Conditions of Use for RPLAN Software Licences
Section 1 Subject of the agreement
(1) The subject of these Conditions of Use is the granting of rights to use and exploit the computer programs described in the quote (hereinafter referred to as the Subjects of the Licence).
Section 2 Rights to the product
(1) ACTANO shall grant the Customer the non-exclusive and non-transferable right to use the named products for the described number of users of the Subjects of the Licence. Users are all users of the Subjects of the Licence whose names are registered on the RPLAN server (Named User Principle).
(2) The above rights are unlimited in time.
(3) The above rights apply exclusively to the Customer, no third parties. Third parties in these terms are companies not associated with the Customer. In particular, third parties include sub-contractors or consortium partners or joint venture partners of the Customer. In the case of associated companies (between 51 and 100% of shares in the company owned by the direct customer/buyer) the usage rights may be transferred "downwards", regardless of the location.
(4) The Customer shall inform ACTANO of the installation location (in case of several installations, the installation locations) of the Subjects of the Licence and of any changes to these locations. The number of clients may not exceed the number of defined users.
(5) In all other respects, copyright and exploitation rights for the software remain exclusively with ACTANO.
Section 3 Back-up copies, editing and decompilation
(1) The Customer is granted the right to copy the Subject of the Licence. This shall be limited to copies on computer systems in its direct ownership used for the Subject of the Licence and to copies which require loading, displaying, playing, transferring or storing of the Subject of the Licence. In all other respects the Customer has the right to make back-up copies required to back up the data, which shall be marked as such.
(2) The software must not be decompiled.
Section 4 Delivery of the software
(1) The Customer shall have the Subject of the Licence, including object code or Java code in machine-readable form delivered on state-of-the art data media which can be read on the Customer's computer systems or shall have it delivered by remote data transfer. The Customer shall receive a program description as an electronic document in English and a copy of the user manual as a hardcopy.
(2) Delivery shall be according to Incoterms CPT destination.
(3) If it is planned that ACTANO carries out installation at the Customer's premises, the Subject of the Licence according to Section 4, Paragraph (1) shall be delivered by an ACTANO employee who is responsible for the installation.
Section 5 Prices and terms of payment
(1) The Customer shall pay ACTANO the agreed licence fee in accordance with the latest valid regional price list or according to the agreed terms and conditions. The regional classification is based on the respective registered office of the Customer/contractual partner.
(2) All prices are net plus statutory valued added tax.
(3) The licence fee shall be due upon delivery of the Subject of the Licence according to Section 4 of this Agreement to the Customer.
(4) The invoice shall be sent when the Subject of the Licence is delivered. The Customer shall pay the net price within 30 days from the date of invoice; the Customer shall pay the net price for services rendered within 30 days from the date of invoice. Other fees (software maintenance and other fees) shall be due in accordance with the terms listed in the quote or in the Agreement.
(5) ACTANO may review the number of users at any time using suitable measures. For this purpose the Customer shall procure the respective information and data for ACTANO in the necessary scope and format - also electronically if so required. If the number of users exceeds the number that is agreed in the quote or in the Agreement, the Customer shall immediately purchase an extended licence at the respective valid list price.
Section 6 Warranty
(1) ACTANO shall guarantee that the software essentially complies with the functions described in the user documentation and that it is free of defects that could nullify or reduce the software's value or suitability for the use intended in the Agreement or the typical use. ACTANO shall not be liable for minor deviations or shortfalls.
(2) The warranty period shall begin with delivery of the first copy of the Subject of the Licence, including user documentation. The warranty period for software maintenance shall begin when the maintenance service has been provided, when the defect is actually remedied and upon delivery of the update or upgrade. The warranty period is 24 months.
(3) In case of defects ACTANO is entitled and obliged to remedy these at its own expense. ACTANO may also deliver a replacement of equal quality.
