General terms and conditions of software and delivery
These terms apply to all contractual relations and pre-contractual negotiations with customers, regardless of the nature and extent of performance under current and future business relations.
The terms and conditions of Eleco Software GmbH (hereinafter abbreviated Eleco) shall exclusively apply: Adverse business conditions of our contractors or third parties are only valid if this was expressly agreed in writing. If the customer should not agree, he must immediately indicate his refusal in writing. In this case, Eleco reserves the right to withdraw the offer, without being hold responsible in the case of any claims that may arise. Eleco contradicts expressly any standard reference to your own terms and conditions.
Conclusion and Writing
Eleco only enters into a contractual obligation if the nature and extent of service and consideration from both sides have been made in writing. Subsequent oral amendments and supplements are only effective if they are subsequently confirmed in writing. The same applies to all declarations of intent, in particular complaints, reminders and claims in the context of contractual relationships.
Supply of Software
License and extent of use
Eleco, who is the owner and holds all rights on their products, grants to the customer the non-transferable and non-exclusive right to use the software specified in the offer or bill and, if available, to use the documentation. Area of application, capacity, and all other specific program characteristics are determined solely from the documentation accompanying the program. The customer acquires the right to use the software on as many (possibly in a local area network) work stations set up, as he has purchased licenses. Basis for assessment is the number of licenses listed on the corresponding invoice, as appropriate, any special arrangements (site licenses, national & global corporate licenses). As a working station in the network also apply home offices belonging to the network, portable computers and remote workstations at times connected to the network. As long as the mentioned only serve as a substitute for the local area network workstations, no additional license is essential. If the agreed number is exceeded, error-free operation is not guaranteed. Using the software on portable computers is deemed to be a simultaneous operation.
Property and Copyrights
The software delivered to the customer including all documentation remains the property of Eleco. Eleco remains owner of all copyrights and rights of the licensed programs including the corresponding documentation material, even if the customer changes them or combines them with their own programs and / or those of a third party. The customer, who made such changes or connections or copies, is responsible for the appropriate copyright notice. Changes and extensions of the program code to be carried out on request and expense of the customer are the property of Eleco. After the approval of the customer, these changes can be made available to further customers. The rights of use for program improvements will be assigned to Eleco. Eleco takes the assignment. Eleco is not liable for damages that may occur if the customer or a third party modified the program or if the use of a program not supplied by Eleco interferes with the system.
In order to use the software indefinitely, a one-time license fee, paid by the customer, is required. The amount of the license fee is based on the current price list or any special agreement according to the order or invoice. If the customer’s payments become 30 days overdue, Eleco is entitled to charge interest at the rate of 5% above the applicable annual base rate.
Neither the licensed programs nor the documentation material may, in whole or in part, be made accessible to third parties with the possibility of misuse. The customer may not change our labels, copyright marks and property information to the programs in any form. He has to commit to his employees accordingly.
Eleco can cancel the contract with immediate effect if the customer is longer than two months in arrears with the agreed payment of royalty, and / or the customer - after a written warning - continues to infringe upon any provision of these Terms or any other individual contractual arrangement. The customer may terminate this contract due to delay of performance of the part Eleco or because of unrecoverable defects only if Eleco has not fulfilled its commitments and if Eleco was previously reprimanded in writing and a reasonable period has passed, in which the alleged infringement has not been eliminated. Within five days after the termination of the license the customer is to destroy all related programs, copies and related materials, including modified or combined programs, unless they have to be kept by law. The customer confirms unsolicited within 30 days of the destruction or retention by law in writing to Eleco.
If the software is protected by a dongle (Hardlock, Dongle), it is strongly recommended to the licensee to insure themselves against the possible loss of the copy protection. The copy protection represents the list price of the license and associated software so that, in the case of loss, a corresponding initial purchase is applicable.
Services of Eleco are done to support customers in implementing their projects. The customer is responsible for the project and its outcomes. Eleco determines the way and conditions of the service. Customers’ wishes shall be taken into account, where possible.
The customer and Eleco mutually engage to respect the confidentiality of all documents and information expressly designated as confidential or clearly recognizable not intended for third parties.
Shipping, Warranty & Disclaimer
Delivery and Delivery Dates
Delivery dates and times are in principle non-binding, unless they are expressly agreed in writing as fixed dates. Eleco reserves the right to adjust the specifications of the licensed product, for example, to technological developments, legislative changes or future market requirements. Source codes are not part of the delivery. The same is true for individual adjustments or enhancements to the software. In case of loss of the software, the password and / or possibly included printed documentation, Eleco deliver, against payment of the manufacturing costs, a replacement copy (if this is still available). Eleco ensure the proper running of the software on the operating systems decontrolled by Eleco.
