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General Terms of Delivery and Payment of BINDER Inc.
The following terms apply to all our sales, deliveries and quotations, unless agreed otherwise in writing. The purchaser’s terms of business only apply if and insofar as we have expressly approved them in writing.
1. Quotation and Conclusion of contract
1.1 Our quotations are non-binding and to be considered solely as an invitation to place an order.
1.2 Customer’s orders are only considered as accepted after we have confirmed them in writing. Our written order confirmation is decisive for the scope of the delivery.
1.3 Supplementary agreements and/or modifications require our written confirmation.
1.4 We reserve all rights of ownership and copyright in estimates, drawings and other documents (collectively described as "documentation"); documentation may not be made accessible to third parties. Documentation belonging to a quotation must be returned to us immediately upon request, if the order should not be placed.
1.5 Should technical alterations be carried out on the devices after supplying quotation, we may deliver the technically altered version. In this respect, we are entitled to deviate from illustrations, drawings, descriptions, color, information pertaining to dimensions, weight and quality and any other specifications, provided they are acceptable to the purchaser considering both parties’ interests.
2.1 All prices are ex works our warehouse in Bohemia, New York (Incoterms 2010).
2.2 For services performed later than 4 months following the conclusion of the contract, we may charge customer with any wage and material price increases incurred after the supply of our quotation by requesting an appropriate surcharge.
3.1 All invoices are to be paid in accordance to negotiated payment terms (i.e., Payment in Advance, Stage Payment, Net 30, and Net 45 days after the date of invoice) without any deduction. Services provided and spare parts deliveries are due for payment immediately as cash purchase.
3.2 Bank transfer payments are only considered as having been made when the funds are cleared by our bank. Settlement of invoice by check and/or draft only occurs on account of payment and, in the case of drafts, requires our express prior consent. The purchaser bears all costs associated with payment by draft or check. We accept no liability for timeliness of protest.
3.3 The statutory default regulations of the applicable law apply and interest shall be paid on invoices remaining unpaid after the date payment is due per para 3.1 above at the rate of one and one half percent (1.5%) per month. This does not affect our right to claim further damages caused by default going beyond this.
3.4 The purchaser is only entitled to offsetting if his counterclaims are established and undisputed or explicitly acknowledged by us. The purchaser also has no right of retention on account of disputed counterclaims.
3.5 If well-founded doubts arise with regard to the purchaser's ability to pay or if an application is made to open insolvency proceedings with regard to his assets, all monies outstanding from our business relationship will become due immediately. In addition, we are entitled to request advance payment, payment by means of cash on delivery or letter of credit or good-faith deposit.
4. Delivery Dates
4.1 Our delivery dates are confirmed in writing, however it is subject to change. The delivery time starts when the order confirmation is sent, but not before we have received all documents to be obtained from the purchaser. Observance of the delivery time requires the fulfillment of all contractual obligations by the purchaser.
4.2 With respect to deliveries outside of United States of America, delivery time is met when the goods are passed on to the freight carrier.
4.3 Force majeure, operational faults, strikes or other hindrances, for which we are not responsible, at our premises or those of our suppliers, release us from the delivery obligation for the duration of the disturbance and its effects. Should we be in delay with delivery, delay shall not be extended through the occurrence of one of the aforementioned circumstances.
5. Passing of Risk and Dispatch
5.1 The risk of accidental destruction and/or damage of the goods pass over to the purchaser when the goods are handed over to the carrier at our U.S.-warehouse in Bohemia, New York. This also applies if partial deliveries are made or if we undertake other services, e.g. dispatch or transportation.
5.2 If dispatch is delayed as a result of circumstances for which the purchaser is responsible, the risk passes to the purchaser from the date of readiness for dispatch. In these cases we store the goods at the purchaser's expense and are then entitled to charge the purchaser at least 0.5 % of the invoice amount for the stored delivery for each month that has begun. At the purchaser's request and at his expense we will insure the goods against the usual risks.
5.3 Partial deliveries are permissible to a reasonable extent.
5.4 We select the packaging and method of dispatch at our discretion. Purchaser shall check the delivered goods immediately on receipt with respect to damages caused by transportation and shall inform the delivering freight carrier immediately on site about any visible transport damages. Additionally, purchaser shall inform us immediately in writing, at the latest within 5 work days, about any visible transport damages. If purchaser does not comply with this obligation, the delivered goods shall be deemed approved with respect to transport damages.