(4) If, in spite of attempting to rectify a defect twice, ACTANO should be unable to eliminate a defect which the Customer has complained about in the proper manner, and if this considerably reduces or makes impossible the Subject of the Licence's fitness for use in terms of the description in the user documentation, after setting a reasonable period of grace in written form, the Customer may withdraw from the Agreement relating to the respective software module or may demand that the fee is reduced for the respective software module. In case of defects that ACTANO is responsible for due to a breach of its duties, instead of a reduction or withdrawing from the Agreement, the Customer may demand compensation due to non fulfilment of performance.
(5) The warranty does not include defects that are caused by the Customer or third parties commissioned by the Customer as a result of modification or incorrect use of the Subject of the Licence, or by the use of hardware components that do not comply with the specifications of the Contractor for operation of the Subject of the Licence.
Section 7 Liability
(1) Regardless of the legal basis, ACTANO shall be liable
a) in case of intent or gross negligence of its legal representatives and executive staff,
b) in case of intent or gross negligence on the part of any other agent only if a duty is breached which is of special importance for fulfilling the purpose of the Agreement.
c) in case a warranted property is lacking, only for typical and predictable damages that could have been prevented with due care and warranted properties, and
d) In all other cases only when an essential contractual duty is breached, inability to perform and delay, in which case compensation shall be limited to typical, predictable damage that is not rectified.
(2) ACTANO's liability for such damage – apart from intent and gross negligence on the part of legal representatives and executive staff - shall be limited in all cases
a) for the delivered Subject of the Licence to the amount of the licence fee the Customer has paid for the defective software module and
b) for the provision of services or software maintenance to the amount paid for the service that forms the basis for the claim, or the annual software maintenance fee
c) however, this shall not exceed €500,000.
(3) ACTANO expressly excludes any further liability.
(4) The Customer acknowledges that the individual limits shall apply independently of each other. If a limit cannot be implemented, this shall have no influence on the other limits.
Section 8 Act of God
(1) If one of the parties to the Agreement should be prevented from performing its contractual duties due to an Act of God, the duties that cannot be fulfilled shall be suspended for the duration of the Act of God. The party to the Agreement that is affected by the Act of God shall inform the other partner of this occurrence without delay. The party to the Agreement that is affected shall make every attempt to avoid the consequences of the Act of God and when the Act of God no longer exists, shall recommence its duties without delay.
Section 9 Infringement of an industrial property right
(1) ACTANO, at its own expense, shall defend claims against the Customer arising from infringements of industrial property rights based on deliveries and services supplied by ACTANO, assuming the Customer acknowledges these claims and informs ACTANO about the assertion of such rights by third parties without delay. The Customer shall grant ACTANO all authorisations and authorities that are required so that ACTANO, at its own expense, can take part in any legal actions, especially also by means of compromise.
(2) If third-party industrial property rights have been infringed, ACTANO may either procure the right for the Customer to continue using the product, replace the respective software modules or change them so that they no longer infringe any industrial property rights, or, if this is not within the scope of reasonable possibilities, take back the respective software module and repay the Customer the fee it has paid.
Section 10 Other provisions
(1) Supplementary or deviating provisions shall be regulated in writing in a separate agreement.
(2) ACTANO does not acknowledge the Customer's Standard Terms and Conditions, also not if ACTANO, knowing the Customer's Standard Terms and Conditions, provides the service to the Customer without provisos.
(3) If, when purchasing the Subject of the Licence, the Customer also requests services and software maintenance, the maintenance conditions for RPLAN software and the Standard Terms and Conditions for Services shall automatically become an element of the purchase order and/or the Agreement.
(4) In case of contradictions between the provisions of these conditions and/or other contractual agreements between the Customer and the Contractor, the following sequence shall apply:
a) Other appendices to this Agreement and their supplementary sheets in the order in which they are numbered
b) The text of this document
c) RPLAN software maintenance conditions and/or Standard Terms and Conditions for Services, assuming services are ordered
d) The text of an accepted purchase order
e) Customer's Standard Terms and Conditions, assuming they are an element of this Agreement
ACTANO may use subcontractors to provide services based on this Agreement.
(5) The validity and the interpretation of this Agreement are subject to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts and the International Sale of Goods shall not apply.
