Supplementary Contractual Conditions for the open-ended Transfer
of Standard Software in return for one-time payment
- EVB-IT Transfer Typ A –
1Object of the contract
Following provisions apply to the open-ended transfer and use of standard software* in return for a one-time payment. They do not apply to additional performance such as installation*, integration*, parameterisation*, and adaptation of the software to the needs of the Customer.
2Type and scope of delivery
2.1.The Supplier assigns to the Customer the standard software* according to the provisions in the contract.
2.2The software has to be delivered with German documentation in printed or printable form, in the absence of any provision to the contrary.
2.3The standard software* has been checked at an appropriate point in time with an up-to-date virus scanning programme. The Customer declares that the inspection has not provided any indication of default functions* in the standard software*.
2.4The proper data back-up* is incumbent upon the Customer.
3Rights of Use*
3.1The standard software* is protected by copyrights.
3.2The standard software* shall be transferred to the Customer for its intended use. The extent of the intended use as well as the nature and extent of the rights of use* result from the contract. If no other rights of use* are stipulated in the contract the Supplier grants to the Customer the following rights of use* of the standard software*:
– a non-exclusive right of use*,
– a right of use* in any system environment*,
– the transferable right of use* subject to the limitation in clause 3.5,
– the permanent and non-redeemable right of use* subject to the limitation in clause 4.
3.3 The Customer commits himself to take care by appropriate technical and organisational measures that the intended use of the standard software* is ensured.
3.4The Customer is entitled to make a copy of the standard software* for back-up purposes. Reproducing the standard software* for due data protection* is part of the intended use.
3.5If the Custmer is entitle d to transfer the rights of use to a third party and if he exercises these rights he shall impose his contractual obligations onto the third party. On such transfer the Customer´s rights of use* terminate. All existing copies of the standard software shall be deleted or returned to the Supplier. The Customer may, however, keep a copy for examination and archiving purposes if such is agreed in the contract.
3.6If rights of use* are granted to the Cutomer only for a system environment* defined in the contract, usage in any other system environment* requires the Suppliers approval. If a system environment* defined in the contract is not operative temporary usage in another adequate system environment* is permitted until the defect is remedied.
3.7The Customer commits himself not to transfer the standard software* into any other code form unless this is permitted by copyright laws.
3.8The Supplier notifies the Customer of any copy protection and usage barriers known to him.
4Extraordinary Notice of Cancellation of the Rights of Use*
4.1If the Customer severely infringes the stipulated rights of use* or intellectual property rights* of the entitled owner the Supplier may extraordinarily cancel the rights of use* of the standard software* concerned. This requires an unsuccessful warning with an appropriate time-limit by the Supplier.
4.2If the standard software* is subject to export control regulations of the Bureau of Export Administration, US Department of Commerce, the Supplier advises the Customer of this fact. If the Customer violates such export control regulations the Supplier may extraordinarily cancel the rights of use* of the standard software* concerned.
4.3In the event of cancellation the Customer shall delete the original standard software* concerned bythe cancellation, including all documentation and all copies, or return them to the Supplier. On the Suppliers request the Customer shall make a statement of deletion. The Customer is entitled to keep a copy of the standard software* for examination and archiving purposes if a corresponding agreement was concluded in the contract.
4.4All other statutory provision shall remain unaffected.
5 Payment
The total price, which is agreed upon in the contract, is the payment for all contractual services, in the absence of any provision to the contrary.
Payment is due immediately after delivery or performance of service has taken place, and the Customer has received an auccaountable invoice. This provision applies accordingly to partial deliveries and/or services, which have been agreed upon.
6Delayed performance
6.1In the event of delayed performance, the Customer can give the Supplier a reasonable deadline for performance. Upon expiration of this deadline, the Customer can withdraw from the contract wholly or in part and can demand damages instead of performance*.
