between Peter Killert, www.code-is-poetry.de hereinafter referred to as Licensor (LG)
You, the customer, hereafter referred to as Licensee (LN)
on the use of a software called "CONSILIUM", hereinafter also referred to as "contract software".
The LG distributes the software "CONSILIUM" for the PC, which was developed in his own company. The parties agree that this program enjoys copyright protection. LN acquires from LG a standard version of the scheduler CONSILIUM. The software is used to create, manage and distribute rosters.
(1) The subject of this contract is the permanent transfer of a personal license to use the said computer program including the associated user documentation and the granting of the rights of use described in § 3. The hardware and software environment necessary for the execution of the program is described in §10 and is recognized as the technical basis for the fulfillment of the contract.
(2) The LG shall provide the LN with a copy of the software on its homepage (http://consilium.code-is-poetry.de) for download. This download corresponds to a trial version of the software, which can be unlocked when you order and pay for the license fees with a user ID and a serial number as a full version.
(3) The licensor reserves the right to deactivate the user identification and serial number at any time in case of misuse. The misuse of this software is ...
(a) ... the distribution and use of the software and these identifiers to third parties who themselves have not acquired a license to the Software. (b) ... a non-authorized resale of the Software (except as described in §2 (4)) (c) ... decompilation of the Software and use, modification and sale of the contained source code. (d) ... a so-called hacks / cracks unlawfully extended duration of the 45-day test phase. Such an act constitutes a gross violation of the license agreement and will be prosecuted under civil and criminal law.
(4) Finally, the nature and functionality of the contract software result from the constantly updated product description of CONSILIUM. The information contained therein is to be understood as a description of services and not as guarantees. A guarantee is only granted if it has been expressly designated as such.
(5) Installation and configuration services are not part of this contract.
(1) The LN receives a non-exclusive, unlimited right to use the contract software. The contractual software may only be used by a natural person who corresponds to the licenses acquired by LN. The permitted use includes the installation of the contractual software, the loading into the main memory and the intended use by the customer on up to three different terminals. The customer may not rent or otherwise sublicense the purchased contractual software, reproduce it publicly (wirelessly or by wire) or make it accessible or make it available to third parties, be it in return for payment or free of charge, the provision in paragraph (4) remains unaffected.
(2) The LN may make a backup copy of the contractual software if this is necessary to secure future use. The LN undertakes to visibly affix the word "backup copy" to the above-mentioned backup copy, as well as a copyright notice referring to the LG. The right to create a backup does not apply to multiple licenses.
(3) The licensee is not entitled to decompile and duplicate the contractual software.
(4) The LN may permanently transfer the purchased copy of the contract software to a third party by handing over the identifier and serial number. He commits to completely abandon the use of the program in the aforementioned case, to remove all installed copies from his computer and to delete all copies on other data carriers or to hand them over to the LG, unless there is a legal obligation for longer storage. At the request of the LG, the LN shall be obliged to confirm in writing the implementation of the above measures and, if necessary, explain to him the reasons for a longer storage period. In addition, LN undertakes to expressly agree with the third party who receives the contractual software from him the consideration of the scope of the granting of rights in accordance with this contract in §3.
(5) If the licensee uses the contractual software to an extent that qualitatively or quantitatively exceeds the rights of use acquired by him, he undertakes to immediately acquire the rights of use for the permitted use of the LG. Otherwise, the LG will assert its rights immediately.
(6) Features used for program identification (eg copyright notices, serial numbers, etc.) must not be removed from the contract software. They may not be changed further.
(1) The purchase price for a license for use by a natural person, results from the respective valid price list or an individual price agreement between LN and LG.
(2) All prices are net prices, ie. H. excluding any applicable VAT.
(3) All payments by the LN must be made before the commercial use of CONSLIUM by the LG. After full payment, the LN will receive a valid user ID and serial number.
(1) The LG guarantees the agreed quality of the contractual software and that LN can use the contractual software without breaching the rights of third parties. The proper warranty is not applicable to defects that are based on the fact that the software supplied by the LG software is used in a hardware and / or software environment that does not meet the requirements specified in § 10 and for those not expressly released by the contract software is.
(2) If the LN is an entrepreneur, he is obliged to immediately check the contract software for obvious defects after receipt and to notify the LG of any defects immediately. Otherwise, a warranty for the aforementioned defects is expressly excluded. This also applies accordingly, if later such a defect shows. § 377 HGB applies. Furthermore, the software is subject to a constant improvement and optimization process.
(3) If the software does not function properly despite the fulfillment of the technical prerequisites mentioned in § 10, the LN is entitled to withdraw from the purchase contract within 14 days. In this case, the LN must remove all installations of the software and destroy all copies. The assigned user ID and the serial number are deactivated in this case by the LG.
