GTC

General Terms of Contract of Janitza Electronics GmbH for the free transfer of software

§ 1 Validity of the terms of contract

(1) For the free transfer of software by Janitza Electronics GmbH, business address Vor dem Polstück 1, 35663 Lahnau (hereinafter referred to as "JANITZA") to the user and for pre-contractual obligations in this context, these General Terms of Contract of Contract shall apply exclusively, unless otherwise agreed. Deviating terms of contract of the user shall not form part of the contract, even if JANITZA does not expressly object to them.

(2) Even if no further reference is made to this when concluding similar contracts, the General Terms of Contract of Janitza Electronics GmbH for the free transfer of software in the version current at the time of the user's declaration (available at www.janitza.de) shall apply exclusively, unless the contracting parties agree otherwise in writing.

(3) In addition, the statutory provisions shall apply, in particular §§ 516 et seq. of the German Civil Code (BGB) (gifting).

§ 2 Conclusion of contract

(1) The contract is concluded in such a way that JANITZA sends the user a confirmation email upon the user's request for the free software and then actually provides the user with the software (including the associated data carrier, if available).

(2) Both parties agree that the software (and the associated data carrier, if applicable) shall be transferred/granted free of charge.

(3) A binding contract is not concluded until the software is actually transferred (a promise to make a gift requires notarization in accordance with § 518 (1) BGB; this formal defect is only remedied by the actual transfer, § 518 (2) BGB).

(4) Separate contracts shall be concluded for supplies and services of other types (e.g. hardware delivery, software maintenance, setup and installation of the software, training).

§ 3 Subject matter of the contract, scope of performance

(1) The subject matter of these terms of contract is the transfer of the free software (including the associated data carrier, if available) to the user and the granting of the rights of use in accordance with § 4.

(2) The free software (including the associated data carrier, if available) shall be provided as it is available at JANITZA at the time of transfer ("as is").

(3) Before concluding the contract, the user has checked that the specification of the software meets their wishes and requirements. They are aware of the essential functional features and conditions of the software in accordance with JANITZA's product description.

(4) According to the current state of the art, it is not possible to create software programs that work error-free in all applications. Product descriptions, illustrations, test programs etc. are therefore general service descriptions, but not guarantees. A guarantee requires a written declaration by the management of JANITZA.

(5) The user shall receive the software consisting of the machine program and, if available for the software in question, a user manual in file form. The method of delivery of the software shall be as agreed; unless otherwise agreed, the program and user manual shall be delivered by post on a USB stick. The user has no claim to the transfer of the source program.

§ 4 Rights of the user to the software

(1) The software (program and user manual) provided free of charge is legally protected. The copyright, patent rights, trademark rights, and all other ancillary copyrights to the software as well as to other objects that JANITZA provides or makes accessible to the user in the context of the initiation and execution of the contract are the exclusive property of JANITZA in the relationship between the contractual partners. If third parties are entitled to the rights, JANITZA holds the corresponding exploitation rights.

(2) The user is only entitled to process his own data with the program in his own company for his own purposes. All data processing devices (e.g. hard disks and central processing units) to which the programs are copied or transferred in whole or in part, temporarily or permanently, must be located on the user's premises and be in the user's direct possession. Further contractual usage rules (e.g. restriction to a number of workstations or persons) must be set up technically and complied with in practice. JANITZA hereby grants the user the authorizations necessary for this use as a simple right of use, including the right to correct errors. § 10 applies to the duration of the right of use.

(3) The user may create backup copies of the programs required for secure operation. The backup copies must be stored securely and, as far as technically possible, marked with the copyright notice of the original data carrier. Copyright notices must not be deleted, changed, or suppressed. Copies that are no longer required must be deleted or destroyed. The user manual and other documents provided by JANITZA may only be copied for internal purposes.

(4) The user is only entitled to pass on the software or parts thereof to a third party free of charge in accordance with the following rules and after carrying out the following procedures:

  • a) Only one original data carrier may be passed on. Other software or the software in a different version may not be passed on.
  • b) The user deletes all other copies of the software (regardless of their status), in particular on data carriers and in fixed or working memories, and definitively abstains from using it. He undertakes to carry out these procedures before passing on the original data carrier to the third party and to confirm them to JANITZA in writing without delay.
  • c) The transfer to the third party is made on a permanent basis, i.e. without any right of return or repurchase option.
  • d) The third party declares in writing to JANITZA that it will comply with § 4, § 10 (2) and (3), § 11 and § 12 of these General Terms of Contract directly vis-à-vis JANITZA.
  • e) JANITZA's written consent has been obtained. JANITZA is obliged to give its consent if there are no important reasons (e.g. protection against competition) to the contrary.

In the event of a breach of these rules by the user, JANITZA reserves the right to claim damages.

(5) The rules according to paragraphs 2, 3, and 4 d), e) shall also apply if the user carries out error correction or (as far as permissible) other processing of the programs or uses the software for training purposes.

