License Agreement
The use of convert4print is subject to the terms and conditions of the author and sole copyright holder of the software, SPE Systemhaus GmbH. By using the software the customer ("licensee") agrees to the following license terms for this software. If he cannot agree to the license terms, or if he is not allowed to use this license according to the conditions of §4, the customer must delete this software from all his computers.
In return for purchasing a license to use the software of SPE Systemhaus GmbH ("SPE"), which may include third-party software, and the related documentation, you agree to the following terms:
§1 Scope of Application
(1) The present conditions regulate the permanent transfer of the software from SPE Systemhaus GmbH (SPE) to entrepreneurs within the meaning of § 14 BGB (German Civil Code) as end users (licensees). They shall apply in all cases in which SPE provides the licensee with software for his own long-term use.
(2) Further services, such as installation, integration, parameterisation, adaptation, training, instruction, software maintenance etc. are not subject to these terms and conditions and may be subject to separate contracts.
§2 Definitions
(1) Products are convert4print and programs to be developed in the future that are not developed within the scope of these products.
(2) Components are the components - individual program modules - of a product. A product usually consists of several components, which represent the product in their entirety. It is possible to use only a part or also all components of a product in order to realize a customer requirement.
(3) Software is the generic term for products and components.
(4) User licenses are granted for specific components.
§3 Subject matter of the contract
(1) The licensee shall acquire from SPE the rights of use to the software (software) and the associated documentation specified in the licence certificate under the terms of this agreement.
(2) The associated documentation is provided exclusively in German and in electronic form and can be downloaded from the SPE website (http://www.spe-systemhaus.de).
(3) The source code of the software is not subject of the contract. The software is only delivered in object code. If open source programs or libraries are part of the software, their source codes will be made available in the version used for creating the software in accordance with the respective license terms of these programs or libraries.
(4) Insofar as the scope of delivery also includes third-party software, this shall be provided in accordance with the license terms of the respective manufacturer. This third-party software is expressly named in the license certificate.
(5) The quality and functionality of the software as well as the required system environment shall be determined conclusively from the license certificate and the documentation belonging to the software. The descriptions of the software contained therein are performance descriptions and not guarantees, unless they are expressly referred to as guarantees.
§4 Conclusion of Contract, Licensee
(1) Unless otherwise agreed, a contract for the provision of the software by SPE shall be concluded by the licensee receiving the license certificate and these license conditions (offer) and the licensee accepting these license conditions (order).
(2) Licensee is the natural or legal person designated in the license certificate and the license file. Their name also appears in the title bar of the individual program dialogs. The Licensee may use the Software himself, in his own company and in affiliated companies pursuant to § 15 of the German Stock Corporation Act (AktG) for his own purposes.
§5 Licensee's Terms and Conditions of Purchase
(1) Licensee's conditions of purchase which deviate from these license conditions shall not become part of the contract even if SPE accepts and executes an order of Licensee without expressly contradicting the conditions of purchase.
(2) If the Licensee has to generate an order for its internal processing, it shall formulate the text of the order in such a way that it complies with these License Terms and the License Certificate.
§6 Rights of use
(1) Against full payment of the agreed remuneration, the licensee acquires the simple, non-exclusive, unlimited right to use the software. The permissible use includes the installation of the software, loading into the working memory and the intended use by the licensee. The type and scope of the permitted use are specified in the license certificate.
(2) The software is provided to the licensee within the scope of a dedicated or non-dedicated user license. A dedicated license is firmly assigned to a certain component and enables the permanent use of the component. A non-dedicated license can be used by several components of the same type in time-division multiplexing. The number of non-dedicated licenses then only determines the number of simultaneously executable components of this type. Non-dedicated licenses are not available for all components.
(3) The licensee is entitled to make an appropriate number of backup copies of the software exclusively for data backup and archiving purposes, provided that all existing identifiers, licensing data, trademarks and copyright notices are taken over unchanged and completely during duplication and unauthorized access of third parties to the software is prevented.
(4) Any further use is prohibited unless expressly agreed in this contract or in the license certificate.
