any inquiries, requests and claims of the data subjects. This also applies if a data subject makes any inquiries, applications and claims directly against the licensor. The licensor shall support the licensee within the scope of its legal obligations or the duties to cooperate under the commissioned processing agreement.

6.5       The licensor warrants that personal data will be processed by the licensee or about the data subject only in the territory of the Federal Republic of Germany, in a Member State of the European Union or in another Contracting State to the Agreement on the European Economic Area, as far as a deviating agreement has been made.

 

7.           Term

The applicability of these SPECIAL LICENSE TERMS is the same as the term of the separate license and service contract to be concluded.

 

8.           Statute of limitations, side agreements, final provisions

8.1       For the commencement of the limitation period and the deadlines of the limitation periods, the relevant statutory provisions shall apply.

8.2       These SPECIAL LICENSE TERMS contain all agreements between the licensor and the licensee. Additional agreements do not exist. Changes or additions must be made in writing. This also applies to a waiver of this written form requirement.

8.3       If the licensee is a merchant within the meaning of § 1 HGB or a corporation under public law, the place of jurisdiction is the registered office of the licensor (currently: Stuttgart). The licensor is however entitled to take legal action against the licensee at the court of its registered office.

8.5       Place of performance is the registered office of the licensor (currently: Stuttgart).

8.6       For the contractual relationships between the licensor and the licensee, including their interpretation and implementation, the law of the Federal Republic of Germany applies, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

8.7       Should individual provisions of these SPECIAL LICENSE TERMS be invalid, this shall not affect the validity of the remaining provisions of the contract. The contracting parties undertake to replace the invalid provisions with a substitute provision that comes as close as possible to the intended purpose of the invalid provision, taking into account the mutual interests.

 

AS OF: August 2019



GENERAL TERMS AND CONDITIONS OF SERVICE of the Distributor

1.           Scope

1.1       For the service and sale of software, for services agreed under the purchase contract and for pre-contractual obligations of the distributor specified in the service and license agreement (hereinafter: “distributor”) in the course of business only these GENERAL TERMS AND CONDITIONS OF SERVICE apply unless otherwise agreed. Other contractual conditions are not part of the contract, even if they are not expressly contradicted. Exceptions to this are the SPECIAL LICENSE TERMS of corpus.e AG, Senefelderstr. 8, 70178 Stuttgart, Germany, registered office of the company: Stuttgart, District Court Stuttgart HRB 21610, VAT DE213472986, Chairman of the Supervisory Board: Prof. Dr. Jörg Eberhardt, Managing Director: Dirk Rutschmann (hereafter: “licensor”), as amended.

1.2       Even if no further reference is made in the future conclusion of similar contracts, only these GENERAL TERMS AND CONDITIONS OF SERVICE and the SPECIAL LICENSE TERMS of the licensor apply in their current version when the licensee’s declaration is made, unless the contracting parties agree otherwise in writing.

1.3       These GENERAL TERMS AND CONDITIONS OF SERVICE are only applicable to contracts between entrepreneurs within the meaning of § 14 BGB.

 

2.           Subject of the contract

2.1       The distributor sells to the licensee a license to use the computer programs, data and other software specified in the license and service contract, as manufactured by corpus.e AG, Stuttgart (hereinafter: “contractual software”). The contractual software is provided on a temporary basis not sold. The licensor remains the owner of the contractual software.

2.2       The terms of the license, i.e. in particular the description of the licensed item, the scope of use as well as the protection of the license material are set out in the SPECIAL LICENSE TERMS of the licensor.

 

3.           Delivery

3.1       The licensee receives in each case the current version of the contractual software as a download together with the current license material. The licensee is responsible for the installation of the contractual software itself.

3.2       Updates and upgrades of the licensed material will be made available to the licensee within a reasonable period of time after their availability. If it makes use of the offer, the delivery shall be made in the manner described in no. 3.1.

 

4.           Fees

4.1       The license fees are specified in the license and service contract and are payable monthly, quarterly or annually.

4.2       The fees are due at the beginning of the respective calculation period. For sub-periods, the fee shall be charged pro rata on the basis of a 30-day month. All fees are payable without deduction within ten days. The VAT tax is calculated separately.

