General Terms and Conditions & Software Purchase Agreement – Refractive Software LTD – As of 2010
1. General Information – Scope of validity
1.1 These general terms and conditions of business are applicable to our agreements regarding the sale of software. In particular, the subject matter of these agreements is not the installation and maintenance of software or the supply of hardware, unless agreed otherwise.
1.2 The following general terms and conditions of business are applicable to all agreements between us and the client. In each case, the version applicable at the time of concluding the agreement is authoritative.1.3 Deviating, contradictory or supplementary general terms and conditions of business shall not become a valid part of the agreement, even if we are aware of these, unless we expressly consent to their validity in writing.
2. Conclusion of the agreement/Delivery
2.1 Our offers are subject to change without notice. The offer on our homepage is non–binding. We reserve the right to make changes. The agreement with the client shall be effected only by the declaration of acceptance by us (in electronic form or by e–mail as well) or by the provision of services.
2.2 With the order, the client declares his binding offer of agreement. We will immediately confirm receipt of the client's order. The client must check to see that the software specifications meet his goals and requirements before the agreement is concluded, using the freely available demo version of the software provided on our homepage. He is conversant with the functional characteristics and specifications of the software.2.3 We are entitled to accept the offer of agreement contained in the order within three (3) working days after receipt. We are entitled to decline the order without providing any reasons.2.4 The client shall be immediately informed if the software is not available or only partially available.2.5 We shall make every effort to provide delivery within 1 week of acceptance of the order at the latest. We are entitled to deliver in phases.2.6 Unless agreed otherwise, the client is authorized to use the software on one (1) workstation. The client has no claim to the transfer of the source code for the software.2.7 We shall provide all deliverables and services using state–of–the–art technology.2.8 Delivery or service deadlines specified shall not be binding unless we provide written commitment for the same. 2.9 The software may be obtained via downloads only. Usage instructions and documentation are available and included with the software download.
3. Retention of title/Utilization rights
3.1 We shall retain the title to the software until complete payment of the purchase price. The client is obligated to handle the software with the utmost care in the meantime.
3.2 We are authorized to withdraw from the agreement and demand the return of the software if the client's conduct is contrary to the terms of the agreement, especially in the case of delay in payment. The client may also be obligated to delete the software and provide proof of having done so.3.3 The software is legally protected. We are exclusively entitled to the copyright, patent rights, trademark rights and all other ancillary copyrights to the software. Any rights that a third party is entitled to have been procured by us.The client may use the software supplied on licensed workstations for his own purposes (non–exclusive license). Copies of the software may be made if necessary for its use in a given case. Necessary copies include the installation of the software on the client disk as well as loading it thereafter into main memory on the client hardware. In addition, the client is permitted to make a backup copy. If the client changes the hardware installed, he is obligated to uninstall the software from the hardware swapped out. Installation of the software on a client network or the like enabling more client users to simultaneously access the software than the number of workstation licenses acquired is not permitted. The client is not authorized to transfer or sell the software to a third party. Other acts of utilization and exploitation by the client are not permitted. In particular, there shall be no assignment whatsoever of additional copyright–protected utilization and exploitation rights to the software (such as leasing, hiring out, distribution etc.) and/or to the source code beyond the non–exclusive license. 3.4 The client is obligated to take appropriate measures to prevent unauthorized third party access to the software purchased. We have the right to refuse sale of licenses of the software to any competiting company, organization or individual where reverse-engineering of the software is likely. The client is not entitled to change or in any other way edit the software. Reverse engineering the transferred software into other forms of code (de–compiling) is likewise not permitted. Furthermore, changing or removing the so–called copyright note and/or copy protection and the like is prohibited.
4.1 The client can make payment by bank transfer, check, paypal or credit card.
4.3 The client can offset only against undisputed claims or claims that have been established by declaratory judgment.
5. Passage of risk
5.1 The risk of accidental loss and accidental deterioration of the software sold shall pass to the client upon delivery of the software.