Upon the Supplier's request, the Customer declares whether he withdraws from the contract because of delayed performance, or if he insists on performance. This request is to be made within the deadline in accordance with Clause 6.1, sentence 1 and within a reasonable amount of time prior to its expiration. Up until such time as the answer is received by the Supplier, the Supplier retains the right of performance. The provisions of this clause are without prejudice to Clauses 6.2 and 6.3.
6.2If the Customer claims damages instead of performance*, the Supplier's obligation to pay is limited to 8% of the total price in accordance with the contract. Any claims on the part of the Customer for loss of earnings are excluded. A flat-rate compensation for delayed performance, which has already been paid by the Supplier, will be taken in account in accordance with Clause 6.3.
6.3If the supplier defaults for more than seven calendar days, the Customer can demand a flat-rate compensation for each further day of delay* because of delayed performance. This flat-rate compensation shall amount per calendar day to 0.4% of the individual price of the delivery and/or service, with which the Supplier is in delay, however, it shall not exceed 8% of this price. The aggregate of the flat-rate compensation is limited to 8% of the total price in accordance with the contract.
The Supplier is free to prove that there were no or lesser damages.
6.4The limitations of liability do not apply in the case of intent or gross negligence, or in the case of an offence against life, limb or health.
7 Warranty
7.1The Supplier provides the Customer with the standard software* free of defects*. An unsubstantial material defect* is insignificant.
7.2In number 4 of the contract particular agreements may be concluded concerning characteristics of the performance. Such agreements do not constitute any warranties of appearance and workmanship or of durabilityin the sense of §443 Bürgerliches Gesetzbuch (German Civil Code).
7.3The Customer’s warranty claims do not cover any standard software* modified by the Customer or used by him in a system environment* not provided for in the contract unless the Customer is able to prove that such usage is not causal for the defect reported.
7.4 Precondition for warranty claims is reproducibility or ascertainability of the defects and/or deficiencies.
7.5The Customer has to notify the Supplier immediately regarding defects and/or deficiencies by specifying all information known to him and pertinent to recognition of said defects, on a form in accordance with Sample 1, Failure Report Form, provided that no other method of notification of a failure or malfunction has been agreed upon. The Customer has to take every reasonable effort to take such measures as are necessary to facilitate a determination of defects and/or deficiencies and their causes.
7.6The warranty period* is 12 months after delivery, in the absence of any provision to the contrary. The warranty period* for defects and/or deficiencies in subsequent performance of product or service performance ends with the end of the warranty period* in accordance with sentence 1 of Clause 7.6.
If the Customer gives notification of a defect and/or deficiency before the end of the warranty period* in accordance with the procedure stipulated in Clause 7.5, the warranty period of the notified defect and/or deficiency is suspended, while the Supplier, with the Customer's consent, inspects and/or subsequently fulfills the defect and/or deficiency. The warranty period* is suspended until the Supplier notifies the Customer of the result of his inspection, declares the subsequent fulfillment to be completed, or refuses to continue with subsequent fulfillment.
7.7If the Suppliers duty to remedy defects is not excluded by contract the Supplier may choose to remove the defect at his own option by immediate remedial action, evasion, or new delivery. If such is necessary, the delivery of printed or printable correction instructions for the documentation also constitutes a remedial action.
The respective latest version of the standard software* accepted by the Customer is subject to the warranty. The Customer shall accept a new version if it serves to avoid or remedy defects. The Customer is not obliged to accept a new version if such acceptance would be unreasonable for him because the new version deviates substantially from the specifications agreed in the contract. If the Customer does not accept a new version for the above reason instead of his right of subsequent performance his other rights in clause 7.7 section 3 remain unaffected.
If the Supplier does not successfully remedy the defect within a reasonable period of time, the Customer can give him a deadline. After the deadline has passed, the Customer can demand a reduction in payment or can withdraw from the contract and can, in addition, provided that the statutory prerequisites are given, demand damages. This compensation claim is limited to 8% of the value of the contract performance, which is affected by the defect and/or deficiency, however, the aggregate compensation claims because of defects and/or deficiencies may not exceed 8% of the total price in accordance with the contract.