(6) The place of jurisdiction shall be the Contractor’s registered office.
(7) If the RPLAN reporting module is also purchased, the provisions of the Provider Agreements on the ACTANO web site under the heading AGB (Standard Terms and Conditions) between ACTANO and Business Objects, including stipulation of which law shall apply, shall apply exclusively. These conditions should be understood as if there were a direct contractual relationship between BO and the buyer.
Maintenance Conditions for RPLAN Software
Section 1 Subject of the Agreement
(1) As a supplement to the provisions of the conditions of use for RPLAN software licences ACTANO also maintains the computer programs named above which it provides (hereinafter referred to as Software) according to the following conditions.
(2) Maintenance also covers the documentation accompanying the software.
Section 2 Term of the Agreement and termination
(1) This Software Maintenance Agreement shall take effect when the software maintenance is ordered.
(2) It shall be for an unlimited time and may be terminated by either party with three months' notice to the end of the contractual year; however, not before a period of twelve months has expired from the date on which the Agreement is signed.
(3) Either party to the Agreement may also terminate the software maintenance without notice for good cause. Good cause for termination without notice exists especially if the other party to the Agreement breaches the terms of the Agreement repeatedly or in a serious manner and this breach - assuming it can be remedied - is not rectified within 30 days of receipt of a written warning. ACTANO may also terminate the Agreement without notice for good cause if the Customer is three months in default with its payments, regardless of whether these payments relate to licence, software, maintenance or other fees or remuneration. In such case the Customer shall have no claim to reimbursement of payments it has made and ACTANO retains the right to assert further claims.
(4) The Agreement may only be terminated in writing.
Section 3 Provision of services
(1) ACTANO shall employ qualified personnel who are familiar with the software for maintenance work.
(2) Within the scope of maintenance ACTANO shall rectify errors in the provisions of this Agreement that occur during use of the software or which become obvious in the associated application documentation. Maintenance also includes rectifying defects or other faults that ACTANO gets to know of in the software regardless of its use by the Customer. This shall not affect the Customer's warranty rights.
(3) Rectifying defects in terms of this Agreement includes troubleshooting, diagnosis, and services that are aimed at remedying the defect, without any guarantee of success being given. ACTANO may, at its discretion, maintain the program with a work-around or an update. Rectifying a defect also includes correcting the associated program documentation.
(4) Services which belong to this Agreement also include the provision of new software releases, error rectification and/or new functions (hereinafter referred to as updates). Within the scope of software maintenance ACTANO will provide an update hotline. To implement the release change for the Customer effectively and in a timely manner, by prior arrangement, the update shall be implemented together with the ACTANO hotline.
(5) ACTANO shall provide technical support by phone or e-mail.
Section 4 Maintenance limits
(1) Not included in software maintenance are:
(a) Services outside the maintenance periods defined in Section 5, Paragraph (1);
(b) Services for software that is not used under the conditions specified by ACTANO, especially in a system environment other than the one contained in the product description;
(c) Services for software that was changed by the Customer carrying out programming work;
(d) Services for computer programs or parts that are not software;
(e) Services for computer programs created, extended and/or adapted by ACTANO within the scope of a work contract.
(f) Services for program parts whose function depends on other programs, unless a corresponding software maintenance agreement for these other computer programs also exists between the Customer and ACTANO;
(g) Services for software that is two or more generations older than the currently released version. A version in this sense means versions that either have a new number in front of the decimal point or a new number behind the decimal point;
(h) Services that are needed or practical to implement programming of independent program modules;
(i) The creation or provision of programs or consulting work for this or for the use of data processing units; and
(j) Services for software that is installed in a location other than that named in the licence certificate. ACTANO must be informed of all changes in installation locations in writing. ACTANO may only refuse software maintenance at the new installation location for good reason. Additional costs for software maintenance resulting from the change of installation location shall be charged to the Customer.
(k) Services and reworking caused by updates, if the work was not performed properly by the Customer (non-compliance with Section 3 Provision of services, Paragraph 4).