6. Guarantee / Complaint
6.1 We warrant that at the time of delivery all products will be free from defects in materials and workmanship.
6.2 The warranty period is one year starting with the shipping date. Should all service and repair works be carried out by us or service stations authorized by us within this period and the product is registered with us by the owner, we shall grant additional warranty for a period of additional 12 months. Neither included in the first 12-months-warranty nor in our additional 12-months-warranty are: - wearing and consumable parts; - transport damages; - damages following improper treatment, operation or use and improper use; damages due to purchaser’s fault; - damage due to chemical, electronical or weather-related influences; - damage caused by spare parts that are not original BINDER spare parts; - damage due to unauthorized changes/alterations to devices by the purchaser or third-party; - damage due to faulty installation or commissioning by the purchaser or third-party.
6.3 The purchaser must check the goods for defects immediately after receipt. Complaints about visible defects can only be taken into account if they are asserted in writing within 10 days after receipt of the goods, unless para. 5.4 above applies with respect to transportation damages. Hidden defects must be notified in writing immediately after discovery.
6.4 Insofar as a defect of the delivered good is actually discovered within the 12-months-warranty period, the purchaser shall send us written notice within seven (7) days of such discovery. In this case, our sole and exclusive liability shall be to decide, at our option, whether to either deliver a new product free of defects or to repair the defective product. In the case of repair we shall carry all costs necessary for the purpose of rectifying the defect, especially transport, travel or labor costs, provided they are not increased by the fact the product was brought to another location than the place of delivery and provided the defect occurs within 12 months after delivery date (see above para. 6.2). All parts replaced in the course of a repair pass into our property. They are to be sent back to us upon request at our expense. Should our remedy fail, the purchaser is entitled - at his discretion – to withdraw from the contract or to ask for a reasonable price reduction due to the defect.
6.5 Should the defect occur after expiry of the initial 12 month-period and our additional 12-months warranty be relevant (see above 6.2), purchaser must send the defective product at his cost primarily back to BINDER or secondarily to the company where purchaser has bought our product. Our sole and exclusive liability shall be to decide, at our option, whether to deliver a new product free of defects or to repair the defective product. Should the shipping entail unreasonably high costs, we may repair the defective product at purchaser’s site. Should our remedy fail, we shall consider a reasonable price reduction.
6.6 THE FOREGOING WARRANTY IN THIS SECTION 6 IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED ON OUR PART. WE DISCLAIM ANY WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE NEITHER ASSUME NOR AUTHORIZE ANY OTHER PERSON, FIRM OR CORPORATION TO ASSUME FOR US ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF PRODUCT. WE SHALL NOT BE HELD RESPONSIBLE FOR DAMAGE TO PERSON OR PROPERTY, CONSEQUENTIAL LOSS, LOSS OF PROFIT, LOSSES ON GOODS IN STORE, OR THE LIKE WHICH MIGHT ARISE OUT OF THE FAILURE OF THE EQUIPMENT DELIVERED, IRRESPECTIVE OF THE CAUSE (INCLUDING FAULTY MANUFACTURE).
7. Purchaser Withdrawal
If the purchaser withdraws from the contract without reason or if he does not fulfill his part of the contract, we can request and purchaser agrees to pay 25% of the order amount as damage compensation. The right of both parties to prove higher or lesser damages remains reserved.
8. Reservation of Title
8.1 We reserve the right of ownership of the delivered goods, until the purchaser has settled all monies outstanding from our business relationship. The purchaser may only sell the reserved goods in regular business dealings and may neither pawn them nor transfer them as security; he must notify us immediately of any access by third parties. The purchaser is required to protect our rights of reservation when reselling the goods on credit, and in particular to pass on the reservation of title to his customers.
8.2 The reservation of title shall be effective up until complete exemption from contingent liabilities (e.g. in the case of extended payment by check or draft), which we have entered into in the purchaser's interest.
9. Place of Performance
The place of performance for deliveries from our US warehouse is Bohemia, New York. The place of performance for payment is Citibank N.A. Ronkonkoma, New York.
10. Supply of Software Programs
If our deliveries also include software programs which we have developed (e.g. APT-COM™), then the following applies for the resale of product by the purchaser which has such programs installed:
- the purchaser is authorized to resell the product with the software installed; but neither the purchaser himself nor the respective customer of the purchaser will obtain the right of utilization (license) in the software program developed by us, as a result of such (re)sale;
- the purchaser must point out to the customer that the latter will only obtain the utilization permit after entering into a further contract with us (so-called software license contract); to do this, the customer must complete and return to us the enclosed registration card; the purchaser will expressly explain the registration card system to his respective customer.