Eleco warrants for a period of twelve months from the date of surrender, that the software basically meets with regard to their functioning as described in the documentation. If the customer is a consumer within the meaning of the Civil Code, so the warranty period is two years. Liability for a certain condition exists only when this has been expressly agreed in writing. Eleco points out that, according to the state of the art, it is not possible to produce computer software completely without any errors. The customer will inspect the standard software immediately after delivery and immediately notify the seller in writing of obvious errors. If an error in the software occurs, the customer is obliged to report this in writing within two weeks with us. As part of the written complaint, the defect and its manifestations are described in such detail, that a review of the defect (e.g. provision of error messages) and the exclusion of a user error (e.g. indicating the steps) is possible. If the complaint is found to be justified, the customer grants Eleco a reasonable period for rectification. The customer tells Eleco, what kind of correction - improve or supplying a new, faultless version - he prefers. Eleco is entitled to refuse the remedy, if this can be done only at disproportionate costs on Elecos side and if the other type of remedy has no significant disadvantages for the customer. Eleco can also refuse the correction, if feasible only at disproportionate costs at the expense of Eleco. The customer grants Eleco two attempts to carry out the rectification of the same or directly related defect within the time limit set by the customer. After the second failed attempt, the customer can cancel the contract or reduce the license fee. The withdrawal or reduction may be exercised after the first unsuccessful attempt if a second attempt cannot be expected within the time allowed. If, under the above conditions, Eleco refuse the rectification, the customer has the right to either reduce the price or to withdraw from the contract immediately. Withdrawal due to a minor defect is excluded. In the case that a correction of an error is actually impossible for economic reasons, Eleco is entitled to provide an alternative solution if this leads to a suitable solution to the problem. Eleco does neither warrant that the software meets specific needs of the customer, nor that it works together with programs of the customer or the customer's existing hardware. If the customer makes a claim on Eleco, and it appears that either there is no defect or alleged defect does not oblige us to warranty, the customer has to make up for the time, effort and expenses incurred, if he has to defend our use of gross negligence or wilful misconduct.
Limitation of liability and limitations
Eleco is liable for intent and gross negligence in accordance with the regulations. In the event of slight negligence, Eleco is liable only if an essential contractual obligation (cardinal obligation) is violated, or in the case of delay or impossibility. In the case of liability for simple negligence, such liability shall be limited to the amount of the order as well as to those damages that are typical or predictable. This limitation of liability applies to liability for simple negligence in the case of an initial inability on ELECOs side. A liability for the lack of promised features, for fraudulent intent, for personal injury, defect of title, according to the Product Liability Act and the Federal Privacy Act, remain unaffected. In the event of a claim for company liability, the contributory negligence of the customer has to be taken appropriate account of, particularly for inadequate error messages or insufficient data protection. “Insufficient data protection” applies, in particular, if the customer has failed to protect the individual data or the entire database, by, according to the state of the art, appropriate security provisions against external events, especially against computer viruses and other phenomena. Unless good cause shown, further claims of the customer - for whatever legal reasons - are excluded. Eleco is not liable for lack of economic success, indirect and consequential damages and for damages resulting from claims of third parties. The statute of limitations for non-essential breach of the contract is limited to two years. Eleco exclude any liability for freeware products, e.g. the so-called o2c player, and for beta versions; the use is always at your own risk. However, Eleco endeavour to publish them without significant or known deficiencies.
Jurisdiction, Place of Fulfilment
The entire business between Eleco and its clients is subject to the law of the Federal Republic of Germany. If this law refers to foreign legal systems, such referrals shall be ineffective. The application of the CISG (UNCITRAL) is expressly excluded. Place of Performance is Hamelin. Place of Jurisdiction for both parties is Hanover. Eleco is entitled to lodge their claims to the place of jurisdiction of the partner. If the contractor is not a merchant, the statutory scheme applies.
In addition, the license terms apply, which are available on installation. The license agreements complete and expand these Terms; in the event of contradictory passages, the appropriate priority scheme in the license agreement shall apply, unless the passages are invalid or not applicable.
Explanatory note of information requirements
Eleco and their authorized service provider record and use your personal data in order to process your order / request and for reasons of customer care in accordance with legal requirements.
Right of objection for individuals (consumer in terms of the Civil Code)
In the event of effective cancellation the mutually received benefits have to be returned. There is no duty regarding a replacement of the goods or a compensation for the use of the goods. In the case that the consumer is not in a position to return the goods wholly and completely or he returns them in deteriorated condition, the customer must pay the seller compensation for the value. This does not apply if the deterioration of the goods is solely a result of their examination - as it would have been possible in a shop. The customer is not bound to pay a compensation for lost value of the goods, as long as the deterioration was caused by the designated use. Goods that are eligible for shipping in packages are to be returned at the risk of the seller. The consumer has to bear the cost of return if the delivered goods are in accordance with the goods ordered and if the price of the commodity does not exceed 40 euros or if the price is higher than 40 euros, but, at the time of the revocation, the consumer has neither reciprocated nor fulfilled the contractually agreed part payment on his part. Otherwise, the return of the goods is free of charge for the consumer. Not parcel post eligible goods will be collected from the consumer. Obligations to reimburse payments must be made within 30 days. The period begins on the consumer side with the mailing of notice of cancellation or the goods, on the seller side with their reception.
Exclusion of withdrawal
The right of withdrawal may not apply to contracts for supply of goods to be manufactured according to customer specifications or clearly tailored to personal needs or which are not, due to their condition, suitable for return or whose expiration date has passed.
This document is an English translation for convenience purposes. In case of conflict, the German language version of the Contract prevails.