(l) Inquiries concerning the operation and use of RPLAN software. These inquiries are not covered by software maintenance and they should not be addressed to technical service staff. Only in exceptions and by arrangement will such services be provided; they will be invoiced separately. In such cases, ACTANO's applicable service rates shall apply.
Section 5 Provision of maintenance
(1) Software maintenance is provided from Monday to Friday between 9 am and 5 pm (hereinafter referred to as maintenance provision). The time zone at ACTANO's registered office applies to the times for maintenance provision.
(2) Faults are to be distinguished according to the following fault categories:
Fault category 1:
The fault causes a situation where the entire system cannot be used.
Fault category 2
The fault causes a situation where important functions cannot be used properly and this cannot be circumvented with suitable measures for a period of time which could be considered reasonable for the Customer.
Fault category 3
Other faults.
(3) After receiving an adequately specified description of the fault, ACTANO shall be bound by the following response times within maintenance provision.
Fault category 1: 2 hours after being notified
Fault category 2: Within 24 hours of being notified
Fault category 3: Within 48 hours of being notified
(4) Response time means the period within which ACTANO starts its maintenance work. If the work is not performed at ACTANO's premises, the response time begins when an ACTANO employee arrives at the Customer's premises and when ACTANO can actually access the Customer's system. ACTANO shall invoice these services and all other services in excess of the services defined in Section 3 to the Customer separately.
(5) Software maintenance work will not be performed at the weekend (Saturday, Sunday) or on public holidays which apply at ACTANO's registered office. If the response time falls on a weekend, a public holiday or at a time outside the normal maintenance provision times, the response time shall be suspended.
(6) Services provided by ACTANO that are not in any of the fault categories shall not be subject to a response time.
Section 6 Duties on the part of the Customer
(1) The Customer shall nominate for ACTANO a maximum of two administrators for its employees at the installation location who shall act as contacts. These employees may report faults. These administrators must have taken part in an ACTANO product training session at the Customer's expense. The Customer must inform ACTANO of any changes to the administrators in writing without delay. If a person other than these named employees reports a fault, this fault report does not initiate the response time.
(2) Before reporting a fault, the Customer shall analyse the system environment to the best of its abilities to ensure that the fault is not due to system components that are not subject to this Agreement.
(3) The Customer shall ensure that during the term of this Agreement a suitable back-up copy is made at least once per day to restore its entire system, applications and data and that this is kept in a safe place and that it is protected against damage. If data is destroyed or lost, at ACTANO's discretion the Customer shall immediately restore its system with the help of this copy or provide ACTANO with the copy to restore the data at the Customer's expense.
(4) The Customer shall immediately install updates or new versions provided by ACTANO within the scope of this Software Maintenance Agreement, unless the Customer cannot be reasonably expected to bear the costs associated with the installation for upgrading the system environment. Section 4 Paragraph (1) (g) shall apply.
Section 7 Remuneration
(1) For the described maintenance services ACTANO shall receive an annual remuneration of 20% of the respective applicable list price for the software - assuming no other customer-specific price arrangements have been made. If, within the contractual year, the Customer purchases more licences, the remuneration for the maintenance services shall increase on a pro rata basis for the newly licensed software from the time when the respective licence agreement is signed at the agreed terms and conditions.
(2) All prices are net plus statutory valued added tax.
(3) The remuneration shall be due when the software has been installed in the customer's premises. The services shall be invoiced for a year in advance. Invoices shall be paid within 30 days of the date of invoice.
(4) ACTANO may change the remuneration according to Paragraph (1) after announcing this in writing with six weeks' notice to the end of the contractual year. However, a change such as this may only be made at the earliest twelve months after the Software Maintenance Agreement has been concluded and may not exceed the previous twelve month period by more than ten per cent. If fees or surcharges are increased by more than five per cent compared to the previous twelve-month period, the Customer may terminate the Agreement in writing with three weeks' notice from the date of the increase without consideration of Section 2.
