subject matter of the contract

• The purchase of any software by the purchaser identified in the order from Tibek and the ordering of software maintenance services are subject to these Software Purchase and Maintenance License Terms (“License Terms„).
• Unless expressly agreed otherwise, the program package purchased from Tibek consists of the computer program “SmartWOP” and the associated documentation (electronic user manual), hereinafter referred to as “software" designated.
• By using the software, the purchaser is supported in the design of specific furniture constructions and the creation of his own processing programs with specific processing instructions for the manufacture of these wood products on certain CNC woodworking machines listed in the service description.
• The software maintenance services include the provision of updates for the current version of the software purchased under these license conditions. The maintenance of computer hardware is not included in the software maintenance.
• These license terms apply exclusively to the sale of software to and the provision of software maintenance services to entrepreneurs within the meaning of Section 14 of the German Civil Code (“Civil Code„).

Software purchase section

2. transfer of the software

• The software is provided to the purchaser on a permanent basis. According to the agreement, the software is provided via downloads. The download link will be sent to support@tibek.de made available.
• The serial number for activating the software will be sent to the purchaser by email. The purchaser must keep the serial number in a safe place for future use.
• After downloading and installing, activation is initiated by entering the serial number when the application is started for the first time. This process is usually carried out fully automatically and an activation code is transmitted. If the process is prevented - for example by a firewall or the purchaser himself - the activation code can be generated manually via the web interface and entered for activation.

3. reproduction rights and backup copies

• The purchaser may download the software from Tibek's homepage and save it to the mass storage of his computer. In addition, he may copy the software insofar as the respective copy is necessary for the use of the software. The necessary copies include in particular the installation of the computer program and the loading of the computer program into the main memory.
• The purchaser may not make any further copies, including printing out the program code or printing or photocopying the entire documentation or significant parts thereof.
• The software is protected from unauthorized copying by a license server. To query the license authorization, the purchaser's hardware must be regularly connected to the Internet. The purchaser allows Tibek access to the hardware for this purpose. When querying the license authorization, the following information is collected: time of the query, serial number of the software, license type, version name, IP address of the requesting computer, and hardware ID.
• If online activation of the software is not possible for reasons for which the purchaser is responsible, the purchaser can request a USB dongle and a computer program specially programmed for use with the dongle to operate the software for a fee. The same applies if the purchaser plans to use the software in a network. In the event of a malfunction that is not the fault of the purchaser, the purchaser can request a replacement in return for sending the dongle. The dongle is an inseparable part of the software. The loss or theft of the dongle is equivalent to the loss or theft of the software. Neither Tibek nor its representatives are obliged to pay for stolen, lost or otherwise missing dongles.
• The use of the software in a virtual environment (ie, virtual machine or computer) is permitted, but requires an active Internet connection from the customer.

4. multiple uses and network use

• The purchaser may use the software on any suitable hardware available to him. If the purchaser changes the hardware, he must delete the software from the previously used hardware and request a new activation from Tibek or through a Tibek representative.
• Simultaneous storage, storage or use on more than one hardware is not permitted. If the purchaser wants to use the software on several hardware configurations at the same time, for example by several employees or on a second computer, he must purchase a corresponding number of additional software.
• The use of the software provided within a network or other multi-station computer system is not permitted. If the purchaser wishes to use the software within a network or other multi-station computer system, he must pay Tibek or a representative of Tibek a special network fee, the amount of which is also determined by the number of users connected to the computer system. Tibek or a representative of Tibek will inform the purchaser of the network fee to be paid in each individual case as soon as the purchaser has notified Tibek in writing of the planned network use, including the number of connected users. Use in such a network or multi-station computer system is only permitted after the network fee has been paid in full.

5. decompilation and program changes

• The retranslation of the provided program code into other code forms (decompilation) as well as other types of re-engineering the various stages of production of the software (reverse engineering), including program modification, are not permitted. The legally permissible uses according to Section 69 e of the German Copyright Act are permitted without the consent of Tibek.
• The removal of copy protection, in particular dongle protection or similar protection mechanisms, or the impairment of the license server's access to the software and hardware used is not permitted.
• Copyright notices, serial numbers and other features serving to identify the program may not be removed or changed under any circumstances. The same applies to a suppression of the screen display of corresponding features.