- the purchaser consigns the software package (consisting of software CD-ROM, additional hardware components, Operating Instructions, our General Terms of Business for Software License Contracts and registration card) to the customer as received from us.
- the purchaser must notify us in writing of the names of the customers to whom he has sold product which has our software installed. Furthermore, we shall grant to purchaser a non-exclusive right of use. The software is intended exclusively for use with the delivered product. Use of the software on more than one system is prohibited. The purchaser may not duplicate, revise or translate the software. The granting of sublicenses is not permitted.
11. Governing Law and Venue
All sales by BINDER Inc., and disputes arising therefrom, and these General Terms of Delivery and Payment shall be governed by and construed in accordance with the laws of the State of New York of the United States of America. All claims in connection therewith shall be brought by purchaser before the courts of the State of New York, county of New York or county of Suffolk. BINDER Inc. may commence an action against purchaser before such courts or the courts in the county in which purchaser has its principal place of business, or the county in which the equipment is located.
General Business and Licensing Terms and Conditions for Providing Software (‘General Software Licensing T&Cs’) of BINDER GmbH
The terms and conditions that follow apply to all software programs that we provide to the customer, regardless of whether this takes place on a free-of-charge basis or subject to a charge, and regardless of the way in which the customer obtains the software (by downloading it or obtaining it on a data carrier), provided that the customer is an entrepreneur as defined by Section 14 of the German Civil Code. Any general terms and conditions that the customer may have in place for providing and licensing software shall not be recognized as a rule.
1. Formation and Subject Matter of the Agreement
1.1 BINDER shall grant the customer the right to use one (or more) of the following software programs:
- APT-COM 3 DataControlSystem software (in one of the various editions: Basic, Standard, or GLP) (subject to a charge);
- Free demo version of APT-COM 3 (without the option of storing data);
- BCW Time Program Editor; BCW Week Program Editor (both free of charge);
- MB2 Time Program Editor; MB2 Week Program Editor (both free of charge);
- Any other software programs that BINDER provides to the customer free of charge as a download from the BINDER homepage or in any other way (e.g., via email).
Furthermore, BINDER shall provide the customer with the following items associated with the software program in question: the operating manual (provided one is available for the program), the additional hardware components (if available), and any other associated material (if available – hereinafter referred to collectively as the “software”) that the customer has acquired directly from us or from an authorized dealer.
1.2 Service partners of BINDER are also considered to be customers in the context of these general software licensing T&Cs. If a BINDER service partner receives software from BINDER via email or wishes to do so, it must first grant its express written consent to the application of these general software licensing T&Cs. This consent may also be granted via email.
1.3 The customer shall receive the right to use the software in question on acceptance of these terms and conditions of business; at the same time, a licensing agreement shall be formed between BINDER and the customer. The following shall apply to software that is subject to a charge (APT-COM 3): when the data carrier for the APT-COM 3 software is provided, the customer shall receive a registration card which it must complete and return to us. The software licensing agreement between us and the customer shall not be formed until we have received the registration card. Additionally, the customer may not use the software program that is subject to a charge until it has correctly completed and returned the registration card.
The free-of-charge software must be downloaded directly from our homepage. In this case, the licensing agreement between us and the customer shall be formed when these terms and conditions of business are accepted by clicking the applicable button when downloading the software program in question.
1.4 If the customer is unable to consent to the obligations specified in these terms and conditions of business or does not wish to do so, it shall not be entitled to install or use the software. In such cases, the software may be returned to us or to the dealer, depending on where the software was acquired from, and the purchase price reimbursed. However, the purchase price for programs subject to a charge shall only be reimbursed if the seal on the case of the data carrier is intact.
2. Scope and Extent of License
2.1 In the case of software programs that are subject to a charge, the license that is granted relates to the use of the software at one workstation and on one PC (i.e., a single-user license). The license that is subject to a charge is not a network license. Free software may be used by multiple users on different PCs.
2.2 The customer may use both the free-of-charge software programs and the software programs that are subject to a charge with no time limitations; the license shall be granted on a nonexclusive basis in both cases (free of charge and subject to a charge)
3. Installation/System Requirements
3.1 The software program and the additional hardware components supplied with it (if applicable) may be installed by either the customer itself or a service station we have authorized. The latter case requires a separate order.
3.2 Before the installation commences, a backup copy of the PC must be made. If the software program and additional hardware (plug-in card and converter) (if provided) have not been installed in accordance with the operating manual supplied or by an authorized service station, we shall accept no liability in the event of software program handling errors or data loss.