(4) There are no claims on the part of the licensee to compensate consequential damage through the use of the software. These include bad schedules of rosters, destroyed files, such as the database stored in the working directory of CONSILIUM, or other errors and damages in the IT environment of the licensee.
(5) The software is provided without further claim to local support. Backup and further backups, which are necessary directly or indirectly in connection with the use of CONSILIUM - in particular the backup of the working directory of CONSILIUM - are guaranteed exclusively by the IT structure at the LN on site.
(1) In the event of a breach of a cardinal obligation (duty which is essential to the achievement of the purpose of the contract), the liability of the LG shall be limited to the damage which is foreseeable and typical according to the nature of the business in question. There are no claims for incorrect or faulty work processes on the part of the LN through the use of CONSILIUM.
(2) There is no further liability of the LG.
(3) The aforementioned limitation of liability also applies to the personal liability of employees, representatives and organs of the LG.
(1) The LN undertakes to secure the contractual software as well as the access data for its online access against access by unauthorized third parties. He will take appropriate measures for this. In particular, he undertakes to keep all copies of the contractual software as well as the aforementioned access data in a place protected from access by unauthorized third parties.
(2) The LN undertakes to enable the LG, at its request, to verify the contractual use of the contractual software, in particular with regard to compliance with the contractual scope of use. As part of this review, LN undertakes to provide information to LG, to provide access to relevant documents and to provide an opportunity to review the hardware and software environment used. The inspection may be carried out by the LG in the premises of the LN during regular business hours. He may also have the review conducted by third parties required to maintain confidentiality in the prescribed manner. The LG will disturb as little as possible the business operations of the LN through its activities on the premises of the LN.
(1) The parties undertake to maintain confidentiality.
(2) Confidential information is all information and documents of the other contracting party that are marked as confidential or that must be regarded as confidential in the respective circumstances. This applies in particular to information on the operational procedures, business relationships, know-how, etc. of the other contracting party. Such information does not include such information, which was demonstrably already known to the recipient upon conclusion of the present contract or which becomes known to third parties after the conclusion of the contract, without this violating a confidentiality agreement, statutory provisions or, where appropriate, official orders. It also excludes confidential information that must be disclosed by law or by order of a court or public authority. If permitted and possible, the recipient required to disclose will inform the other party prior to disclosure and give it the opportunity to counteract such disclosure. The parties undertake to grant access only to such consultants to the respective confidential information which is either subject to professional secrecy or to which the obligation of secrecy of this contract has previously been imposed. The contracting parties will only disclose to their employees confidential information which they need for the performance of their contractual duties, and only to the extent that the aforementioned employees must be aware of when carrying out this contract. They will oblige their employees to secrecy for the times after leaving their company, as far as this is permissible under employment law.
(3) The parties agree to maintain secrecy about all confidential information.
(4) When negotiating an individual license fee or the negotiated license fees for volume licenses, both parties also agree to secrecy.
(1) In the case of a demo version of the contractual software, the LN is only allowed to use this period, which is limited to a 45-day period. The trial period starts with the first start of the CONSILIUM trial. This trial version fully complies with a full version unlocked with user ID and serial number. After 45 days, CONSILIUM can no longer be used by the LN - the essential program functions are automatically deactivated.
(2) Commercial use of the test version provided by the LG to the LN is strictly forbidden.
(3) Any warranty is excluded with respect to a trial version, which the LG has given to LN. This also applies to test versions of subsequent improved versions, so-called BETA versions.
(1) The LN may only assign claims against the LG to third parties with its written consent. § 3 para. (4) of this contract remains unaffected.
(2) Offsetting of the LN is only permitted with undisputed or legally established claims.
(3) Changes and additions to this contract must be made in writing. This also applies to the amendment or cancellation of the written form clause. Electronic documents in text form do not fulfill this formal requirement.
(4) The terms and conditions of the LN are not applicable.
(5) If the software is subject to (re-) export restrictions, LN shall comply with these provisions in case of resale / other export.
(6) German law shall apply to this contract, excluding the UN Sales Convention.
(7) The place of performance is Troisdorf, NRW. The exclusive place of jurisdiction is Troisdorf, as long as both contractual parties are merchants or legal entities under public law or have no general place of jurisdiction in Germany.
(8) Should individual provisions of this contract be ineffective, this shall not affect the validity of the remaining provisions. In this case, the contracting parties shall endeavor to find an effective one in place of the invalid provision that corresponds to the economic interests of both parties and most closely approximates the economic significance of the ineffective clause.
(9) All attachments to this contract, which are also mentioned in this contract, are a mandatory part of the contract.
(1) The minimum requirements for using CONSILIUM are as follows for the following versions:
(a) Version 1.00 to 1.99:
Microsoft Windows 10 (32 or 64 BIT)
Microsoft Excel (as of version 2010)
Microsoft Word (from version 2010)
.NET Framework (version 4.5 or higher)
(With the support of horak lawyers, www.horakrechtsanwaelte.com)