4.3       At the earliest after the expiration of 24 months, the licensor may make a change to the license fees and the calculation periods at its discretion. The licensee shall be notified in writing three months in advance.

 

5.           Warranty

5.1       The distributor shall provide a state-of-the-art description of services for the respective contractual software provided by it, indicating the intended use and the terms of use of the contractual software.

5.2       The distributor is obliged to release the licensed material free from defects that do not simply prevent or reduce its suitability for contractual use in a minor way. In this respect, the distributor warrants that the licensed material, as provided to licensee, will be suitable for use in accordance with the contract in conformity with the service description available to the licensee prior to the conclusion of the contract.

5.3       In the case of significant deviations from the service description, the distributor is entitled to rectify the defect and, if this is not associated with unreasonable expenses, is also obligated to do so. If the distributor does not succeed in eliminating the deviations from the service description within a reasonable period of time or to work around the deviations in order to enable the licensee's contractual use of the program, the licensee may demand a reduction of the license fees or the terminate license for the program without notice.

5.4       The licensee is obliged to provide the distributor with verifiable documents on the nature and occurrence of deviations from the service description and to assist in the limitation of faults.

5.5       The warranty does not extend to defects caused by deviations from the terms of use provided for the contractual software and specified in the service description.

 

6.           Support

6.1       The distributor shall provide the licensee with a free Hotline Service for troubleshooting during office hours, Monday through Friday, through which licensee may request advice by telephone or by e-mail on the elimination of any self-remediable faults. The prerequisite for this is the use of a valid version of the licensed material as well as the provision of error documentation by the licensee. A version is only valid if the support for this version of the contractual software has not been officially terminated in respect of a newer version of the contractual software provided to the licensee by means of a corresponding general, at least 3-month advance notice from the distributor. For the rest, the provisions of no. 7 apply.

6.2       In the event of detection, limitation and reporting of faults or other defects, the licensee must observe the application documentation and any instructions of the distributor or the licensor that are part of the contractual software. The licensee shall take the necessary measures to determine, limit and document the faults or other defects as far as is reasonable.

6.3.      Upon receipt of the fault message at the distributor's hotline service, remedial action shall be taken by telephone or by sending information or providing documentation, such as troubleshooting or circumvention information, or rectified program parts.

6.4.      The documents provided to the licensee as part of the support become part of the licensed material within the meaning of no. 2 and as such are subject to the terms of this contract.

6.5.      Other services, such as the training of employees of the licensee or adaptations of the contractual software to the special conditions of the licensee, require the conclusion of a separate special contract for this purpose.

 

7.           Terms of use

7.1       The license material provided to the licensee has been developed for use on special analysis scanners. The use of the contractual software is only permitted on or in connection with an analysis scanner.

7.2       When using the licensed material without complying with the terms of use according to no. 7.1, the obligation to provide warranty according to no. 5 is not applicable.

 

8.           Limitations of liability

8.1       In the case of ordinary negligence, the distributor shall be liable only for damages, irrespective of the legal grounds, insofar as these are caused by a culpable breach of an essential contractual obligation, namely an obligation whose breach jeopardizes the achievement of the purpose of the contract and/or the fulfillment of which enables the proper performance of the contract in the first place and which the licensee may regularly rely on. The liability according to this no. 8.1 for ordinary negligence is also limited to the foreseeable and contract-typical damage, with whose emergence the licensee had to expect at the conclusion of the contract due to the circumstances known at that time. The liability is limited in amount to twice the annual license fees.

8.2       The distributor is liable without limitation for damages resulting from gross negligence or intent.

8.3       The strict liability of the distributor under § 536a para. 1, 1. Old. BGB for defects already existing at the time of conclusion of the contract is excluded. The distributor is not liable for the lack of commercial success of the licensee.

8.4       For the loss of data and its restoration, the distributor is liable in accordance with no. 8.1 - 8.3 only insofar as such a loss could not have been avoided by adequate data backup measures on the part of the licensee.

8.5       The limitations of liability pursuant to no. 8.1 - 8.4 shall apply mutatis mutandis in favor of the employees and agents of the distributor.