3.3 The customer’s system must meet the requirements outlined in the operating manual for using the software
When this software licensing agreement is formed, we shall make a Service Hotline available to the customer. The customer may use the Hotline at any time. We shall make every effort to provide the customer with the best possible advice and support immediately in the event of any problems with the software that is supplied.
The customer may download updates for the acquired software program from our homepage within the scope of this licensing agreement. If required by the customer, we shall supply and install the updates in question in return for a fee.
6. Reproduction Rights
6.1 The customer may reproduce the software supplied by us if reproduction is necessary in order to use the program as intended. Examples of necessary reproduction include installing the software program on the mass storage facility of the customer’s PC from the original data carrier, and loading the software program to the working memory. The same applies to software programs that are downloaded directly from our homepage.
6.2 Additionally, reproduction is permitted for backup purposes. However, only one backup copy may be made and stored. This backup copy must be marked as a backup copy of the software program that has been provided. The above notwithstanding, standard regular (automatic) backups of the hard drive on which the software program is stored and used are permitted.
6.3 Any other types of reproduction, including sending the program code to a printer, are not permitted.
6.4 If the customer changes the hardware, the software program must be deleted from the mass storage facility of the hardware that has been used up to this point. Simultaneous saving, storing or use on more than one item of hardware is permitted.
7. Decompiling and Program Changes
7.1 Retranslating the program code that has been provided into other code formats (decompiling), as well as any other types of reverse engineering of the various manufacturing stages of the software that has been provided, are prohibited.
7.2 Removing copy protection or similar protection routines is not permitted as a general rule. The customer may only remove copy protection or the protection routine if the protection mechanism impedes unobstructed use of the program and we are unable to provide a remedy within a reasonable period of time despite a request having been submitted with this in mind. The burden of proof shall be on the customer in cases where the protection mechanism is impeding or preventing unobstructed use.
7.3 The customer must not remove or change any serial numbers or any other features that serve to identify the program.
7.4 Any warranty shall be rendered void if direct interventions are made in the files of the software that has been acquired.
8. Reselling and Subleasing
8.1 The customer may sell or give away the acquired software program, including the operating manual and any accompanying materials, to a third party on a permanent basis if the third party in question declares its consent that these agreement terms and conditions shall continue to apply to it. In the event that the software program is passed on, the customer must hand over all copies of the program, including any existing backup copies, to the new user or must destroy any copies that are not handed over. Passing on the software program shall mean that the customer no longer has the right to use it. Furthermore, the customer shall undertake to comply with the responsibility to inform pursuant to Clause 8 below.
8.2 The customer may not sublease the acquired software, including the operating manual and any other accompanying materials, to third parties for profit-making purposes. The customer may loan the software (i.e., provide it at no charge) if the third party declares its consent that these agreement terms and conditions shall continue to apply to it and if the customer hands over all copies of the program, including any existing backup copies, to the third party or destroys any copies that are not handed over. During the period over which the software is being provided to the third party, the customer shall not have the right to use the program itself.
8.3 The customer may not provide the software to third parties on this basis if there is a reasonable suspicion that the third party in question is in violation of the agreement terms and conditions; in particular, if there is a suspicion that the third party is making prohibited reproductions
9. Responsibility to Inform
In the event that the customer resells the software, it shall notify us of the name and the full address of the buyer in writing, provided that the buyer is an entrepreneur as defined by Section 14 of the German Civil Code.
10.1 The following applies to software programs that are subject to a charge: Any defects in the software that is supplied shall be resolved by us or our service stations within the warranty period of 24 months from the software’s purchase date (the date of the dealer’s invoice or the BINDER invoice shall be decisive in this case). We shall only provide warranty cover in cases where the customer has registered the program in question with us (see Clause 1.2 above). Handling errors caused by the software program or the additional hardware components being installed incorrectly and not in accordance with the operating manual shall be excluded from the warranty. Additionally, we shall provide no warranty cover in cases where the defect that is the subject of the complaint relates to an accident, to misuse or to incorrect use of the program. As well as this, we shall provide no warranty cover for defects that arise as a result of a failure to adhere to the specified hardware requirements or in the event that incompatible system drivers of other hardware components are used. There shall be no entitlement to defects being resolved at the site. We may choose to resolve the defect at your site or to have the customer return the defective goods to us. In the latter case, we shall bear the costs for the return, provided that the defect arises within the warranty period.
10.2 In the case of defects that are covered by the warranty conditions, the defect shall be resolved in the form of either repair work at no charge or a replacement delivery, at our discretion.