Section 8 Co-liability of the Customer and limits of liability
(1) If a claim is made against ACTANO based on warranty or liability, the contributory negligence of the Customer shall also be considered to an appropriate degree. This shall apply especially in case of inadequate fault reports or insufficient data backup.
(2) The Customer's warranty claims shall be statute barred one year after the respective maintenance has been performed. The date of completion is the date on which the respective maintenance is provided.
(3) In case of serious defects the Customer shall have a claim against ACTANO for supplementary performance. The Customer shall request in writing that ACTANO provide supplementary performance and give ACTANO suitable opportunities to provide this performance. Within the scope of supplementary performance ACTANO may replace or repair software components. If supplementary performance should be unsuccessful, the Customer may terminate the Agreement for extraordinary reasons and/or may demand compensation, may rectify the defect itself and/or may demand replacement for wasted expenditure.
(4) ACTANO shall be liable to the Customer only for personal injury and for damage that ACTANO, its legal representative, other employees or agents cause with intent or gross negligence in the course of fulfilling their contractual duties. ACTANO's liability for material damage or financial loss based on slight negligence by the persons named in Sentence 1 or which ACTANO is responsible for in any other way shall be limited to the annual maintenance fee.
Section 9 Other provisions
(1) In all other respects the conditions of use for RPLAN software licences shall apply.
Standard Terms and Conditions for the Provision of Services
Section 1 Subject of the agreement
(1) The Parties to the Agreement agree to perform the services listed in this Agreement for the Customer.
(2) ACTANO does not guarantee the success of services such as training, consulting and workshops, only that the services will be provided by suitably qualified staff. The time and place where the services are provided shall be agreed by the Parties to the Agreement.
(3) Other services will be provided within the scope of projects and must be acknowledged by the Customer when they have been provided.
(4) The content, scope and special terms and conditions of project services to be provided by ACTANO shall be regulated separately. Changes and additions to the content and scope of project services to be provided shall be agreed mutually with the involvement of the persons responsible for the projects from both Parties.
(5) ACTANO and the Customer shall agree on the type, content, scope and price of the specific services in a separate agreement. The separate agreement shall also describe the services, the rough and detailed concepts and specifications.
(6) Changes and additions shall be binding only when they are in writing and attached as an appendix to the Agreement. If the scope of the order should incur added costs due to the changes, these shall be paid by the Customer and will be billed separately.
Section 2 Cooperation between the Parties to the Agreement
(1) The Parties agree to work together closely and efficiently in all phases of the project, for which the personnel, organisational, functional and technical responsibility of the Customer is essential; in particular the Customer shall
(a) specify the requirements for the subject of the Agreement in adequate written form;
(b) ensure that the Contractor is provided with all the documents and information and advance services it needs to perform its duties on time and in a suitable quality, complete, without errors and free of contradictions,
(c) document errors detected in test or actual operation in a reproducible or at least understandable manner and shall inform ACTANO of these without delay,
(d) decide about investments required within the scope of the project in a timely manner and also initiate these investments.
(2) These duties of cooperation apply to services performed by the Customer and to all services ordered by the Customer from upstream companies from the Contractor's viewpoint and to all other of the Customer's agents.
(3) These duties of cooperation apply to services performed by the Customer and to all services ordered by the Customer from upstream companies from the Contractor's viewpoint and to all other of the Customer's agents.
(4) Other companies commissioned by the Customer to provide services on which the Contractor bases its services or which have an influence on the Contractor's services are deemed to be agents of the Customer.
(5) The purpose of the Customer's duty of cooperation is to enable the Contractor to provide its services smoothly and in a coordinated manner. The existence of unresolved points may lead to disruptions in the projects and may mean that changes have to be made (update) to the Agreement in terms of performance, time and remuneration.
Section 3 Delay on the part of the Customer
(1) If the Customer delays actions within the scope of its responsibility, ACTANO's obligations to provide services, which cannot be provided without these specific services or only with disproportionate additional effort, shall be suspended for the duration of the delay. The Customer shall pay ACTANO any additional expenses caused by this in addition to the agreed remuneration on the basis of the respective applicable rates for the service. ACTANO retains the legal right to terminate the Agreement.