§7 Restriction of use
(1) The licensee is not entitled to modify, adapt, translate, distribute or produce a derivative version of the software or of individual parts of the software in cases other than those expressly permitted by law or this contract.
(2) The Licensee shall not be entitled to rent out or otherwise sub-license the acquired Software, to publicly reproduce or make available it by wire or wireless means or to make it available to third parties (apart from the following provision in §8) against payment or free of charge (Application Service Providing, Software as a Service, Cloud Computer or similar).
(3) In order to protect the trade secrets contained in the Software, the Licensee may not decompile, reverse engineer, disassemble or otherwise return the Software to a form understandable to humans, except in cases expressly permitted by law.
(4) Licensee may not modify or remove any company, trademark, trade name, copyright or other proprietary notices contained in the Software. This shall also apply to license numbers contained in the Software or other features serving to identify the individual copy.
§8 Passing on the software
(1) The licensee is entitled to sell the purchased software, including any versions received within the scope of a subscription agreement, to a third party. The prerequisite for this is that the third party hands over the software in its original state with all received data carriers, as a whole together with the license file, a copy of this license agreement as well as the associated documentation to the subsequent licensee. Further prerequisite is that the original licensee completely gives up the use of the program, removes all installed copies of the program from his computers and deletes all copies on other data carriers or hands over SPE or the subsequent licensee. The Software may only be passed on if and to the extent that the new Licensee accepts the scope of use agreed in §5 and the restrictions of the rights of use agreed in §6.
(2) At the request of the SPE, the Licensee shall be obliged to confirm in writing full compliance with the conditions for transfer laid down in para. 1 and, if applicable, to state the reasons for and duration of a statutory retention period. After the transfer of the licence, the licensee shall only be entitled to use the licence to the extent covered by the legal obligation to retain it. Any further use of the software or documentation is prohibited.
(3) If the aforementioned prerequisites for the transfer of the rights of use are met, the rights of use shall be transferred to the new Licensee in accordance with the provisions of this License Agreement. The new licensee is entitled to use the software even if the license file has not been rewritten to his name or company. Upon request and against reasonable compensation for the expenses incurred, SPE shall issue a new license file.
(4) These provisions shall also apply to a renewed transfer to another licensee.
§9 Licensing, licence control
(1) A so-called management console, which controls the granting of licenses to the individual software components within an installation, serves as protection against infringement of SPE's copyrights and rights of use. This console is installed as a network service on any computer in the licensee's network and must be active for the duration of the use of the software.
(2) The Management Console requires either a (black) USB key (which must be installed on the computer of the Management Console) or a connection tunneled via the Internet to a server of the SPE for authentication during its entire runtime.
(3) A backup management console can be operated on a second computer to ensure operation in the event of a management console failure. This works according to the management console either with a second (red) USB key or is connected to a second server of the SPE. With the backup management console a failure of 30 days can be bridged. After use, the Backup Management Console must be released by the SPE for a further 30 days.
(4) The order of a new USB key as a replacement for damaged, unusable or lost (red) USB keys shall be made against the remuneration stated in the price list. Insofar as SPE is obliged to provide a warranty, this shall be in accordance with the statutory provisions.
(5) The licenses mentioned in the license certificate shall be brought to the attention of the management console in the form of a signed license file. This license file can be exchanged for extensions without interrupting operations.
§10 Copyright, retention of title
(1) The software is protected by copyright. The copyright covers the program code, the documentation, the appearance, the structure and organization of the program, all program names and all logos within the licensed software.
(2) All rights to the software and the associated documentation, in particular the exercise of all property rights, shall belong exclusively to SPE. The licensee receives only the rights of use described in this license agreement and in the license certificate for the software and the associated documentation.
(3) The SPE expressly reserves the permanent granting of the rights of use regulated in this contract for the software and the associated documentation as well as the ownership of the delivered data carriers, the licence file and other items until the agreed remuneration has been paid in full.