10.3 If it is not possible to resolve the defect within a reasonable period of time or if the repair work or replacement delivery is considered to have failed for other reasons, the customer may demand a reduction in the charge or may withdraw from the agreement, at its discretion. Repair work or a replacement delivery shall only be considered to have failed if we have been granted sufficient opportunity to perform the repair work or the replacement delivery and these actions have failed at least twice, or if the repair work or a replacement delivery is impossible, or if there is reasonable doubt concerning the chances of success, or if an unacceptable situation arises for any other reason.
10.4 We cannot provide warranty cover for free-of-charge software programs; however, in the event of a defect arising, we shall support the customer to the best of our ability in identifying and resolving the defect.
11. Obligations to Inspect and to Give Notification of Defects
The following obligations apply exclusively to software that is subject to a charge:
11.1 The customer must inspect the supplied software that is subject to a charge, including the operating manual and any other materials, within 5 working days of the software program being installed, particularly with regard to the completeness of the documents that are included and the functionality of the programming options described in the operating manual. Any defects that are identified or able to be identified during this process must be reported to us in writing within a further 5 working days. This notification of defects must contain a description in which every effort has been made to provide details of the defects.
11.2 Any claims for defects that cannot be identified during the correct inspection process described above must be asserted against us in writing within 5 working days of the defects being discovered and in compliance with the notification requirements.
11.3 In the event that the obligations to inspect and to give notification of defects are disregarded or violated, the software that is supplied shall be deemed approved in consideration of the applicable defect. The software program must be installed no more than 24 months after the software has been purchased. We shall provide no further warranty cover beyond this period.
12.1 We shall accept liability pursuant to the relevant legal provisions, provided that any damage compensation claims asserted by the customer are based on willful intent or gross negligence. In this respect, the actions of our representatives or vicarious agents must be attributed to us. Provided that no agreement violations as a result of willful intent are attributed to us, our liability for damage compensation shall be limited to damage of a foreseeable, typical nature.
12.2 Furthermore, we shall accept liability pursuant to the relevant legal provisions if we violate an obligation that is considered material in respect of fulfilling the agreement; in such cases, liability for damage compensation shall also be limited to damage of a foreseeable, typical nature.
12.3 Liability arising from culpable injury to life, limb, or health shall remain unaffected; the same applies to mandatory liability pursuant to the German Product Liability Act or manufacturer’s liability regulations.
12.4 Any liability beyond this shall be excluded.
13. Legal Venue and Applicable Law
13.1 If the customer is a merchant as defined by the German Commercial Code, the location of our business headquarters (Tuttlingen, Germany) shall be the legal venue for any disputes arising from this agreement.
13.2 German substantive law shall apply exclusively to this agreement, to the exclusion of the United Nations Vienna Convention on Contracts for the International Sale of Goods (CISG) from 1980.
BINDER APT-COM 4 Software License Agreement
1. Scope of Application
1.1 This Software License Agreement shall govern the rights granted to Licensee to use the APT-COM 4 Software (hereinafter referred to as the “Software”) produced by BINDER GmbH, 78532 Tuttlingen, Germany (hereinafter referred to as “BINDER”).
2. Subject matter
2.1. The subject matter of this Software License Agreement is the BINDER Software indicated in Art. 1.1. 2.2. The Parties agree on the assumption that the Software is protected by copyright law.
2.3. BINDER shall provide the Licensee with a copy of the Software on a data medium or electronically (e.g., via download) and shall make a version of the relevant user documentation available to Licensee (e.g., on the BINDER website).
2.4. The quality and functionality of the Software are conclusively set forth in the Specifications and, if applicable, in other descriptive documents. Any information provided in these documents shall be considered a performance specification and not a “guaranty” (Garantie). Obligations under a guaranty will only be accepted, if a description had been expressly referred to as a guaranty.
2.5. BINDER will not perform any installation and configuration services.
2.6. BINDER is not obligated to provide updates, upgrades, or technical support for the Software.
3. Grant of Rights to Use
3.1 Third party components, including open source software that BINDER provides to Licensee, either alone or as a component of the Software, are – unless otherwise agreed – primarily subject to the license agreement(s) of the corresponding producer(s), or to any open source license terms and conditions that may apply, respectively; alternatively, and in a supplementary manner, the provisions of this Art. 3 shall apply. Upon request, BINDER shall provide Licensee with these license agreements; in addition, they shall be supplied in the text file “ThirdPartyNotices.txt” in the installation folder.