Section 4 Performance periods
(1) The periods listed in the Agreement or in individual quotes in the project shall apply. These periods shall be binding only if they are marked explicitly as contractual periods in the documents and the statutory consequences of delay for non-fulfilment may then be applicable.
(2) If the Contractors' performance is rendered difficult/hindered by a circumstance in the Customer's area of risk, the Contractor may claim to have the performance periods and contractual dates prolonged.
(3) If the activities are commenced earlier or later than planned, this shall have effects on the Contractor's contractual deadlines and the agreed prices. The individual deadlines in the Contractor's time schedule shall be the basis of the subsequent deadlines. If the Customer's duties of cooperation or services provided by upstream companies should be delayed, the performance periods for the Contractor shall be prolonged by the length of time by which the Customer's duties of cooperation or services provided by upstream companies are delayed.
Section 5 Warranty for services
(1) The Contractor shall provide warranty within the scope of the German laws on service contracts according to Section 611 ff of the German Civil Code (BGB).
Section 6 Remuneration and terms of payment
(1) The price quoted in the quote for the respective project or in the Agreement shall apply.
(2) Remuneration for the services that are provided shall be paid:
a) each month according to the expenditure in the form of advance payments, the Customer shall make payments within 18 days of receiving the invoice. The Customer shall be in default only after 30 calendar days, assuming the Contractor has fulfilled all of its obligations which are the subject of the advance payment.
b) If no travel expenses have been agreed, travel expenses shall be paid by the Customer at actual cost. Per-diem charges shall be invoiced in accordance with legal guidelines, blanket amounts per kilometre will be charged at €0.5 per km. in addition to other travel expenses.
c) Travelling times will be invoiced at 50% of the agreed daily/hourly rate.
d) All prices are net plus statutory valued added tax.
e) The remuneration is stated explicitly in the specific quote.
(3) If the bases of the prices are changed due to a change at the Customer's business, a new price shall be agreed that takes account of the Contractor's reduced or additional expenses. If the Customer requests a service that was not envisaged, the Contractor shall be entitled to additional remuneration. The Parties shall agree on remuneration before the service is performed. In such case the Contractor is not obliged to provide advance performance.
(4) The Contractor's costing and pricing assumes that the services can be provided without disruption. In case of changes, the monetary changes for elements of the Agreement shall be based on the costing fundamentals for pricing in the Contractor's main agreement.
(5) If the parties cannot agree on a change requested by the Customer, both parties shall try to reach agreement on the subsequent effects. In such case the Customer and Contractor shall try and find a solution that suits both parties.
Section 7 Liability
(1) ACTANO's liability to provide services is based on material damage and financial loss caused by gross negligence or intent. The maximum liability shall be limited to the order value of the agreed service. Personal injury shall be excluded from the liability limitation.
Section 8 Final provisions
(1) If this Service Contract is concluded as an appendix to the Software Licence Agreement, the provisions of this Agreement shall apply in addition to the conditions of use for RPLAN software licences and exclusively for the services to be provided.
(2) The validity and the interpretation of this Agreement are subject to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts and the International Sale of Goods shall not apply.
(3) The place of jurisdiction shall be the Contractor’s registered office.
(4) These terms and conditions of business together with the specific quotes for the project and the documentation listed there contain the entire contractual agreements between the Parties. For any agreement that is formed the Contractor's Standard Terms and Conditions shall apply exclusively, no other Standard Terms and Conditions shall apply, even if the Contractor has not explicitly objected to this.
(5) Should any individual provision or any part of any provision of this Agreement be or become void or unenforceable, the validity of the remaining provisions shall in no way be affected. The Parties to the Agreement shall make all attempts to achieve the purpose of the Agreement and to rectify the partial nullity without delay. In such case the void and/or unenforceable provisions shall be replaced by relative provisions coming as close as possible to the sense and spirit and purpose of this Agreement.