Excerpt from the General Terms and Conditions of Net at Work GmbH
1. Object of the agreement / sale of goods law / references
1.1
The object of the agreement is the paid, temporally unlimited granting of simple, non-exclusive rights to use the NoSpamProxy standard software produced by Net at Work.
1.2
Net at Work grants the right of use in accordance with Section 1.1 by sending the customer a license key for the NoSpamProxy licenses purchased by said customer. Along with the submission of the license key, the customer is provided with installation instructions.
1.3
The sale of goods regulations apply to the agreement.
1.4
The customer allows Net at Work to name the customer and its brands for reference purposes. Net at Work shall, however, discontinue this reference usage if the customer expressly requests this in writing.
2. Copyright / scope of rights
2.01
As part of the sale of the software, Net at Work grants the customer the non-exclusive right to use the software.
The customer is not entitled to lease the software or (subject to clause 2.05) surrender it to third parties for usage or for other purposes, or grant restricted rights to it. This applies even if said third party uses the software exclusively for the purposes of the customer.
The customer shall, unless otherwise agreed, purchase a server license, together with a certain number of client licenses, and possibly further optional modules for the software. Every person who uses the customer’s e-mail system is considered a client. If a person has multiple e-mail addresses (e.g. functional addresses), they also count as only one client.
Multiple usage rights (both for servers and for clients) must be contractually agreed. Multiple usage is understood as the simultaneous installation and/or use of the software on multiple servers by the customer. Whether and to what extent the customer may also use the software with different clients results from the respective software contract. Any other use of the software by the customer also constitutes an illegal copyright violation of the terms of use.
2.02
The customer is not entitled, except in the case of the express written consent of Net at Work, to make copies of the software and documentation files provided. The right to make backup copies of the software remains unaffected.
The customer must not, (subject to clause 2.03) without the express written consent of Net at Work, pass on software, documentation, or copies thereof to any third party.
2.03
The customer may only pass on or provide software, documentation or copies of software to third parties after definitively relinquishing all of their own usage rights. The customer grants Net at Work the right to check for compliance with these usage provisions at its premises at any time during business hours.
2.04
The customer acquires the right to use the program version of the software product that is current at the time the agreement is concluded or the initial installation.
2.05
Decompilation of the software is not allowed. If the customer requires interface information in order to maintain interoperability pursuant to Section 69e of the German Copyright Act (UrhG), Net at Work will upon request provide the information. Only if Net at Work does not comply with this request within a reasonable time is the customer allowed, for the purpose of interface analysis, to decompile the software components required for this analysis.
2.06
A violation of the terms of use of Section 2 is an offense under Section 106 of the German Copyright Act (UrhG) and can be officially prosecuted by the public prosecutor’s in the event of particular public interest or lodging of criminal charges.
2.07
For each case of culpable violation of the above terms of use, the customer agrees to pay a lump sum compensation amounting to 50% of the purchase price paid for the software. The customer remains entitled to demonstrate that Net at Work has incurred no or significantly less damage than the specified lump sum.
Net at Work expressly reserves the right to assert additional concretely demonstrated damage.
2.08
The above provision shall also apply in the event that the customer uses the software in a manner that surpasses the multiple usage they are entitled to.
3. Counter-rights
3.01
The customer can only offset in case of undisputed or legally established claims.
3.02
The customer has – except in cases subject to clause 3.01 – no rights of retention.
The rights pursuant to Section 320 of the German Civil Code (BGB) remain, if and to the extent Net at Work fails to meet its own warranty obligations
4. Warranty
Warranty in these terms and conditions means: claims due to poor performance based on delivery of defective goods or provision of defective work.
4.01
The special legal regulations for final delivery of the goods to a consumer remain unaffected by the limitation of liability in this Section 4 (supplier recourse pursuant to Sections 478, 479 of the German Civil Code [BGB]).
4.02
If the customer does not comply with their inspection and notification obligations, the liability of Net at Work for the unreported defect is excluded.
4.03
The general limitation period for claims arising from material defects and defects in title is 12 months from the date of delivery or, if acceptance has been agreed, from the date of acceptance.
The special statutory provisions relating to limitation remain unaffected (in particular Sections 438 para. 1 no. 1 and no. 2, para. 3, 444, 479 of the German Civil Code and Section 634a para. 1 no. 2 and no. 3, para. 3 of the German Civil Code [BGB]).
4.04
The limitation period of 12 months also applies to contractual and non-contractual claims for damages based on a defect of the goods.
This reduction of the statute of limitations does not, however, apply
if the damage was caused by intent or gross negligence of Net at Work or their representatives or vicarious agents;
for damages resulting from injury to life, limb and health;
in case of delay, if a fixed delivery date has been agreed;
in case of fraudulent concealment of a defect;
in case of assumption of a guarantee and/or the procurement or producer’s risk within the meaning of Section 276 of the German Civil Code (BGB) by Net at Work;
in cases of mandatory statutory liability, in particular under the Product Liability Act.
The customer bears no burden of proof in connection with the above provisions.
4.05
If the warranty period is suspended or interrupted because of work conducted or replacement deliveries made by Net at Work, this suspension or interruption shall only relate to the functional unit affected by the delivery of replacements or repairs.
4.06
In case the customer is entitled to subsequent performance, Net at Work shall decide whether this is to be effected by repairing the faults (repair) or by means of a (replacement) delivery of fully-functional goods. The right to refuse subsequent performance under the statutory prerequisites shall remain unaffected.