3.2. Unless expressly agreed between the Parties, Licensee will be granted a non-exclusive, indefinite right, restricted to the geographical territory of Germany, in and to the Software for using it at one (1) workplace on one (1) local computer. The permissible use includes the installation of the Software, the loading into the memory, and the use by the Licensee for the intended purposes. Licensee shall not rent, loan, or grant any other kind of sublicense in and to the acquired Software, shall not be communicated to the public (neither wired nor wireless), or make it accessible to third parties, neither for or without a charge; this shall not affect the provision set forth in Art. 3.6 of this Software License Agreement. If Licensor provides Software to Licensee, the rights to use exclusively refer to the use of the Software in machine code. Licensee may not claim the surrender or disclosure of the source code.
3.3. Licensee is not granted any rights that are not expressly conferred upon Licensee. In particular, Licensee shall not rent, lease, or sublicense the Software or allow the Software to be used for or by a third party by way of time-sharing, outsourcing arrangements, or data center services (in particular, client-server environments such as Citrix) or any other paid or unpaid use of the Software for or by third parties (including, affiliated companies of Licensee), unless BINDER has granted its prior written consent.
3.4. Licensee shall make one (1) backup copy of the Software, provided, however, that it is required for safeguarding its future use. Licensee agrees to attach the notice “backup copy” to the abovementioned backup copy in a clearly visible manner and, in addition, a copyright notice that refers to BINDER.
3.5. Pursuant to section 69e of the German Copyright Act (§ 69e UrhG), Licensee has the right to decompile and reproduce the Software, if this is necessary to maintain the interoperability of the Software with other programs. However, this is subject to the condition precedent that BINDER fails to provide Licensee with the necessary information within a reasonable period upon Licensee’s request.
3.6. Licensee may provide a copy of the Software acquired to a third party for permanent use, provided, however, this Software License Agreement and the documentation are handed over at the same time. In that case, Licensee agrees to fully discontinue its use of the program, to remove all installed copies from its computer, and to delete or return to BINDER all other copies that are stored on other data media, unless Licensee is subject to statutory provisions that require a longer retention period. Upon the request of BINDER, Licensee shall confirm in writing that it has carried out the measures set forth above and, if applicable, it shall explain the grounds for a longer retention period. Furthermore, Licensee agrees to expressly bind the third party that receives the Software from it to compliance with the scope of rights granted pursuant to this Art. 3.
3.7. In the event of a use of the Software by Licensee in breach of this License Agreement, BINDER has the right to charge Licensee a lump-sum compensation in the amount of the license fees that would be incurred based on the current rates that BINDER usually charges for the excessive use. Furthermore, Licensee shall, if applicable, bear the reasonable costs for an examination in accordance with Art. 6.2 of this Software License Agreement. BINDER expressly reserves the right to assert further claims.
3.8. Characteristics that serve the purpose of program identification (e.g., copyright notices, serial numbers, etc.) shall neither be removed from the Software nor modified.
4. Statutory rights
4.1 BINDER warrants that the Software has the agreed quality and that Licensee may use the Software without infringing on third-party rights. BINDER does not assume any warranty obligations for the work results that Licensee obtains with the BINDER Software, unless this is an express part of the Specifications. Licensee is responsible for reviewing the work results obtained for their accuracy and usability for the intended activities and purposes on its own prior to their use. Licensee is aware that the Software has not been designed, tested, or certified for use in connection with high-risk activities, among others, not for its use in medical life support systems, nuclear power plants, or other areas that require a fail-safe performance.
4.2. Licensee shall inspect the Software promptly upon receipt for apparent defects and notify BINDER of defects, if any, without undue delay. Otherwise, the statutory rights (Gewährleistung) based on the defects mentioned above are expressly excluded. The same applies accordingly, if a defect of this type should become apparent at a later date. Section 377 of the German Commercial Code (HGB) shall apply.
4.3. Licensee may only assert claims based on defects that are reproducible or can be described by Licensee in a comprehensible manner. Functional impairments of the Software that are caused by Licensee's hardware or software environment, corrupted data, improper use, or any other circumstances from Licensee's sphere of responsibility shall not be deemed to be defects or errors. Furthermore, BINDER shall be released from its warranty obligations with regard to defects as to quality or defects in title if Licensee has modified the Software without prior authorization, either itself or through third parties, or if the Software has been used in violation of the Agreement (e.g., in another system environment), or in violation of the user documentation, unless Licensee can show that the defect is not related to these circumstances and the error analysis and/or rectification by BINDER is not impaired due to these circumstances.
