PRIMEBASE LICENSE AGREEMENT
1. Subject-Matter of this Contract
These general terms and conditions of the PrimeBase Systems GmbH (in the following "PRIMEBASE", PrimeBase Systems GmbH is a private limited company) govern the purchase and use of PrimeBase Software, in the following known as the program.
2. Formation of the Contract
A contract is formed with the signing of an order-sheet by the customer and PRIMEBASE or - in as far as an order for that specific type of business is without such a form - with an order through the customer and an acceptance of the order through PRIMEBASE. Upon lack of an offer of the customer this license agreement is formed through customers` taking possession (i.e. Downloading, Installing, Copying, Accessing or Using the program) of the computer program.
Further conditions for programs can be found in documents that have been made available through PRIMEBASE and that will be part of this contract as enclosures and documents of the certain contract.
3. Charges and Conditions of Payment
Bills are due upon receipt. There will be an overdue interest in the amount of 5% of the price if the bill has not been paid 10 days after receipt. The sales tax will apply in the amount of the actual sales tax rate. An offset through the customer is only possible when his obligation was declared through a German court as valid and due.
4. Calculation of Prices
The fees will be determined according to the number of concurrent connections between a server and the clients.
The price can be determined on the basis of measures of the real use of the program. The customer is required upon request to inform PRIMEBASE about the data of use according to PRIMEBASE's instructions.
The programs are intellectual property of PRIMEBASE.
With acceptance of the customers' order through PRIMEBASE the client will be granted a non-exclusive and non-transferable right to use the program.
Contractual agreed Scope of Use
The customer is entitled to use the program according to the contractually agreed scope of use:
The number of client work-stations on which the program can be used simultaneously is restricted to the number of concurrent connections in the granted licenses.
The total number of simultaneous connections may not exceed the number encoded in the activation key. Each activation key can simultaneously be used by one server. If a temporary license has been granted, the Software may not be used beyond the indicated expiry date.
The customer may sell or transfer the copied pieces to a third party once. The passing-on is only permissible under the condition that the third-party agrees to the terms of this agreement and that the customer deletes at the same time all copies which had been made of these duplications and acquits him of any possibility to use the software under the contract.
Reverse Engineering, Reverse Compiling
The customer may not reverse engineer or reverse compile the program or otherwise translate it except as specifically permitted by law without the possibility of contractual waiver.
Leasing and Sublicensing
The customer may not sublicense, rent or lease the program.
6. Limited Warranty
As far as the program has been made available free of charge, there will be no warranty at all. Otherwise there is a limited warranty by PRIMEBASE as follows:
Software never without Defects
The parties agree that it is not possible to develop software in such a way that it is without defects for all conditions of application.
Notification of Defects through the Customer
Eventually occurred defects have to be documented by the customer for PRIMEBASE in an understandable manner and must be notified by the customer to PRIMEBASE, in writing, and when possible immediately, but at least 5 days after detection of the defects.
After the 5 day period expires, the defect is approved by the customer.
Obligation to Notify a Defect
In the case that PRIMEBASE is informed about the defects in accordance with the above stated paragraph, PRIMEBASE will perform subsequent fulfillment as follows:
PRIMEBASE is entitled to settle subsequent fulfillment through remedy or through a new delivery.
The parties have to agree on the time limits for improvement common in software contracts and appropriate to the special circumstances of the software.
The elimination of defects can also be done by telephone, written or electronic instructions.
7. Exclusion of warranty
Modification of Program
As far as the customer modifies the program or lets other parties modify the program the warranty will be excluded unless the customer shows that the defects are not caused by the modification and also the analysis of the defect will not be adversely affected.
Used in the Specified Operating Environment
The warranty will also be excluded when the program is not used in the specified operating environment and the defects are caused because of this.
Withdrawal in Case of Legal Defects
When it is not possible for PRIMEBASE to cure legal defects in appropriate und proper conditions, PRIMEBASE is entitled to withdraw from the contract.
8. Statute of Limitations
Claims regarding defects will be barred under the statute of limitations one year after delivery of the program. In case of malice and in case of a guarantee through PRIMEBASE the legal statutes for warranties will be untouched.
PRIMEBASE is liable for damages that have been caused through a contractual guarantee, for personal damages and for damages that have been caused through intentional or gross negligence.
Limitation of Liability
In case the program has been provided free of charge to the customer, there will be no further liability by PRIMEBASE.
In case the program has been provided not free of charge, the liability is limited according to the following standard:
PRIMEBASE excludes the liability for ordinary negligence, when a violation of essential contractual duties or damages originating from an injury of life, the body or the health is not given, or guarantees or claims according to product liability are not affected.
In case of liability by PRIMEBASE because of ordinary negligently violation of essential contractual duties the obligation of compensation is limited to general damages.
There is no liability for breach of a contractual duty when the program has defects that were unavoidable according to the technical status at the date of the formation of the contract.
In all other cases the liability of PRIMEBASE and also its employees, vicarious agents and representatives is excluded.
10. Data protection
The customer agrees to allow PRIMEBASE and its affiliated companies to store and use his or her contract information, including names, phone numbers, and e-mail addresses - anywhere PRIMEBASE and its affiliates are doing business.
The customer and PRIMEBASE are allowed to terminate the contract for important reasons, when the other - after granting an appropriate subsequent time period - does not fulfill its contractual obligations. PRIMEBASE is entitled to terminate this license agreement, when the customer does not fulfill the obligations of this license agreement. A termination is precluded in the case of insignificant violations. With the termination of this agreement the right of use of the licensed program ends.
12. Governing Law
The delivery and performance through PRIMEBASE is subject-matter to this agreement and its general terms. The customer's general terms are not part of this agreement.
13. Application of German Law
The customer and PRIMEBASE consent that all rights and duties of the parties arising from, or relating in any manner to the subject-matter of this agreement, without regard to conflict of law principles, are governed, interpreted and enforced by German law.
The United Nations Convention on Contracts for the International Sale of Goods does not apply.
14. Saving Clause
The invalidity of single terms and conditions of this agreement does not affect the validity of other terms and conditions of this agreement.
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