7.8 If the Supplier’s duty of remedial action is excluded by contract the other rights in clause 7.7 section 3 shall remain unaffected.
7.9In the event of transfer of a new version of the standard software* the respective substituted version shall be destroyed or, on demand, returned to the Supplier.
7.10The limitations of liability in Clause 7.7 do not apply to claims stemming from Clause 7.2, malicious non-disclosure of a defect and/or deficiency, intent, gross negligence, or offence to life, limb or health. Any claims on the part of the Customer for loss of earnings are excluded.
8 Property right infringement
8.1If a third party claims damages from the Customer because of infringement of property rights* through the use of the delivered products and if because of this their use is impaired or forbidden, the Supplier isliable as follows:
The Supplier has the choice of either changing or replacing the delivered software at his expense in such a manner that they no longer infringe upon property rights*, however still essentially correspond to the agreed upon performance and functional characteristics in a manner that is reasonable for the Customer, or of indemnifying the Customer from paying licensing fees to the owner of the property rights and to third parties for the use of the standardsoftware.
If the Supplier does not succeed at fulfilling the aforementioned dutyat appropriate conditions he shall notify the Customer and prohibit usage by the Customer after a certain date. The Customer is obliged at the Supplier´s option to either delete the standard software* including the documentation and all copies or to return it to the Supplier. The Supplier shall reimburse the Customer for the payment less an amount in consideration for the time of usage of the standard software*.
8.2Prerequisites for the Supplier's liability in accordance with Clause 5.1 are that the Customer immediately notifies the Supplier of any claims by third parties, does not admit the alleged infringement of property rights, and either relinquishes any and all disputes, including any out of court settlements, to the Supplier or conducts these only with the Supplier's agreement and consent. Any and all necessary court and attorney fees incurred by the Customer for legal defense will be borne by the Supplier.
If the Customer discontinues the use of the products for the purposes of mitigation of damages or for other important reasons, he has to advises the third party that such discontinuation of use has no bearing on an admission of the alleged infringement of property rights.
8.3Insofar as the Customer himself is responsible for the infringement of property rights, any claims against the Supplier are excluded.
8.4Additional claims by the Customer for reasons of an infringement of property rights* of third parties are excluded. The limitations of liability do not apply in the case of intent or gross negligence, or in the case of an offence against life, limb or health.
9 Other liability
9.1Liability is conclusively stipulated for delayed performance in Clause 6, for warranty in Clause 7, and for infringement of property rights in Clause 8.
9.2 Otherwise, the Customer and the Supplier are liable to each other for damages, for which they are responsible, as follows:
9.2.1 for property damages of up to 500,000 Euro per loss-entailing event, however, not more than a total of 1.0 million Euro per contract;
9.2.2for pecuniary damages of not more than 10% of the total price of the contract. Liability for pecuniary damages is limited to a total of 500,000 Euro per contract.
Claims for loss of earnings are excluded.
In the event of data loss, the Supplier is liable only for those expenses, which arise given proper data back-up* and are then necessary for the Customer to restore the data. In the event of light negligence on the part of the Supplier, this liability occurs only if the Customer has carried out a proper data back-up* immediately prior to the action leading to the data loss* .
9.3The limitations of liability in accordance with Clause 9.2.1 and 9.2.2, paragraph 1 do not apply to claims stemming from Clause 7.2, from intentional actions, gross negligence, offence to life, limb or health, or insofar as the Product Liability Act (Produkthaftungsgesetz) applies.
10Limitation
Claims pursuant to Clauses 6, 8 and 9 lapse 3 years starting with knowledge of the cirumstances,at the latest, however, 8years after transfer.
11Data protection, confidentiality, and security
11.1The Customer ensures that the Supplier is notified of all relevant facts and circumstances beyond the statutory provisions, cognizance of which is necessary for him for reasons of data protection and confidentiality.
