PLEASE READ THIS LICENCE CAREFULLY BEFORE USINGTHIS SOFTWARE. GEDYS INTRAWARE GMBH WILLLICENCE THIS SOFTWARE TO YOU ONLY IF YOU FIRST ACCEPT THE TERMS OF THIS LICENCE. BY USING THIS SOFTWARE YOU AGREE TO THESE TERMS.IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE,PLEASE RETURN THE UNUSED SOFTWARE TO THE PARTY(EITHER GEDYS IntraWare GmbH OR ITS PARTNER) FROM WHOM YOU ACQUIRED IT WITHIN 30 DAYS TO RECEIVE ARE FUND OF THE AMOUNT YOU PAID.
Part 1 – General Terms
This Licence includes Part 1 – General Terms, Part 2 – Countryspecific Terms and the Proof of Entitlement. In the event that the terms in Part 1 conflict with the terms in Part 2 then the terms inPart 2 shall prevail. The Parties agree that this Licence containsthe entire agreement of the Parties and supersedes all prior agreements, understandings or arrangements between them and further each Party acknowledges:(a) that it has not entered into this Licence on the basis of and does not rely and has not relied upon any statement or representation (whether negligently made or innocently made) or warranty or other provision (whether oral, written, express or implied) except those expressly repeated or referred to in this Licence and/or the Schedules; and(b) the only remedy or remedies available with respect to any misrepresentation or untrue statement made to it shall be a claimfor breach of this Licence and/or the Schedules; and(c) each Party further acknowledges that this clause shall notapply to any statement, representation or warranty made fraudulently or to any provision of this Licence and/or the Schedules which was induced by fraud so that nothing in this Licence or the Schedules shall affect the remedies available tothe Parties with respect to such fraudulent matters.
I. Licence – Copyright
II. Charges and Taxes
GEDYS IntraWare GmbH charges a Licence fee for the use ofthis Software. This is specified in the Proof of Entitlement. Charges are based on the type of Licence you have. This is set out in the Proof of Entitlement. If you wish to increase the extent of use please notify GEDYS IntraWare GmbH or its partner and pay any applicable charges. GEDYS IntraWare GmbH does not give refunds or credits for charges already due or paid. If any authority imposes a duty, tax, levy or fee, excluding those based on GEDYS IntraWare GmbH’s net income, upon this Software supplied by GEDYS IntraWare GmbH under this Licence, you agree to pay that amount as GEDYS IntraWare GmbH specifies or supply exemption documentation.
III. Limited Warranty
GEDYS IntraWare GmbH warrants that, in general, this Software meets the current Software Specification (which will only beprovided in digital form) in all material respects and that the Software will conform to its specifications when it is used in the specified operating environment. GEDYS IntraWare GmbH does not warrant uninterrupted or error-free operation of this Software or that it will correct all Software defects. You are responsible for the results obtained from the use of this Software.As this Software is very complex and not completely error-free bynature, GEDYS IntraWare GmbH recommends that you check your work and make a backup copy on a regular basis. Subject to differing regulations of this Licence, GEDYS IntraWareGmbH accepts no explicit or implied responsibility regarding thisSoftware or its user documentation, including quality, design,commercial quality or suitability for a certain purpose other than those expressly set out in this Licence. During the statutory warranty period or the warranty period setout in this Licence GEDYS IntraWare GmbH takes responsibilityfor errors in this Software present at the time of delivery to the Licence holder, in accordance with the following regulations:
1. Errors are defined as deviations of this Software fromcontractually agreed functions as far as these deviations affectthe suitability of this Software for the contractually agreed use.
2. The Licence holder shall communicate any errors of whichhe/she has been informed or has detected himself/herself to the licensor within the warranty period. Obvious defects must benotified within two weeks. Traders must notify hidden defectswithin 20 days after their detection. In the case of hidden defects,the notification period for non-traders complies with the respective legal warranty period. Defects reported late nullified any claims against the GEDYS IntraWare GmbH.
3. The notice of defect must be submitted in writing and contain information on how the defect manifests itself, what effect it hasand under which circumstances it occurs.
4. Upon receipt of the notice of defect, the licensor will rectify the defect within a reasonable timeframe. GEDYS IntraWare GmbHis entitled to perform this rectification by providing the Licenceholder with an altered version of this Software no longer containing this defect.
5. The Licence holder is entitled to the statutory warranty rights of reducing the amount of GEDYS IntraWare GmbH’s claim for payment (to lower it, annul or alter the contract) if it is impossible from the beginning to rectify the defect or if GEDYS IntraWareGmbH does not manage to perform the rectification within anappropriate timeframe and the rectification is then not successfully performed within a further extension granted by the Licence holder. These warranties are final/concluding and in lieu of all other warranties, conditions, whether oral or in writing, express or implied, undertakings, terms and obligations implied by statute, common law, trade usage, course of dealing or otherwise all of which are hereby excluded to the fullest extent permitted by law. No Distributor, Partner, Representative or employee of GEDYSIntraWare GmbH is allowed to change or increase these warranties. Such changes or increases shall only be effective if confirmed by authorised representatives of GEDYS IntraWare GmbH. A software service may be agreed. The term of the softwareservice shall be stipulated in a maintenance agreement. The conclusion of such maintenance agreement shall have no effecton the expiry of warranty of the products on which this agreement is based. Some jurisdictions do not allow the exclusion or limitation of implied warranties, so the above exclusion or limitation may notapply to you. In that event, such warranties are limited in duration to the warranty period. No warranties apply after that period. Any warranty under this Licence is available to the original registered user only.