(4) If the delivery takes place before full payment of the agreed remuneration, the customer acquires a non-exclusive, non-transferable right to use the standard software including associated documentation to the contractually agreed extent ("provisional right of use") for the period between receipt of the delivery and full payment ("pending period"). SPE may initially supply a temporary license file for the pending period. The provisional right of use during the suspension period shall end if SPE withdraws from the contract due to the Licensee's default in payment. The provisional right of use shall automatically expire if the Licensee acquires the permanent right of use by paying the full remuneration. After full payment of the agreed remuneration, SPE shall exchange a time-limited licence file delivered to the Licensee for a licence file of unlimited duration.
(5) During the suspension period pursuant to para. 4, the Licensee may not pass on the Software and associated documentation pursuant to § 8.
§11 Remuneration, due date
(1) The remuneration for the provision of the software and associated documentation is set out in the license certificate.
(2) All prices are to be paid plus the statutory value added tax.
(3) The Licensee shall be obliged to pay the remuneration to SPE without deduction upon invoicing.
§12 Warranty for material defects and defects of title
(1) SPE warrants the agreed quality of the software and the associated documentation as well as that the licensee can use the software in accordance with the contract without infringement of third-party rights. The warranty does not apply to defects resulting from the Software being used in a hardware or software environment that does not meet the requirements specified in the license certificate.
(2) The Licensee shall inspect the software and the associated documentation immediately upon receipt in accordance with § 377 HGB (German Commercial Code) insofar as this is feasible in the ordinary course of business and, if defects become apparent, shall notify the SPE thereof without delay. If the SPE is not notified, the software and associated documentation shall be deemed to have been approved unless the defect was not identifiable during the inspection. The same shall apply if such a defect becomes apparent later. Otherwise § 377 HGB applies.
(3) If a material defect of the delivered software or the associated documentation is present at the transfer of risk to the licensee, SPE shall be entitled to remedy the material defect either by delivery of a new defect-free release version (new delivery) or by elimination (subsequent improvement) at its discretion.
(4) The removal of a material defect may also consist, at SPE's option, in SPE providing the licensee with reasonable telephone, written or electronic instructions to avoid the material defect.
(5) If SPE is unable to remedy a material defect within a reasonable period of time or if the rectification or replacement is to be regarded as having failed for other reasons, the licensee may, at his discretion, withdraw from the contract or reduce the remuneration. The repair or replacement shall not be deemed to have finally failed upon the second attempt. Rather, SPE shall be free to decide on the number of attempts at subsequent performance during the periods for rectification or subsequent delivery. A failure of the rectification or the new delivery can only be accepted if SPE seriously and finally refuses these actions, unreasonably delays them or if other special circumstances exist which make further waiting unreasonable for the licensee.
(6) If it turns out in the course of troubleshooting that the software delivered by SPE did not have a material defect at the time of passing of risk, SPE shall be entitled to invoice the licensee for the expenditure associated with the troubleshooting and error processing in accordance with the then valid price list of SPE for services; This applies in particular if the reported error is caused by unsuitable or improper operation, faulty installation by the Licensee or by a third party commissioned by him, by the use of the software in a system environment that has not been agreed or by improper intervention in the software by the Licensee or a third party commissioned by him (e.g. for the purpose of troubleshooting).
(7) The Licensee shall be obliged to notify SPE immediately of any material defects found, stating the type of material defect and the program sequence in which the material defect occurs. In doing so, the Licensee shall observe any formal requirements of SPE for the notification of defects and, in particular, shall use a malfunction report form provided by SPE. The licensee shall be obliged to support SPE free of charge in troubleshooting and processing the defects to the required extent, in particular to make available the data, information and files required for troubleshooting, and to take the necessary measures on his side. The licensee is obliged to take over a new release of the software delivered by SPE, provided that the contractually agreed functional scope is maintained and the installation does not lead to unreasonable adjustment and conversion costs for the customer.
(8) Insofar as the contractual use of the software and associated documentation supplied by SPE leads to the infringement of copyrights or other industrial property rights of third parties, SPE shall, at its own expense and at its option, either procure for the licensee the right to further contractual use or modify or replace the software or documentation in a manner reasonable for the licensee in such a way that there is no longer any infringement of rights of third parties. If this is not possible under economically reasonable conditions or within a reasonable period of time, both the Licensee and the SPE shall be entitled to withdraw from the contract. The SPE shall indemnify the licensee against undisputed or legally established claims of the holders of the industrial property rights.