6. resale and subletting

• The purchaser may permanently sell or give away the software, including the activation code, the user manual and other accompanying material, to third parties, provided that the purchasing third party agrees that these terms and conditions will continue to apply to them. In the event of transfer, the purchaser must hand over all copies of the program to the third party, including any backup copies that may exist, or destroy any copies that have not been handed over. As a result of the transfer, the original purchaser's right to use the program expires. The original purchaser is obliged to comply with the information obligation in Section 14 of these license terms and conditions.
• The purchaser may transfer the software, including the user manual and other accompanying material, to third parties for a limited period of time, provided this is not done by way of rental for commercial purposes (e.g. application service providing, software as a service, etc.) or leasing and the third party agrees to the continued validity agrees to the present contractual conditions and the transferring purchaser hands over all program copies including any existing backup copies or destroys the copies that have not been handed over. For the time the software is transferred to the third party, the transferee has no right to use the program himself.
• The purchaser may not transfer the software to third parties if there is reasonable suspicion that the third party will violate the terms of the contract, in particular by making unauthorized copies. This also applies with regard to employees of the purchaser.
• The transfer of the software to third parties does not create any obligation for Tibek to transfer or continue software maintenance. The third party must conclude a new support and maintenance contract with Tibek. The minimum contract term of such a new support and maintenance contract is at least one year and is automatically extended for a further year unless terminated in good time.

7. Claims for defects in relation to the purchased software

• Defects in the software supplied (material and legal defects), including manuals and other accompanying materials, will be remedied by Tibek within the liability period of one year starting with the first download of the software after notification by the purchaser. This will be done at Tibek's discretion by eliminating the defect (repair) or by delivering defect-free software (replacement delivery). The software is not defective if the use of the software is disrupted by unauthorized third-party software. If you have any doubts about its suitability for your hardware and software environment, please ask us for authorization before purchasing. You can also find information on third-party software that is likely to cause disruptions at smartwop.de.
• In the case of a replacement delivery, Tibek is also entitled to deliver a new program version with at least the same range of functions, unless this is unreasonable for the purchaser, for example if a different operating system or more powerful hardware is required. The replacement delivery is made in the same way as the initial delivery by making the software available on Tibek's homepage and then downloading it by the purchaser. The purchaser having to familiarize himself again with a possibly modified program structure or user interface does not constitute unreasonableness.
• The claims for defects do not extend to software that the purchaser or a third party has modified without the consent of Tibek. This does not apply if the purchaser proves that this change is not the cause of the reported defect or if the purchaser has only installed new program versions made available by Tibek. In addition, the claims for defects do not extend to software that the purchaser does not use in the agreed hardware and software environment, unless the purchaser proves that this use is not the cause of the reported defect. Tibek is also not liable for defects that are due to improper operation and operating conditions or the use of unsuitable operating materials by the purchaser.
• If the defect cannot be remedied within a reasonable period of time or if the repair or replacement delivery is to be regarded as having failed for other reasons, the buyer can choose to reduce the purchase price, withdraw from the contract, demand damages or reimbursement of wasted expenses. The assertion of damages or the reimbursement of futile expenses are based on Section 12 of these license conditions.
• The repair or replacement delivery shall only be deemed to have failed if (i) Tibek has been given sufficient opportunity to repair or replace the goods without achieving the desired result, (ii) the repair or replacement delivery is impossible, (iii) the repair or replacement delivery is refused by Tibek or is unreasonably delayed, or (iv) the repair is unreasonable for other reasons.
• Except for Tibek's liability under Section 12 of these License Terms, this Section 7 of the License Terms exhaustively covers all claims for defects by the purchaser.

8. compensation for the software

• The purchaser will be invoiced for the software by Tibek or an authorized distributor.
• Unless expressly agreed otherwise, the invoice amounts are net amounts, i.e. plus statutory sales tax. The contractor will indicate the tax rate and the amount of sales tax separately on the invoice.

 

Software maintenance section

9. maintenance services, updates

• The software maintenance services of Tibek and Tibek's authorized resellers include the following services:

1. Updates to the latest program versions of the software provided under these license conditions. If additional support is required to install the updates, this will be agreed separately and billed based on the hourly rates applicable at the time.
2. The update of the electronically available user manual.

