Modified Date: 09.10.2020
§ 1 Object of the Agreement
1. mediCAD Hectec GmbH provides to the customer the non-exclusive right of use of the software specified in the order form with the following conditions.
2. Data material (files, databases) is part of the license, insofar as it is part of the software specified in the order form. If future software updates and/or upgrades (additions) are provided to the customer by mediCAD Hectec GmbH, the license terms and conditions of this contract shall apply as well. mediCAD Hectec GmbH is not obliged to further development of the software.
§ 2 Delivery
1. The software and/or the license key are provided to the customer via download. A digital user documentation included in the delivery content
2. The time of delivery is specified on the order form.
§ 3 Extent of Use
1. The customer is entitled to use the software specified in the respective order form. “Use” defines the non-exclusive use of the provided software on the hardware approved by the manufacturer.
2. Copying of the provided software is only permitted to the extent of the intended use of the software. This includes downloading from the manufacturer/distributor, installing on a hard drive and installing on the respective clients, as far as this is technically required for proper use.
3. Decompiling of the software source code into any other form is forbidden.
4. The customer is not authorized to transfer the above listed rights onto a third party or to grant rights of use to a third party.
§ 4 Industrial Property Rights
1. Notwithstanding the granted rights of use all rights on the software and the user documentation including all copies or partial copies created by the customer shall be retained by mediCAD Hectec GmbH.
2. The customer is obliged to keep all copyrigth notices of the software and the user documentation unchanged, such as copyright marks and other reservation of rights, as well as to apply them to all fully or partially created copies in their original form.
3. The customer is obliged not to provide the software to a third party without explicit written consent of mediCAD Hectec GmbH, neither in its original form nor as full or partial copies. This shall also apply in case of a full or partial sale or liquidation of the customer’s company. Employees of the customer and other persons staying at the customer’s facilities for reason of software use and documentation for the customer as per agreement are not deemed a third party.
4. The customer is obliged to completely delete the software before selling or otherwise passing on any recording medium, data storage device or hardware containing the software covered by this contract.
§ 5 License fee
In order to receive/purchase the rights of use, the customer has to pay the license fee or royalty specified in the order form. VAT is charged separately. Unless otherwise specified, payments are due immediately after billing, without any deduction. When downloading the software from the manufacturer or distributor, the license fee has to be paid e in advance. A conclusion of a service agreement with mediCAD Hectec GmbH is mandatory and is due in a 12 month interval.
§ 6 Warranty
1. Both parties agree, that it is not possible to develop software in such a way that it will function flawlessly in all conditions and usage environments.
2. mediCAD Hectec GmbH warrants the contractual use of the software and the user documentation in the version provided to the customer in compliance with the specification valid at the time of delivery and available to the customer at the time of the formation of the contract. In case of significant deviations of the specification, mediCAD Hectec GmbH is entitled to respective improvements. If mediCAD Hectec GmbH does not succeed to resolve any deviations by way of subsequent improvement within an appropriate period of time, or to circumvent the problem in a way allowing the customer the contractual use of the software, the customer is entitled to demand a reduction of the license fee or to terminate the license without notice. The obligation to improvement ends six months after the software is provided.
3. The customer is obliged to provide to mediCAD Hectec GmbH verifiable documents with regard to type and occurrence of deviations of the specification and to cooperate on the elimination of bugs and errors.
4. The warranty excludes flaws and errors resulting from a deviation of the operating conditions designated for the software and stated in the specification.
§ 7 Limitation of Liability
1. mediCAD Hectec GmbH is only liable for damages – for whatever legal reason – if the damage
(a) is caused by culpable violation of an essential contractual duty (cardinal duty) in a way jeopardizing the achievement of the purpose of the contract, or
(b) is based on intent or gross negligence.
2. If mediCAD Hectec GmbH is liable for violation of an essential contractual obligation according to section (1) without intent or gross negligence, the liability is limited to the extent of damage which has to be typically expected by mediCAD Hectec GmbH at the time of the formation of the contract based on the circumstances known at that point.