11.2In the absence of any provision to the contrary, before a data carrier is handed over to the Supplier, the Customer ensures that any contents, which merit protection, are deleted.
11.3The Supplier ensures that all persons, who have been charged by him with processing or fulfilling the contract, observe the statutory provisions regarding data protection and privacy. The obligation required by the data protection legislation must be obtained at the latest before beginning work for the first time, and it must be proved to the Customer upon request.
11.4The Customer can wholly or in part withdraw from the contract, if the Supplier, in accordance with Clause 9.3, taking into account the facts and circumstances in accordance with Clause 9.1, is culpable of not fulfilling his obligations within a set reasonable period of time or of violating with gross negligence or intent any data protection provisions.
11.5The Customer and the Supplier are obligated to treat all confidential information and business and trade secrets, to which they become a party within the scope of their contractual relationship, as confidential, and, in particular, to not disclose them to third parties or to utilize them for purposes other than the purposes of the contract. This also applies to the exchange of experience and/or know-how within the public sector.
12 Written form
The written form* is obligatory for the contract and any and all changes to it, any explanations, which are relevant to the contract, as well as obligations regarding information and documentation, provided that an additional form has not been agreed upon.
13 Applicable law
This contract is subject to the laws of the Federal Republic of Germany. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG*) is excluded.
14 Separability clause
Should individual provisions of this contract be or become invalid, the validity of the remaining provisions shall not be affected. The parties to this contract will then cooperate to replace any invalid provisions by such valid provisions, which correspond as closely as possible to the provisions, which are or have become invalid.
Definitions of Terms
CISG / United Nations Convention on Contracts for the International Sales of Goods.Damages instead of product or service performance / In the place of damages instead of product or service performance, reimbursement of expenses can be demanded in accordance with Section 284 German Civil Code (Bürgerliches Gesetzbuch).
Data back-up, proper / Data back-up includes all technical and / or organizational measures to ensure the availability, integrity, and consistency of systems, including the data, software programs, and procedures, which are stored on these systems and are used for purposes of processing. Proper data back-up means that the measures taken, depending on the data sensitivity, make an immediate or short-term restoration of the previous condition of systems, data, software programs, and/or procedures possible after an impairment of the availability, integrity, or consistency because of a damage-causing event has been recognized; the measures include, at the minimum, establishing and testing the capability of recovering copies of software, data, and procedures according to defined cycles and generations.
Data loss / Loss (deletion) or loss of integrity and consistency of data.
Day of delay / Each started calendar day, during which the Supplier is delaying performance after failure to meet the deadline.
Default functions / Functions that are not desired by the User threatening the availability of data, resources or services, the confidentiality of data or the integrity of data in an unintentionally or deliberately controlled manner.
Material defect / Definition "defect of quality and/or material deficiencies" in accordance with Section 434 German Civil Code (Bürgerliches Gesetzbuch).
Parameterisation / The individual adaptation of software, mostly standard software, to user needs by the adjustment of the attributes within the software.
Property rights / Intellectual property rights.
Rights of use / Rights granted by the licensor to the licensee
Software installation (installation) / To effect the successful operation of software on particular hardware according to an agreed procedure
Software integration (integration) / Connecting different software systems (standard software or individual software) to create a complete system by exchanging data and information in an active, process oriented and automated manner between the software systems that were separated beforehand.
Standard software / Software (programs, program modules, tools, etc.), which have been developed for the requirements of a majority of customers on the market and not especially by the Supplier for the Customer, including the associated documentation.
System environment / An IT-system’s technical and administrative application environment as specified in the contract and for which the Customer has released the standard software.
Warranty period / This term means the periods of limitations in accordance with the statutory provisions.
Written form / In accordance with Sections 126, 126a, 126b, 127 German Civil Code (Bürgerliches Gesetzbuch), as well as in simple electronic form.