(2) The following services in particular are not included in Tibek’s contractual software maintenance services:

1. Software maintenance services that become necessary due to the use of the software on a different hardware system or under a different operating system than that provided for in these license conditions.
2. Maintenance services after an intervention by the purchaser in the program code of the software.
3. Maintenance services with regard to the cooperation of the contractual software with other computer programs.

(3) In the event of termination by the Purchaser, the right to the provision of updates pursuant to Section 9 (1) a) shall lapse one month before the end of the contract term.

(4) After expiration of the contractual relationship for software maintenance, support requests are to be directed exclusively to support@tibek.de or to the contact address of the respective authorized sales partner. It is at the discretion of Tibek or the authorized sales partner whether any errors in the software will be corrected and a new version of the software will be made available to the customer.

 

10. compensation for software maintenance

• The fee for software maintenance is due at the beginning of the contractual relationship in accordance with Section 11 of the License Terms. The fee for software maintenance is due on the first day of a new contract year.
• The fee for software maintenance will be invoiced by Tibek or an authorized sales partner and is subject to statutory sales tax. After three years, the fee for software maintenance can be adjusted to general price developments by up to 10%.

11. contract term and notice periods

• Unless expressly agreed otherwise, the contractual relationship for software maintenance begins when the software is activated and runs for an indefinite period.
• The contractual relationship for software maintenance can be terminated at the end of a contract year, but not before the end of the first full contract year. The notice period is three months. The notice of termination must be in writing (email or letter is sufficient) to Tibek or a representative of Tibek and must be received no later than the third working day of the first month of the notice period. Termination does not affect the purchase of software.
• After the end of the contractual relationship, any right to troubleshooting of the software and to telephone support expires. Notwithstanding the above, the provisions of Section 7 remain unaffected.

General contract regulations

 

12. Liability

• The purchaser's claims for damages or reimbursement of wasted expenses are based on the present clause regardless of the legal nature of the claim.
• Tibek shall have unlimited liability for damage resulting from injury to life, limb or health which is based on a negligent breach of duty by Tibek or an intentional or negligent breach of duty by a legal representative or vicarious agent of Tibek.
• In the case of other liability claims, Tibek is only liable without limitation if a guaranteed quality does not exist, as well as for intent and gross negligence on the part of its legal representatives and executive employees. For the fault of other vicarious agents, Tibek is only liable to the extent of liability for slight negligence according to these license conditions.
• Tibek shall only be liable for slight negligence if a duty is breached, the observance of which is of particular importance for the achievement of the purpose of the contract (“cardinal dutyTibek's liability for claims arising from the breach of a cardinal duty is limited to damages that are typically to be expected in connection with the service(s) used.
• In the event of a breach of a cardinal obligation within the meaning of Section 12 (4), liability is limited to five times the contract value (purchase price of the software plus an annual fee for software maintenance).
• Liability for data loss is limited to the typical recovery effort that would have occurred if backup copies had been made regularly and in accordance with the risk.
• Liability under the Product Liability Act remains unaffected (Section 14 ProdHG).

13. obligation to examine and give notice of defects

• The purchaser will examine the delivered software, including the documentation, immediately, but no later than eight working days after delivery, particularly with regard to the completeness of the data storage media and manuals and the functionality of basic program functions. Defects that are discovered or can be discovered must be reported to Tibek immediately, but no later than within a further eight working days. The complaint must contain as detailed a description of the defects as possible.
• Defects that cannot be detected during the proper inspection described must be reported immediately, but no later than eight working days after discovery, in compliance with the complaint requirements set out here.
• In the event of a breach of the obligation to examine and give notice of defects, the software shall be deemed to have been approved and delivered with regard to the defect in question.
• The rights of the purchaser remain unaffected to the extent that Tibek has fraudulently concealed the defect.