5.2 Default of acceptance on the part of the client shall be equivalent to delivery.
6.1 Legal warranty law on the sale of goods shall apply unless provided otherwise below.
6.2 It is pointed out that software errors cannot be ruled out under all conditions of use given the state of the technology. The quality of the software is standard for software of this kind and is as agreed upon. The software meets the requirements for ordinary use as set out in the agreement. It is, however, not error–free, which is normal. A functional impairment of the software resulting from hardware defects, environmental conditions, faulty operations etc. is not a defect. 6.3 Public statements regarding technical data, specifications and performance figures, especially in advertising, are not a specification of the quality of the software.6.4 The client shall test the software supplied within two (2) weeks after delivery, particularly with respect to completeness and functional capability. We must be notified in writing of any errors identified or readily identifiable through the testing within one (1) week thereafter. Otherwise the software will be considered to be in conformity with the agreement. An exact description of errors must be included. Apart from that, the client is obligated to report any defects within two (2) weeks after first encountering them. Otherwise the software will be considered to be in conformity with the agreement. It is the client's responsibility to guarantee an operational working environment for the software.6.5 In case of defects as to quality, we may first effect subsequent performance. We shall have the option of effecting the subsequent performance through repair (remedying the defect) or a substitute delivery.6.6 The client shall provide us support in the identification and remedying of defects.6.7 Our warranty does not cover defects caused by external factors or by non–compliance with conditions of utilization. The warranty becomes void if the client modifies the software himself or has it modified by a third–party without our permission.
7.1 We are liable to the following extent only, regardless of the legal ground:
– The liability for intention and breach of guarantee is unlimited.– In case of gross negligence and negligent breach of a substantial duty (cardinal duty), we are liable only to the extent of the typical damages foreseeable at the time of concluding the agreement.– We are not liable for slightly negligent breaches of negligible contractual duties.– We are not liable for the loss of data and/or programs, databases etc. through the installation of the software, especially if the loss is due to the client's omission to use anti–virus software or implement backup strategies to ensure the restoration of lost data. The plea of comparative negligence on the part of the client remains open to us.7.2 The limitations on liability apply in favor of our vicarious agents as well.7.3 The limitations on liability do not apply to claims arising out of product liability and to personal injury, injury to health or loss of life attributable to us. Statutory regulations shall apply in these cases.7.4 In any case, liability shall be restricted to a maximum of twice the purchase price.7.5 We are not responsible for the third party contents of any websites to which we provide access via links. We do not adopt the third–part contents. We will immediately disable links to any external sites if it comes to our notice that their contents are unlawful.7.6 War, civil war, export restrictions and trade restrictions due to a change in political circumstances as well as strikes, lockouts, operational disturbances, reduction of operations and other such events that make the performance of the agreement by us impossible or unreasonable shall be considered as force majeure and shall release us from the performance of the agreement for the duration of their occurrence. The parties to the agreement are obligated to inform each other about these events and to adjust their obligations to the changed circumstances in good faith.
8. Data protection
8.1 The client explicitly consents to the gathering, processing and use of personal data for the purpose of executing the order. The relevant statutory data protection regulations shall be complied with.
8.2 Customer support, order processing and licenses are processed manually to verify confirmation during New Zealand office times only - GMT+12 hours 9.30am (09:30) to 5pm (17:00). Due to timezone differences it may take up to 24 hours before activation and the client is to be advised and aware of this delay.
9. Final provisions
9.1 Should a term be or become invalid, the remaining terms shall remain valid. The ineffective term shall be replaced by an effective term coming closest to the ineffective term in the economic sense.
9.2 Amendments and supplements to these general terms and conditions of business are effective only if confirmed in writing by us. This applies to the amendment and revocation of this written form requirement as well. 9.3 New Zealand law shall apply exclusively to all legal relations between the client and us to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods even if the client has his company headquarters abroad.9.4 The place of jurisdiction is Auckland, New Zealand.9.5 A community forum user-account and community private messaging is supplied with the software license agreement. These constitute a courtesy granted to users of the licensed software, not a part of the software license. The end-user may only use his forum account and private messaging account supplied for personal use as a user of the software in it's community of users. In no way can these be used for advertising, sending unsolicited messages, data mining or harassing other forum users or message recipients. In situations of abuse or mis-use, these priviledges may be revoked at any time, at the sole discretion of Refractive Software LTD. Refractive Software LTD cannot be held responsible for any loss of messages or forum post content. Refractive Software LTD may choose to end supplying these courtesies at any time.