3. The limitation of liability according to section (2) shall also apply for damages caused due to intent or gross negligence of employees or representatives/appointees of mediCAD Hectec GmbH which are not the CEO or part of mediCAD Hectec GmbH management.
4. In cases according to section (2) and (3), mediCAD Hectec GmbH is not liable for loss of earnings, absence of savings, indirect damages and consequential harm caused by a defect.
5. mediCAD Hectec GmbH is only liable for for loss of data and data recovery in cases according to sections (1) to (4), if such a loss of data was not avoidable despite appropriate backup measures by the customer.
6. The limitations of liability according to sections 1 to 5 shall apply analogously to employees and representatives/appointees of mediCAD Hectec GmbH.
7. Potential liability of mediCAD Hectec GmbH for the absence of promised characteristics or on the basis of the Act on Product Liability law remains unaffected.
§ 8 Software Maintenance and Support
1. The customer has a right of support by phone for the purchased software if he uses the latest version of the software. This shall also apply after expiration of the statutory warranty period of two years.
2. The Support by phone includes the individual consulting for the contractual software products by mediCAD Hectec GmbH. Within the scope of this individual support, mediCAD Hectec GmbH answers questions regarding a specific case of application regarding the supported software, user documentation as well as program run and application of the supported software products during its business hours.
3. Purpose of the Support is to enable the customer to realize specific cases of application appropriate and to solve or to avoid problems by himself. A problem solution as well as a general briefing or instruction in the application of the supported software is not owed. Therefore only qualified customers who are experienced in dealing with the supported software and the respective system environment are entitled to claim support.
§ 9 Third Party Intellectual Property Rights
1. mediCAD Hectec GmbH will defend the customer against any claims deriving from violation of intellectual property rights by using the software according to contract within the Federal Republic of Germany. mediCAD Hectec GmbH takes over all court imposedfees and sums of indemnity, as far as mediCAD Hectec GmbH is immediately notified about such claims and all defensive measures and settlement conferences remain reserved to Hectec GmbH.
2. In case of claims being asserted or expected to be asserted against the customer according to section (1), mediCAD Hectec GmbH is entitled to change or replace the software and documentation at their own expense. If this or obtaining the rights of use is not possible within reasonable effortsthe contractual parties are entitled to terminate the license for the software affected without notice. In this case, mediCAD Hectec GmbH is liable for any damages to the customer resulting from the termination in accordance to § 7.
3. mediCAD Hectec GmbH has no obligations whatsoever, if any claims according to section (1) are based on software or data provided by the customer, or on not using the software and the data contained herein in a valid, unmodified original version provided by mediCAD Hectec GmbH, or on using the software in other operating conditions than listed in the specification.
§ 10 Termination, Return and Deletion of License Material
1. This contract can be terminated by both parties without notice forgood cause. This shall particularly apply to non-compliance with the provisions of § 3 (Extend of Use) and § 4 (Trademark Rights).
2. With a termination according to section (1) coming into effect, notwithstanding the time and reason of the termination, the customer is obligated to return the original as well as all copies and partial copies of the software to mediCAD Hectec GmbH. If software is stored on the customer’s data storage devices, instead of returning the software, the respective data has to be completely deleted.
§ 11 Final Provisions
1. Verbal sub agreements to this contract are deemed void. Any change or addition whatsoever requires written form.
2. If the customer is a merchant, a legal entityunder public law or a special fund under public law or has a place of business in a foreign country, Landshut, Germany, is agreed upon as place of execution for all deliveries and services of mediCAD Hectec GmbH as well as exclusive place of jurisdiction for any disputes arising as a result of the business relationship.
3. The law of the Federal Republic of Germany shall apply exclusively. The UN Convention of Contracts for the International Sale of Goods is excluded.
4. Should the contract contain provisions deemed non-effective, impracticable, disputable or null and void, the validity of the remaining contract shall in no way be affected. Both parties agree to replace any such non-effective, impracticable, disputable or null and void provision with a valid and enforceable provision that reflect as closely as possible the original commercial intention of the parties.
The software license conditions of mediCAD Hectec GmbH are expressly agreed upon and accepted when purchasing the software.