14. information obligations

• If the software is resold or given away, the purchaser is obliged to inform Tibek in writing of the name and full address of the purchaser or recipient.
• The above information obligations can also be fulfilled by sending an email to the following address: support@tibek.de
• The purchaser is obliged, upon request by Tibek, but no more than once per quarter, to carry out a license audit over the previous contract period (checking compliance with the usage rights regulations) and to provide Tibek with information on the results of the license audit. As part of the audit, the purchaser must provide information on the number of units of the software installed, provided and/or purchased by the customer (including license-relevant data, e.g. use as a physical or virtual server), as well as on the type of use. If, after the license audit, the type of use exceeds the use actually granted, the purchaser undertakes to purchase the required number of units. Tibek will invoice the purchaser for the additional units based on the prices specified in the contract.
• Tibek may require the purchaser to confirm under oath the accuracy of the information regarding the result of the license audit if he presents doubts about the accuracy of the information to the purchaser in writing.

15. retention of title

• Tibek retains title to the software and items delivered to the purchaser until all claims arising from this contractual relationship existing at the time of delivery or arising later in connection with the purchase of the software have been paid in full. To the extent that Tibek grants the purchaser rights of use to the software under this contract, the retention of title shall be replaced by the granting of a permanent right of use to the software on the condition that the purchase price is paid in full.
• If the purchaser is in arrears with payment, the assertion of the retention of title by Tibek does not constitute a withdrawal from the contract, unless Tibek expressly notifies the purchaser of this.
• If Tibek asserts the retention of title, the purchaser's right to continue using the software expires. All program copies made by the purchaser must be handed over or deleted.

16. conflict with other terms and conditions

If the purchaser also uses general terms and conditions, the contract is concluded even without an express agreement on the inclusion of general terms and conditions. If the various general terms and conditions agree in terms of content, these are deemed to have been agreed. The provisions of the dispositive law take the place of conflicting individual provisions. The same applies if the purchaser's terms and conditions contain provisions that are not included in these license conditions. If these license conditions contain provisions that are not included in the purchaser's terms and conditions, these license conditions apply.

 

17. written form

All agreements that contain a change, supplement or specification of these contractual conditions as well as special guarantees and agreements must be recorded in writing. If they are declared by Tibek's representatives or assistants, they are only binding if Tibek gives its written consent.

 

18. notice and acknowledgement

The purchaser is aware of the use of the present license conditions by Tibek. He had the opportunity to take note of their content in a reasonable manner.

 

19. choice of law

With regard to all legal relationships arising from this contractual relationship, the parties agree on the application of the law of the Federal Republic of Germany to the exclusion of the UN sales law.

 

20. jurisdiction

If the purchaser is a merchant within the meaning of the Commercial Code, a legal entity under public law or a special fund under public law, Düsseldorf is agreed as the place of jurisdiction for all disputes that arise in the course of the processing of this contractual relationship.

 

21. amendment clause

• Tibek reserves the right to change these license terms, provided that the change is reasonable for the purchaser and Tibek takes the purchaser's legitimate interests into account when making the change. Changes to the subject matter of the contract and the main performance obligations that would lead to a change in the type of contract as a whole are excluded from the right to make changes.
• Tibek is particularly entitled to change the license conditions if
• Tibek is obliged to ensure that the provision of services complies with the applicable law, in particular if the applicable legal situation changes, or
• Tibek is complying with a court ruling or an administrative decision by making the change.
• A change to the license terms at the instigation of Tibek requires that Tibek offers the intended change to the purchaser in text form (email is sufficient) at least six weeks before the proposed date of its entry into force. The purchaser's consent is deemed to have been given if he has not indicated his rejection before the proposed date of the change coming into force.
• Tibek is obliged to inform the purchaser
• in the context of a request for change, to specifically point out the approval effect of his conduct and
• to provide separate information about the changes in a prominent manner, for example by means of a synoptic comparison or by highlighting the changes in bold or by means of a supplementary sheet to the license terms.
• If the purchaser objects to the new provisions of the license terms, Tibek has the right to terminate the license terms without notice. The termination expressly does not apply retroactively to the use of the software that has already been fully granted.