8.6       The liability of the distributor for damages caused by intentional acts, as well as for claims under the Product Liability Act due to the lack of warranted and/or guaranteed properties, quality and/or guarantees of durability and/or damages resulting from injury to life, body or health remains unaffected.

 

9.           Property rights of third parties

9.1       The distributor shall defend the licensee against any and all claims arising out of a breach of any intellectual property right or copyright and/or other proprietary rights arising out of the contractually compliant use of the licensed material. The distributor takes over any costs and damages placed on the licensee by the court provided the licensee has promptly notified the distributor of such claims in writing and all defensive measures and settlement negotiations remain reserved for the distributor.

9.2       If claims against the licensee pursuant to no. 9.1 have been asserted or expected, the distributor may, at its own expense, ensure that the licensed material is modified or exchanged to a reasonable extent for the licensee. If this or the acquisition of a right of use is not possible with reasonable effort, each contracting party may terminate the license for the relevant program without notice if the license material infringes the intellectual property rights of third parties. In this case, the distributor is liable to the licensee for the damage resulting from the termination in accordance with no. 8.

9.3       The distributor has no obligations if the claims according to no. 8.1 are based on programs or data provided by the licensee, that the program and any data contained therein have not been used in a valid, unmodified original version provided by the distributor or licensor, or under conditions other than those specified in the terms of use.

 

10.        Data protection

The licensee is responsible for the data processed during the use of the data within the meaning of Art. 4 (7) of the European General Data Protection Regulation (GDPR). The distributor derives its rights to distribute the products from the licensor. The distributor undertakes to comply with the applicable data protection regulations, in particular those of the GDPR and the German Federal Data Protection Act (BDSG). The distributor points out that it does not come into contact with the personal data of the consumer and that the licensor acts as a commissioned processor for the licensee.

 

11.        Termination, return and cancellation of licensed material

11.1     The licensee may terminate the license for individual contractual products or the entire license and service contract in writing or in text form with a notice period of 3 months, but no earlier than 24 months after conclusion of the contract at the end of the current calculation period.

11.2     The distributor may terminate this contract in writing or in text form at the earliest after twelve months with a notice period of three months for the general revision of the contractual terms.

11.3     The contract may be terminated by both parties for good cause without notice.

11.4     Upon the effective date of a termination, regardless of when and why, the licensee is obliged to return the original and all copies and partial copies of the licensed material to the distributor. In the event that licensed material is recorded on the licensee’s data media or scanners, the destruction or complete deletion of the recording shall take place in lieu of the return; this destruction or deletion shall be confirmed in writing by the licensee to the distributor.

11.5     If the licensee replaces a terminated program with an upgrade provided by the licensor and offered to the distributor, it is entitled to retain the terminated program for up to three months as a backup reserve. The retention of an archive copy requires a written agreement.

 

12.        Statute of limitations, side agreements, final provisions

12.1     For the commencement of the limitation period and the deadlines of the limitation periods, the relevant statutory provisions shall apply.

12.2     These GENERAL TERMS AND CONDITIONS OF SERVICE, as well as the license and service contract, contain all agreements between the distributor and the licensee. Additional agreements do not exist. Changes or additions to this contract must be made in writing. This also applies to a waiver of this written form requirement.

12.3     If the licensee is a merchant within the meaning of § 1 HGB or a corporation under public law, the place of jurisdiction is the registered office of the distributor. The distributor is however entitled to take legal action against the licensee at the court of its registered office.

12.4     Unless otherwise stated in the order confirmation, the place of performance for the services of the distributor is its registered office. For payment obligations, the registered office of the distributor is the place of performance.

12.5     For the contractual relationships between the distributor and the licensee, including their interpretation and implementation, the law of the Federal Republic of Germany applies, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

12.6     If individual provisions of the license and service contract as well as these GENERAL TERMS AND CONDITIONS OF SERVICE should prove invalid, this shall not affect the validity of the remaining provisions of the contract. The contracting parties undertake to replace the invalid provisions with a substitute provision that comes as close as possible to the intended purpose of the invalid provision, taking into account the mutual interests.

  

AS OF: August 2019