IV. Limitation of Liability
1. Regardless of the legal argument including illegal actions,GEDYS IntraWare GmbH is only obliged to pay damages if the damages were caused by (1) non-accidental violation of asubstantial obligation (cardinal obligation) on the part of GEDYSIntraWare GmbH in a way which endangers the purpose of the contract being achieved or (2) gross negligence or wilfulness onthe part of GEDYS IntraWare GmbH.
2. As far as GEDYS IntraWare GmbH is liable for the violation of a substantial contractual obligation without gross negligence or wilfulness on the part of GEDYS IntraWare GmbH according to Item IV 1 (1), the liability of GEDYS IntraWare GmbH is limited to typically predictable damages and three times the amount of thefee for the surrender of the software.
3. If GEDYS IntraWare GmbH is liable for gross negligence or wilfulness of employees who are not bodies or executive employees of GEDYS IntraWare GmbH in accordance with Section 1 (1) or (2), GEDYS IntraWare GmbH’s liability is limited to typically predictable damages, at the most, however, to the amount insured for product liability.
4. GEDYS IntraWare GmbH is not liable for indirect damages,deficiency losses or lost profits as long as they were not caused wilfully or by gross negligence of bodies or executive employeesof GEDYS IntraWare GmbH.
5. Liability within the framework of the warranty of qualities shall comply with legal regulations. It is limited to the amount insured for product liability.
6. All GEDYS IntraWare GmbH’s liabilities are limited to such typical damages GEDYS IntraWare GmbH could reasonably expect due to the circumstances known to GEDYS IntraWareGmbH at the time of signing the contract. In particular, the liabilityfor loss of data is limited to the typical recovery efforts occurring when backup copies are made regularly and appropriately.
7. The exclusion or limitation of claims in accordance with the afore-mentioned Sections 1 to 5 includes claims against employees and representatives of GEDYS IntraWare GmbH.
V. Infringement of intellectual property rights
Should claims be made against you that the normal use or possession of this Software infringes the intellectual propertyrights of any third party, GEDYS IntraWare GmbH must immediately and continuously be informed about all matters concerning the alleged infringement of such rights. In the eventof legal proceedings you agree that a lawyer appointed by GEDYS IntraWare GmbH and exclusively bound by GEDYS IntraWare GmbH’s instructions will be appointed and given the complete power of attorney by GEDYS IntraWare GmbH to conduct the proceedings. GEDYS IntraWare GmbH must beprovided with all information and material on the matter. You must not prejudice GEDYS IntraWare GmbH’s defence of the claim and must give all reasonable assistance. GEDYSIntraWare GmbH makes all decisions in this matter.
Any changes to this Licence must be attached in writing to this Licence and agreed to in writing by GEDYS IntraWare GmbH. Nothing in this Licence affects any statutory rights of consumers that cannot be waived or limited by law. GEDYS IntraWare GmbH may terminate your Licence if you failto comply with any of the terms of this Licence. If GEDYS IntraWare GmbH does so, your authorisation to use this Software is also terminated. You agree to comply with applicable export laws and regulations.Neither you nor GEDYS IntraWare GmbH will bring legal action under this Licence more than two years after the cause of action arose, unless otherwise provided by local law, without the possibility of contractual waiver or limitation.Neither you nor GEDYS IntraWare GmbH is responsible for failure to fulfil any obligations due to causes beyond its control.This contract is governed by the law of the Federal Republic of Germany. UN Sales Law does not apply. Unless changed byPart 2, the place of jurisdiction for all disputes occurring due to and in the context of this contract is Eisenach.
VII. Safeguarding clause
Should individual sections of this contract be or become null and void, the validity of the remainder of the contract remains unaffected. The parties to the contract agree to replace these elements by a valid regulation which meets the economically desired purpose as ideally as possible. The same applies in the case of any unforeseen shortcomings.
Part 2 – Country-specific Terms
UNITED KINGDOM:Limitation of Liability (Section IV.)The following paragraphs replace the complete section:1) GEDYS IntraWare GmbH accepts full responsibility for anypersonal injury or death caused by its negligence and such other liability which cannot be excluded or limited by law. 2) Subject to clause IV.1 above GEDYS IntraWare GmbH’smaximum liability and your sole remedies (running from the dateof this Licence) arising out of any claim in contract, tort (including negligence, breach of statutory duty (or other legal liability)pursuant to this Licence shall in no circumstances exceed 3x the cost of Software.3) Subject to clause IV.1 above GEDYS IntraWare GmbH shall not be liable to you for loss of revenue, business profits,anticipated profits or business, goodwill, contracts, loss of data orfor any indirect, consequential or special loss whether arisingfrom negligence, breach of contract or howsoever. This subclause applies not withstanding that GEDYS IntraWare GmbH may have known or been advised of the possibility of such loss.4) Subject to clause IV.1 save as expressly provided in this Licence there are no other conditions, warranties or representations (express or implied) with respect to this Software and any condition implied by law which is capable of being excluded is expressly excluded. General (Section VI)This contract is governed by the law of the Federal Republic ofGermany. UN Sales Law does not apply. The place of jurisdiction for all disputes occurring due to and in the context of this contractis Eisenach. The following two sections are added to Section I-VII:VIII. Assignment You shall not assign or otherwise transfer this Licence without the prior written consent of GEDYS IntraWare GmbH.IX. Rights of Third Parties Unless expressly provided in this Licence, no term of this Licenceis enforceable pursuant to the Contracts (Rights of Third Parties)Act 1999 by any person who is not party to it.