 

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 License conditions for software purchase and maintenance of Tibek CNC-Technik GmbH (“Tibek”)

1. Subject matter of the contract

• The purchase of any software by the purchaser of Tibek identified in the order and the ordering of software maintenance services are subject to these License Conditions for Software Purchase and Maintenance (“Licence Conditions”).
• Unless expressly agreed otherwise, the program package purchased by Tibek consists of the computer program “SmartWOP” and the associated documentation (electronic user manual), after collectively referred to as “Software”.
• By using the software, the purchaser is supported in the design of certain furniture constructions and the creation of its own processing programs with specific processing instructions for the manufacture of these wood products on certain CNC woodworking machines listed in the service description.
• The software maintenance services include the provision of updates for the current version of the software purchased under these license conditions. The maintenance of computer hardware is not covered by software maintenance.
• These license conditions apply exclusively to the sale of software to and the provision of software maintenance services to entrepreneurs within the meaning of Section 14 of the German Civil Code (“BGB”).

Software purchase section

2. Provision of the software

• The software is provided to the purchaser on a permanent basis. As agreed, the software is provided by means of downloads. The download link will be made available upon request support@tibek.de.
• The purchaser will be informed of the serial number for activating the software by e-mail. The purchaser shall keep the serial number in a safe place for later use.
• After the download and installation, activation is initiated by entering the serial number when the application is started for the first time. This process is usually carried out fully automatically and an activation code is transmitted. If the process is prevented – for example by a firewall or the purchaser himself – the activation code can be generated manually via the web interface and entered for activation.

3. Reproduction rights and backup copies

• The purchaser may retrieve the software from the Tibek homepage and save it on the mass storage device of his computer. In addition, he may reproduce the software insofar as the respective reproduction is necessary for the use of the software. Necessary reproductions include in particular the installation of the computer program and loading the computer program into the working memory.
• The purchaser may not make any further copies, including the output of the program code on a printer or the printing or photocopying of the entire documentation or significant parts thereof.
• The software is protected against unauthorized duplication via a license server. A regular connection of the respective hardware of the purchaser to the Internet is required to query the license authorization. The purchaser authorizes Tibek to access the hardware for this purpose. The following information is collected when the license authorization is requested: Time of the request, serial number of the software, license type, version designation, IP address of the requesting computer, and hardware ID.
• If online activation of the software is not possible for reasons for which the purchaser is responsible, a USB dongle and a computer program specially programmed for the use of the dongle can be made available to the purchaser on request and for a fee in order to operate the software. The same applies if the purchaser plans to use the software in a network. In the event of a malfunction that is not attributable to the fault of the purchaser, the purchaser may request a replacement dongle to be sent to him. The dongle is an inseparable part of the software. The loss or theft of the dongle is equivalent to the loss or theft of the software. Neither Tibek nor its representatives are obliged to pay for stolen, lost or otherwise missing dongles.
• The use of the software in a virtual environment (ie, virtual machine or computer) is generally permitted, but requires an active Internet connection of the customer.

4. Multiple uses and network deployment

• The purchaser may use the software on any suitable hardware available to him. If the purchaser changes the hardware, he must delete the software from the previously used hardware and apply for a new activation from Tibek or through a representative of Tibek.
• Simultaneous storage, keeping in stock or use on more than one hardware is not permitted. If the purchaser wishes to use the software on several hardware configurations at the same time, for example by several employees or on a second computer, he must purchase a corresponding number of additional software.
• The use of the software provided within a network or other multi-station computer system is not permitted. If the purchaser wishes to use the software within a network or other multi-station computer system, he must pay Tibek directly or through a representative of Tibek a special network fee, the amount of which is also determined by the number of users connected to the computer system. Tibek or a representative of Tibek will inform the purchaser immediately of the network fee to be paid in the individual case as soon as the purchaser has informed Tibek or a representative of Tibek in writing of the planned network deployment, including the number of connected users. Use in such a network or multi-station computer system is only permitted after the network fee has been paid in full.

5. Decompilation and program changes

• The retranslation of the program code provided into other code forms (decompilation) and other types of reverse engineering of the various production stages of the software, including program modification, are not permitted. Excluded from this prohibition are the legally permitted uses in accordance with § 69 e UrhG (German Copyright Act) without the consent of Tibek.
• (2) The removal of copy protection, in particular dongle protection or similar protection mechanisms or the impairment of the license server's access to the software and hardware used, is not permitted.
• Copyright notices, serial numbers and other features serving to identify the program may not be removed or altered under any circumstances. The same applies to the suppression of the screen display of such features.