4.4. If a defect as to quality should exist, BINDER initially has the right to subsequent performance, i.e., to subsequently improve the Software in order to rectify the defect or to make a subsequent delivery. The rectification of the defect may also mean that BINDER shows Licensee reasonable options how to avoid the effects of the defect or workarounds. BINDER shall also be deemed to have complied with its duty to subsequently improve the goods and/or services, if updates that include an automatic installation routine are provided to Licensee for download from the BINDER website and if BINDER offers Licensee telephone support in the event that installation problems should arise in connection with its warranty obligations (Nacherfüllung/subsequent performance). In the event that the subsequent performance finally fails (after a minimum of two (2) attempts at subsequent performance for each defect), Licensee may claim a reduction of the remuneration or terminate this Agreement in its own discretion. Depending on the complexity of the Software and its technical interoperability with the IT infrastructure of Licensee, more than two (2) attempts at subsequent performance may also be reasonable and Licensee may be expected to accept them. Claims to damages and reimbursement of wasted expenditures due to defects are subject to Art. 5 of this Software License Agreement.
4.5. In the event that BINDER performs services in connection with the trouble shooting or rectification of defects without being obligated to do so, it may claim a separate remuneration from Licensee on a time and materials basis based on the then-valid BINDER daily rates. In particular, this shall apply if a defect reported by Licensee cannot be demonstrated or if it is not attributable to BINDER. BINDER is not entitled to remuneration if Licensee shows that it had not realized that no defect existed and that there had been no fault on its part.
4.6. In the event of a subsequent delivery, Licensee shall adopt the new software version. In the event of a defect in title, BINDER shall provide Licensee – at the option of BINDER – with a noninfringing way of using the Software or modify the Software in such a manner that third-party rights are no longer infringed upon.
4.7. With the exception of damages, statutory claims based on defects as to quality will come under the statute of limitations within one (1) year. If the Software was sold on a data medium, the statute of limitations period begins to run upon the delivery of the Software covered by this Agreement. If the Software is sold via a download from the internet, the statute of limitations period begins to run upon the communication and activation of the login credentials for the BINDER download area. In the event of claims to damages and claims to the reimbursement for wasted expenditures, the specific provision in Art. 5 of this Software License Agreement shall apply.
4.8. The provision of updates, upgrades, and other new Software releases does not affect the warranty obligations with regard to the originally released Software and, in particular, does not result in an extension of the initial warranty period or in the commencement of a new warranty period for the supplied updates, upgrades, or any other revised Software releases.
5.1 BINDER shall be fully liable for damages in the event of intentional wrongdoing or gross negligence, for death, bodily injury, or health damage, subject to the provisions of the Product Liability Act, and to the extent that it had granted a guaranty.
5.2. In case of negligence, BINDER shall only be liable for a violation of a contractual duty that is of such material importance that the attainment of the purpose of the Agreement would be jeopardized so that Licensee may rightfully rely on compliance with the same (so-called cardinal duty). In these cases, BINDER shall be liable for the foreseeable and typical damage. In these cases, the liability of BINDER for all aggregate damage incidents is limited to the amount of twice the contract volume of the Software acquired.
5.3. In the event of a data loss, BINDER will be liable within the limits set forth above, but only for such damage and/or loss culpably caused by it that also would have occurred if a due, i.e., stateof-the-art, backup system, adequate in view of the risk involved, had existed at Licensee’s business operations.
5.4. Beyond this, BINDER does not assume any other liability.
5.5. The foregoing liability limitations also inure to the benefit of the corporate bodies, legal representatives, employees and vicarious agents of BINDER.
6. Software protection / audit rights
6.1 Licensee agrees to protect the Software from unauthorized third-party access. It shall take all necessary precautions to this end. In particular, it agrees to store all Software copies at a place that is protected against access by unauthorized third parties.
6.2. Licensee agrees to allow BINDER upon the request of BINDER to audit the contractual use of the Software, in particular, regarding its compliance with the contractual scope of use. As part of this audit, Licensee agrees to provide BINDER with information, to allow the inspection of any relevant documents and records, and to grant an opportunity to audit the implemented hardware and software environment. BINDER shall conduct the audit upon prior announcement at Licensee’s facilities during its regular business hours, taking the concerns of data protection and the confidential treatment of business secrets of Licensee appropriately into account. Furthermore, BINDER has the right to have the audit conducted by a third party acceptable to Licensee and that is bound to the secrecy duty in the prerequisite manner.
7. Final provisions
7.1 Modifications of and amendments to this Agreement must be in writing to be effective. The same applies to a waiver or modification of the mandatory written form. Written documents that are transmitted electronically do not meet the mandatory written form requirement.