(9) The obligations of the SPE referred to in para. 8 shall only apply if the licensee informs the SPE immediately of the infringements of industrial property rights asserted against him, supports the SPE to a reasonable extent in defending the asserted claims, if necessary assists the SPE in modifying or replacing the software in accordance with para. 8, and if the SPE is informed by the licensee of the infringements of industrial property rights asserted against him. 8, all defensive measures, including out-of-court agreements and acknowledgements, are reserved exclusively for the SPE or are exercised in consultation with the SPE, and the infringements of property rights are neither based on an instruction by the licensee nor on an unauthorised modification or unauthorised use of the software by the licensee.
(10) All claims of Licensee based on material defects or defects in title of the Software or the associated documentation, with the exception of claims for damages, shall become statute-barred one year after delivery of the Software to Licensee. This shall not apply to defects which SPE maliciously concealed, intentionally or grossly negligently caused and also not insofar as a guarantee in the sense of § 443 BGB (German Civil Code) has been assumed for the quality.
§13 Liability
(1) Irrespective of the legal basis, the SPE shall be fully liable for damages resulting from injury to life, limb or health resulting from an intentional or negligent breach of duty by the SPE or an intentional or negligent breach of duty by a legal representative or vicarious agent of the SPE in the absence of a guaranteed quality within the meaning of § 443 BGB and for damages caused intentionally or through gross negligence by the SPE or a vicarious agent or legal representative of the SPE.
(2) In the event of a breach of an essential contractual obligation which was decisive for the licensee for the conclusion of the contract, SPE shall be liable, insofar as no case mentioned in para. 1 exists, only for the damage typical for the contract and reasonably foreseeable at the time of conclusion of the contract.
(3) Any further liability of SPE for damages or reimbursement of futile expenses shall be excluded. Liability under the Product Liability Act shall remain unaffected.
(4) When concluding the contract, SPE shall assume that 500,000 Euro per case of damage, but a maximum of 2 million Euro in total, shall be sufficient to cover the typical contractual damage referred to in para. 2 to be indemnified and reasonably foreseeable at the time of concluding the contract. If the Licensee is of the opinion that his risk of loss is not covered by the aforementioned amounts, he shall draw the attention of the SPE to this fact prior to the conclusion of the contract so that the parties can agree on an appropriate coverage of this additional risk.
(5) The licensee shall be responsible for regularly backing up his data. Any liability for the loss of data shall therefore be limited to the recovery costs that would have been incurred if the data had been backed up regularly and in accordance with the current technical standard.
§14 Applicable law, place of jurisdiction, mediation clause, miscellaneous
(1) The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between the contracting parties. The application of the UN Convention on Contracts for the International Sale of Goods is expressly excluded.
(2) Place of performance and exclusive place of jurisdiction for all legal disputes arising from or in connection with this contract shall be the registered office of SPE.
(3) All disputes arising from or in connection with this contract shall first be settled by the parties by mediation by an extrajudicial mediator. Only if the mediation does not take place or ends without the dispute being fully resolved shall the parties have access to the courts. The parties are not prevented from filing applications in proceedings for interim relief or other summary proceedings. In all other cases, one party must grant the other party the possibility of mediation before initiating a legal dispute.
(4) If the parties are unable to agree on a mediator, the mediator shall be appointed by EUCON, Europäisches Institut für Conflict Management e.V., Schackstraße 1, 80539 München, Tel. +49 / 089 / 57 95 18 34, Fax +49 / 089 / 57 86 95 38, info@eucon-institut.de, www.eucon-institut.de at the request of one of the parties.
(5) Should any provision of this License Agreement be or become invalid, this shall not affect the validity of the remaining provisions. As far as the ineffectiveness does not result from a violation of §§ 305 ff. BGB (control of general trading conditions), an effective regulation is considered as agreed in place of the ineffective regulation, which comes economically next to the regulation desired by the parties. The same shall apply in the event of a loophole in this license agreement.
SPE Systemhaus GmbH, Waldstraße 7, D-63150 Heusenstamm, Release May 2018