6. Resale and subletting

• The purchaser may permanently sell or give away the software, including the activation code, the user manual and other accompanying material, to third parties, provided that the acquiring third party agrees to the continued validity of these contractual terms and conditions. In the event of a transfer, the purchaser must hand over all copies of the program to the third party, including any existing backup copies, or destroy any copies not handed over. As a result of the transfer, the right of the original purchaser to use the program expires. The original acquirer is obliged to fulfill the information obligation of Section 14 of these license conditions.
• The purchaser may transfer the software, including the user manual and other accompanying material, to third parties for a limited period of time, provided that this is not done by way of rental for commercial purposes (eg application service providing, software as a service, etc.) or leasing and the third party agrees to the continued application of these contractual terms and conditions and the transferring purchaser hands over all copies of the program, including any existing backup copies, or destroys the copies not handed over. For the duration of the transfer of the software to the third party, the transferring purchaser has no right to use the program himself.
• The purchaser may not transfer the software to third parties if there is reasonable suspicion that the third party will violate the terms of the contract, in particular by making unauthorized copies. This shall also apply with regard to employees of the purchaser.
• The transfer of the software to third parties does not constitute an obligation for Tibek to transfer or continue software maintenance.The third party must conclude a new support and maintenance contract with Tibek. The minimum contract term of such a new support and maintenance contract is at least one year and is automatically extended by a further year unless canceled in due time.

7. Claims for defects in relation to the purchased software

• Defects in the delivered software (material defects and defects of title), including the manuals and other accompanying materials, will be rectified by Tibek within the warranty period of one year beginning with the first download of the software following corresponding notification by the purchaser. This will be done at Tibek's discretion either by rectifying the defect (repair) or by supplying software that is free of defects (replacement delivery). There is no defect in the software if the use of the software is disturbed by unauthorized third-party software. If you have any doubts about the suitability of the software for your hardware and software environment, please request authorization from us before purchasing. You can also find information on third-party software that is likely to malfunction smartwop.de.
• In the event of a replacement delivery, Tibek is also entitled to deliver a new version of the program with at least the same range of functions, unless this is unreasonable for the purchaser, for example if a different operating system or more powerful hardware is required . The replacement delivery is carried out in the same way as the initial delivery by making the software available on the Tibek homepage and subsequent download by the purchaser. A renewed familiarization of the purchaser with a possibly changed program structure or user guidance does not constitute unreasonableness.
• The claims for defects do not extend to software that the purchaser or a third party has modified without Tibek's consent. This does not apply if the purchaser proves that this change is not the cause of the reported defect or the purchaser has merely installed new program versions made available by Tibek. Furthermore, the claims for defects do not extend to software that the purchaser does not use in the agreed hardware and software environment, unless the purchaser proves that this use is not the cause of the reported defect. Tibek is also not liable for defects that are attributable to improper operation and operating conditions or the use of unsuitable equipment by the purchaser.
• If the defect cannot be rectified within a reasonable period of time or if the rectification or replacement delivery is deemed to have failed for other reasons, the purchaser may, at his discretion, reduce the purchase price (reduction), withdraw from the contract, claim damages or compensation for futile expenses. The assertion of claims for damages or the reimbursement of futile expenses shall be governed by Section 12 of these License Conditions.
• The rectification or replacement delivery shall only be deemed to have failed if (i) Tibek has been given sufficient opportunity to rectify or replace the goods without the desired success being achieved, (ii) the rectification or replacement delivery is impossible, (iii) the rectification or replacement delivery is refused or unreasonably delayed by Tibek, or (iv) it is unreasonable for other reasons.

(6) Apart from Tibek's liability under Section 12 of these License Conditions, this Section 7 of the License Conditions conclusively covers all claims for defects by the purchaser.

8. Payment for the software

• The remuneration for the software will be invoiced to the purchaser by Tibek or an authorized sales partner.
• Subject to an expressly deviating regulation, the invoice amounts are net amounts, ie plus the statutory value added tax. The Contractor shall show the tax rate and the amount of VAT separately on the invoice.

Section on software maintenance

 

9. Maintenance services, updates

• The software maintenance services of Tibek and Tibek's authorized sales partners include the following services:

1. Updates to the latest program versions of the software provided under these license conditions. If further support is required for the installation of the updates, this shall be agreed separately and invoiced on the basis of the then applicable hourly rates.
2. Updating the electronically available user manual.