(6) The user may only decompile the interface information of the programs within the limits of § 69 e of the German Copyright Act (Urhebergesetz) and only after he has informed JANITZA in writing of his intention and requested the provision of the necessary information within a period of at least two weeks. § 11 applies to all knowledge and information that the user obtains about the software in the course of decompiling. Prior to any involvement of third parties, the user shall provide JANITZA with a written declaration from the third party that the latter undertakes directly to JANITZA to comply with the rules set out in §§ 4 and 11.

(7) All other acts of exploitation, in particular the sale, rental, lending, and distribution in physical or non-physical form, use of the software by and for third parties (e.g. outsourcing, data center activities, application service providing) are not permitted without the prior written consent of JANITZA.

(8) Contractual objects, documents, proposals, test programs, etc. of JANITZA that become accessible to the user before or after conclusion of the contract shall be deemed intellectual property and a business and trade secret of JANITZA. They may not be used in any way whatsoever without the written permission of JANITZA and must be kept secret in accordance with § 11.

§ 5 Place of performance

The place of performance for all services arising from and in connection with this contract is the registered office of JANITZA.

§ 6 Obligations of the user

(1) The user is obliged to test the program thoroughly for usability in the specific situation before starting productive use.

(2) The user is obliged to take appropriate precautions in the event that the program does not work properly in whole or in part (e.g. through data backup, fault diagnosis, regular checking of results, emergency planning). It is his responsibility to ensure the functionality of the program's working environment.

§ 7 Material defects

(1) JANITZA's liability to the user for material defects in the software provided (including the associated data carrier, if any) is limited to cases in which JANITZA fraudulently conceals a material defect in the software from the user. In this case, JANITZA shall compensate the user for the resulting damage in accordance with § 524 (1) BGB.

(2) The user shall have no claim to the removal of defects by JANITZA in the case of software provided free of charge.

§ 8 Defects of title

(1) JANITZA's liability to the user for defects in the right to the software provided (including the associated data carrier, if any) is limited to the case that JANITZA fraudulently conceals a defect in the right to the software from the user. In this case, JANITZA shall compensate the user for the resulting damage in accordance with § 523 (1) BGB.

(2) The User must inform JANITZA immediately in writing if third parties assert property rights (e.g. copyrights or patent rights) to the software against the user. The user authorizes JANITZA to conduct the dispute with the third party alone. As long as JANITZA makes use of this authorization, the user may not acknowledge the claims of the third party on his own initiative without the consent of JANITZA; JANITZA shall then defend the claims of the third party at its own expense and indemnify the user against all costs associated with the defense of these claims, unless these are based on conduct of the user in breach of duty (e.g. use of the programs in breach of contract).

§ 9 Liability

(1) Outside of the liability for material defects and defects of title (see §§ 7, 8 above), JANITZA shall only be liable pursuant to § 521 if the user asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of JANITZA's representatives or vicarious agents.

(2) JANITZA retains the option to object based on contributory negligence in any case. In particular, the user has a duty to back up data and to defend against malware in accordance with the current state of the art.

§ 10 Start and end of the user's rights

(1) Ownership of the items provided and the rights pursuant to § 4 shall pass to the user upon transfer.

(2) JANITZA may revoke the rights under § 4 for good cause. Good cause exists in particular if JANITZA cannot reasonably be expected to continue to adhere to the contract, especially if the user violates § 4 in a significant manner.

(3) If the rights under § 4 do not arise or if they end, JANITZA may demand that the user return the software provided or provide written assurance that it has been destroyed, as well as the deletion or destruction of all copies of the software and written assurance that this has been done.

§ 11 Secrecy

(1) The contracting parties undertake to treat as confidential all items (e.g. software, documents, information) which they receive or become aware of from the other contracting party before or during the execution of the contract and which are legally protected or contain business or trade secrets or are designated as confidential, even beyond the end of the contract, unless they are publicly known without breach of the confidentiality obligation. The contracting parties shall store and secure these items in such a way that access by third parties is excluded.

(2) The user shall only make the contractual objects accessible to employees and other third parties who require access in order to perform their official duties. He shall instruct these persons about the confidentiality of the objects.

(3) JANITZA processes the user's data required for business transactions in compliance with data protection regulations. JANITZA may name the user as a reference user after successful completion of the services.

§ 12 Final provisions

(1) Amendments and supplements to the contract must be made in writing to be effective. The written form requirement can only be waived in writing. Transmission in text form, in particular by fax or e-mail, is also sufficient to comply with the written form requirement.

(2) 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.

(3) The user may only offset claims against JANITZA with claims that are undisputed by JANITZA or have been legally established. Except within the scope of § 354 a HGB (German Commercial Code), the user may only assign claims arising from this contract to third parties with the prior written consent of JANITZA. The user shall only be entitled to a right of retention or the defense of non-performance of the contract within this contractual relationship.

(4) The place of performance and place of jurisdiction for all disputes arising from and in connection with this contract shall be the registered office of JANITZA for contracts with merchants, legal entities under public law, or special funds under public law.

(5) In the event of differences between this contract and a translation of this contract, the German version of the contract shall prevail.