7.2. This Software License Agreement is governed by German law, and the UN Convention on the Sale of Goods is excluded.
7.3. The place of performance is the place of business of BINDER. Exclusive place of jurisdiction for all disputes in connection with this License Agreement is also the BINDER place of business, if Licensee is a business person or a public law legal entity or does not have a general place of jurisdiction in Germany.
General Terms and Conditions of Service of BINDER GmbH
The following Terms and Conditions shall apply to all services offered and carried out by BINDER unless otherwise agreed in writing and provided that the customer is an entrepreneur as defined by the German Civil Code [BGB] and the customer has its registered office in Germany. The customer’s general terms and conditions of business shall not apply as a matter of principle unless and insofar as we expressly agree to this in writing.
1. Conclusion of a Contract
After the customer has made an inquiry by telephone or in writing, an order is concluded by us sending our corresponding written confirmation by email.
2. Scope of Supply
2.1. Our work is usually carried out from Monday to Friday, 8 am – 5 pm. Work is carried out in accordance with the content of our written confirmation.
2.2 Work is carried out in accordance with BINDER specifications and the state-of-the-art recognized at the time of conclusion of the contract. A unit will be considered to have been repaired or refurbished when it has been restored to a condition suitable for its intended use.
2.3 Our work does not extend to power and water supply lines or to other work outside the units.
2.4 In the event that a safety risk not caused by BINDER is identified, our services shall be interrupted until this risk has been eliminated.
2.5 In individual cases, we are entitled to refuse to carry out a service if, in our sole discretion, the unit concerned is no longer repairable or worthy of repair, or if it is no longer possible to procure the necessary spare parts.
3. Obligations of the Customer
3.1 The customer must ensure that our service technicians have unimpeded access to the BINDER unit. The unit must be empty and prepared such that the relevant service can be carried out.
3.2 The unit being serviced must be cleaned and decontaminated by the customer before the service work begins. If this is not the case and BINDER has to clean or decontaminate the unit, any costs incurred as a result of this shall be borne by the customer.
3.3 The customer shall provide us with the best possible support as we carry out the service. The customer undertakes to cooperate properly while our services are being carried out. If the customer has special access requirements or procedures which delay the performance of the actual service, BINDER will invoice these separately at a later date.
3.4 After completion of the service work, the customer must sign a corresponding performance record.
4. Remuneration and Payment
4.1 BINDER shall invoice the service as described in the quotation either as a lump sum or according to the actual expenses incurred. The invoice shall be issued immediately after the service has been carried out and shall include the applicable value added tax.
4.2 Invoices for the provision of services issued by BINDER shall be settled in accordance with the agreed terms of payment. Set-offs, reductions and withholdings are excluded except for in the case that the customer’s alleged counterclaims or rights have been legally established or recognized by us. In the event of default of payment by the customer, the statutory provisions shall apply.
5. Warranty / Disclaimer
5.1 We provide a warranty of 12 months on the services we carry out as well as on original BINDER spare parts, commencing on the date of acceptance of our service by the customer.
5.2 In the case that the performance was defective, the customer shall notify BINDER about this immediately in writing. BINDER shall then have the right to rectification, for which sufficient time shall be granted. If further rectification also fails or if rectification is refused by us, the customer may demand a reduction of the price paid or the costs incurred.
5.3 Further rights and claims of the customer, in particular for damages, including loss of profit, are excluded, except for in the case that we or our vicarious agents are guilty of intent or gross negligence.
6. Transfer of Rights and Obligations to Subcontractors
BINDER has the right to transfer rights and obligations to third parties, in particular to have services performed by third parties, provided that these third parties guarantee fulfillment of the contract.
7. Force Majeure
Events that constitute force majeure, such as war, unforeseeable natural events, pandemics, etc., entitle us to postpone carrying out our services by a reasonable period of time or, in the case that we are unable to carry out the services in the foreseeable future, to withdraw from the contract. Claims for damages made by the customer in the event of force majeure are excluded to the extent permitted by law (see Clause 5.3 above).
8. Applicable Law and Place of Jurisdiction
8.1 In the case that the customer is a merchant, a legal person under public law or a special fund under public law, legal action in the event of any disputes arising shall be brought before the court of jurisdiction for our registered office (D-78532 Tuttlingen). Furthermore, we also shall be entitled to take legal action against the customer at the customer’s place of business.
8.2 German substantive law always shall apply, to the exclusion of the United Nations Vienna Convention on Contracts for the International Sale of Goods [CISG] from 1980.