(2) Tibek's contractual software maintenance services do not include the following services in particular:

1. Software maintenance services that become necessary due to the use of the software on a hardware system or under an operating system other than that provided for in these license conditions.
2. Maintenance services following an intervention by the purchaser in the programme code of the software.
3. Maintenance services with regard to the co-operation of the contractual software with other computer programs.

(3)     In the event of cancellation by the purchaser, the entitlement to the provision of updates in accordance with Section 9 (1) a) shall lapse one month before the end of the contract term.

(4)     After expiry of the contractual relationship for software maintenance, support requests must be sent exclusively to support@tibek.de or to the contact address of the respective authorized sales partner. It is at the discretion of Tibek or the authorized sales partner whether any errors in the software are corrected and a new version of the software is made available to the customer.

 

10. Payment for software maintenance

• The remuneration for software maintenance is due at the beginning of the contractual relationship as defined in Section 11 of the licence conditions. The remuneration for software maintenance is due on the first day of a new contractual year.
• The remuneration for software maintenance is invoiced by Tibek or an authorized sales partner and is subject to statutory VAT. After three years, the remuneration for software maintenance can be adjusted by up to 10% in line with general price trends.

11. Contract term and cancellation periods

• Unless expressly agreed otherwise, the contractual relationship for software maintenance shall commence upon activation of the software and shall run for an indefinite period.
• The contractual relationship for software maintenance can be cancelled at the end of a contractual year , but not before the end of the first full contractual year. The cancellation period is three months. Notice of cancellation must be given to Tibek or to a representative of Tibek. in text form (email or letter is sufficient) and must be received by Tibek or to a representative of Tibek no later than the third working day of the first month of the cancellation period. Cancellation does not affect the purchase of software.
• After the end of the contractual relationship, any claim to error correction of the software and to telephone support shall expire. Notwithstanding the above, the provisions of Section 7 shall remain unaffected.

 

 

 

 

 

 

General contract regulations

12. Liability

• The purchaser’s claims for damages or reimbursement of futile expenses shall be governed by this clause regardless of the legal nature of the claim.
• Tibek is liable without limitation for damages resulting from injury to life, body or health which are based on a negligent breach of duty by Tibek or an intentional or negligent breach of duty by a legal representative or vicarious agent of Tibek.
• In the case of other liability claims, Tibek is only liable without limitation in the absence of a guaranteed quality and for intent and gross negligence on the part of its legal representatives and executives. Tibek is only liable for the fault of other vicarious agents to the extent of liability for slight negligence in accordance with these licence conditions.
• Tibek is only liable for slight negligence if an obligation is breached, the fulfilment of which is of particular importance for achieving the purpose of the contract („cardinal obligation“). Tibek’s liability for claims arising from the breach of a cardinal obligation is limited to damages that are typically to be expected in connection with the service(s) utilised.
• In the event of a breach of a cardinal obligation within the meaning of Section 12 (4), liability shall be limited to five times the contract value (purchase price of the software and one year’s remuneration for software maintenance).
• Liability for data loss shall be limited to the typical restoration costs that would have been incurred if backup copies had been made regularly and in accordance with the risks involved.
• Liability under the Product Liability Act remains unaffected (§ 14 ProdHG).

 

13. Duty to examine and give notice of defects

• The purchaser will inspect the delivered software, including the documentation, immediately, but at the latest within eight working days of delivery, in particular with regard to the completeness of the data carriers and manuals and the functionality of basic programme functions. Tibek must be notified of any defects that are discovered or can be discovered during this inspection without delay, but at the latest within a further eight working days. The notification of defects must contain a description of the defects that is as detailed as possible.
• Defects that cannot be detected in the course of the proper inspection described above must be reported immediately, but at the latest within eight working days of discovery, in compliance with the complaint requirements set out here.
• In the event of a breach of the obligation to inspect and give notice of defects, the software shall be deemed to have been approved and delivered with regard to the defect in question.
• The rights of the purchaser remain unaffected if Tibek has fraudulently concealed the defect.