4.07
We assume no liability for damages that are not the responsibility of Net at Work. This includes damage caused by the following reasons: inappropriate or improper use, faulty installation or commissioning by the customer or by third parties, unless Net at Work is found to be at fault for these.
4.08
Net at Work assumes no warranty for customer-supplied components. The customer alone shall be responsible for the suitability and condition of such components, unless expressly agreed to the contrary.
4.09
In the case the customer fails to follow the installation instructions and the operation manual, it shall be assumed that resulting damage can be attributed to this. In this case, the customer shall bear the burden of demonstrating and proving the contrary.
4.10
Net at Work has the right to make subsequent performance dependent on whether the customer has paid the due purchase price. The customer is however entitled to retain a portion of the purchase price that is reasonable in relation to the defect.
4.11
Work on goods delivered by Net at Work or other performances provided by Net at Work shall only be considered as defect rectification work or rework
if Net at Work has expressly recognized the defectiveness
or if notice of defects can be shown to have been provided
and if said notice of defects is justified.
Without these prerequisites, such work is to be considered as a special performance.
4.12
Generally, all rework or replacement deliveries are provided as special performances by Net at Work if they are not explicitly performed in recognition of a legal obligation.
4.13
Net at Work can also meet its warranty obligation in the event of program errors or the like by offering the customer a solution that eliminates the effects of the error (workaround). If doing so does not substantially impair the program’s user-friendliness, further claims by the customer are excluded.
4.14
The expenses which are necessary for the purpose of inspection and subsequent performance, in particular transport, route, work and material costs (not including installation and dismantling costs) shall be borne by Net at Work if there is actually a defect. Otherwise, Net at Work is entitled to ask the customer to reimburse the costs incurred due to the unjustified request for the rectification of a defect (in particular testing and transportation costs), unless the lack of defectiveness was not discernible to the customer.
4.15
The customer has to provide Net at Work with the necessary time and opportunity to perform rework and replacement deliveries owed due to warranty obligations. Only in urgent cases that endanger the operational safety and to avoid unreasonably greater damages, whereby Net at Work must be informed immediately (if possible in advance), or when Net at Work is in delay with rectifying the defects, does the customer have the right to rectify the defect himself or have a third party do the repair and to demand repayment for the required costs.
4.16
If the subsequent performance has failed or a reasonable deadline, which is to be set by the customer, for the subsequent performance has expired unsuccessfully (Section 323 para. 1 or Section 281 para. 1 of the German Civil Code [BGB]) or it is dispensable according to the statutory regulations (Section 323 para. 2 or Section 281 para. 2 BGB) or can be refused by Net at Work pursuant to Section 439 para. 3 BGB or Section 635 para. 3 BGB or is unreasonable for the customer, the customer can withdraw from the agreement. In case of a minor defect, however, there is no right of withdrawal.
4.17
The customer is only entitled to a price reduction if Net at Work consents to this.
4.18
Customer claims for damages or reimbursement for futile expenses are also excluded in case of defects in accordance with clause 5.01 and exist only in the cases subject to clause 5.02.
5. Other liability
5.01
Unless stated otherwise in these general terms and conditions, any claims for damages or expenses by the customer against Net at Work on whatever legal grounds are excluded subject to clause 5.02 below.
This applies in particular to claims for damages in tort (e.g. Section 823 of the German Civil Code [BGB]).
If the liability is excluded or limited, this shall also apply to the personal liability of Net at Work’s staff, workers, employees, representatives and vicarious agents.
5.02
The limitations of liability in these general terms and conditions shall not apply
if the damage was caused by intent or gross negligence of Net at Work or their representatives or vicarious agents;
in case of culpable violation of essential contractual obligations, in which case the claim for damages shall be limited to the damage foreseeable and typical for this type of agreement at the time the agreement was concluded. Material contractual obligations are obligations that protect the legal positions of the contracting party which are material to the agreement and which have to be granted to said party under the contract in terms of subject matter and purpose; material contractual obligations are also obligations whose fulfilment makes the due performance of the contract possible in the first place, where the customer regularly relies on and may rely on compliance with such obligations;
for damages resulting from injury to life, limb and health;
in case of delay, if a fixed delivery date has been agreed;
in case of fraudulent concealment of a defect;
in case of assumption of a guarantee and/or the procurement or producer’s risk within the meaning of Section 276 of the German Civil Code (BGB) by Net at Work;
in cases of mandatory statutory liability, in particular under the Product Liability Act.
The customer bears no burden of proof in connection with the above provisions.
5.03
The customer can only withdraw from or cancel the agreement due to a breach of duty which does not consist in a defect, if Net at Work is responsible for said breach of duty. A free right of termination of the customer (in particular according to Sections 651, 649 of the German Civil Code [BGB]) is excluded. Otherwise the statutory requirements and legal consequences shall apply.
6. Place of performance and fulfillment
6.01
The place of performance and fulfillment for the services to be provided by Net at Work is always the business premises of Net at Work.
6.02
The place of performance for all services to be provided by the customer is the headquarters of Net at Work.
7. Place of jurisdiction and substantive law
7.01
Paderborn is the place of jurisdiction for disputes arising out of or in connection with the contractual relationship between the customer and Net at Work. Net at Work also has the right, in the above case, to file an action against the contracting partner at the latter’s respective headquarters.
7.02
The law of the Federal Republic of Germany shall apply, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
8. Final provision
If a provision of these license conditions or a provision that is later incorporated therein is or becomes invalid, void unenforceable in whole or in part, or should a loophole become apparent in these terms and conditions, the validity of the remaining provisions will not be affected. Section 306 para. 2 and 3 of German Civil Code (BGB) shall remain unaffected. |