 

14. Information obligations

• If the software is resold or given as a gift, the purchaser is obliged to inform Tibek directly or through a representative of Tibek in writing of the name and full address of the purchaser or the recipient.
• The above information obligations can also be fulfilled by sending an e-mail to the following address: support@tibek.de
• At the request of Tibek, but no more than once per quarter, the purchaser is obliged to carry out a licence audit of the previous contractual period (verification of compliance with the usage rights regulations) and to provide Tibek with information about the results of the licence audit. As part of the audit, the purchaser must provide information on the number of units of the software installed, provided and/or purchased by the customer (including licence-relevant data, e.g. use as a physical or virtual server), as well as on the type of use. If, after the licence audit, the type of use exceeds the use actually granted, the purchaser undertakes to acquire the required number of units. Tibek will invoice the purchaser for the additional units on the basis of the prices specified in the contract.
• Tibek may require the acquirer to affirm the accuracy of the information on the result of the licence audit in lieu of an oath if it expresses doubts in writing to the acquirer as to the accuracy of the information.

15. Reservation of ownership

• Tibek retains ownership of the software and items delivered to the purchaser until full payment of all claims relating to the software purchase arising from this contractual relationship that exist at the time of delivery or arise later. Insofar as Tibek grants the purchaser rights of use to the software under this contract, the retention of title is replaced by the granting of a permanent right of use to the software on condition that the purchase price is paid in full.
• If the purchaser is in arrears with payment through his own fault, the assertion of the retention of title by Tibek does not constitute cancellation of the contract, unless Tibek expressly informs the purchaser of this.
• If Tibek asserts the retention of title, the purchaser’s right to further use the software expires. All copies of the programme made by the purchaser must be handed over or deleted.

16. Collision with other terms and conditions

If the purchaser also uses general terms and conditions, the contract is also concluded without express agreement on the inclusion of general terms and conditions. Insofar as the content of the various general terms and conditions is identical, these shall be deemed to have been agreed. Conflicting individual provisions shall be replaced by the provisions of dispositive law. The same applies in the event that the purchaser’s terms and conditions contain provisions that are not included in these licence conditions. If these licence conditions contain provisions that are not contained in the purchaser’s terms and conditions, these licence conditions shall apply.

17. Written form

All agreements containing an amendment, supplement or concretisation of these contractual conditions as well as special guarantees and agreements must be recorded in writing. If they are declared by representatives or auxiliary persons of Tibek, they are only binding if Tibek has given its written consent.

18. Notice and acknowledgement of receipt

The purchaser is aware of the use of these licence conditions by Tibek. He had the opportunity to take note of their content in a reasonable manner.

19. Choice of law

With regard to all legal relationships arising from this contractual relationship, the parties agree that the law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

20. Place of jurisdiction

If the purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Düsseldorf is agreed as the place of jurisdiction for all disputes arising in connection with the fulfilment of this contractual relationship.

21. Amendment clause

• Tibek reserves the right to amend these licence conditions insofar as the amendment is reasonable for the purchaser and Tibek takes appropriate account of the purchaser’s legitimate interests within the scope of the amendment. Changes to the subject matter of the contract and the main performance obligations that would lead to a change in the type of contract as a whole are excluded from the authorisation to make changes.
• Tibek is entitled to amend the licence conditions in particular if:
• Tibek is obliged to ensure that the provision of services complies with the applicable law, in particular if the applicable legal situation changes, or
• Tibek complies with a court judgement or an official decision with the change.
• An amendment to the licence conditions at the instigation of Tibek requires that Tibek offers the intended amendment to the purchaser in text form (e-mail is sufficient) at least six weeks before the proposed date of entry into force. The purchaser is deemed to have given its consent if it has not indicated its refusal before the proposed effective date of the amendment.
• Tibek is obliged to the purchaser
• to draw particular attention to the authorisation effect of its conduct in the context of a change request and
• to inform separately about the changes in a highlighted form, for example by means of a synoptic comparison or by highlighting the changes in bold print or by means of a supplementary sheet to the licence conditions
• If the purchaser objects to the new provisions of the licence conditions, Tibek has the right to extraordinary termination of the licence conditions. The cancellation expressly does not apply retroactively to the already fully granted use of the software.