SendXMS® Conditions of License and Use
1. Conclusion of Contract, Trial Period
Böcherer Angewandte Informatik (BAI) enables its Customers to use the software under the following contractual conditions ("Conditions of Use"). Customer may use the Software exclusively subject to compliance with these Conditions of Use. Contract conclusion based on these Conditions of Use will become binding as soon as the Customer downloads and/or installs the Software.
The functionality of the Software and the systems and technical preconditions / technical requirements can be downloaded from the Internet under http://www.sendxms.com. The representations and descriptions of the Software offered by BAI in product offers and other product descriptions do not constitute a warranty of characteristics.
The Customer can download the Software initially for test purposes, store it and use it subject to these Conditions of Use. Also by this downloading Customer enters into a contract with BAI on the basis of these Conditions of Use. During a trial period limited to 20 days after download, Customer may use the provided Software with a limited functionality free of charge. This right of use expires automatically if Customer does not order within 20 days after downloading the full version of the Software under http://www.sendxms.com and does not pay the invoice within the term set out under paragraph 3 of these Conditions of Use. Only after payment of the invoice will Customer receive a Registration Key which permits Customer's permanent use of the complete functionality of the Software.
2. Rights of Use
BAI grants Customer after downloading initially a limited, simple and non-exclusive right to use the Software restricted in its functionality for a limited period of 20 days. After ordering and complete payment of the full version of the Software, BAI grants Customer the simple, non-exclusive right of use, unlimited in time and without geographic restrictions, in the Software in a machine-readable form (Object Code), which is limited pursuant to the following subparagraphs. No additional acquisition of rights in the Software is connected with these granted rights of use. In granting these rights of use, Customer will neither become the owner of the Software nor does this granting of rights of use constitute an exploitation right for the benefit of Licensee. All exploitation rights as well as all publications, multiplication and processing rights will remain exclusively with BAI.
Customer is entitled to use the Software on a random technically suitable virtual or physical computer for its own purposes. At no time may the Software be stored or installed on more than one virtual or physical computer. The computer must neither serve as central processing unit of an Intranet nor as an Internet-server. Customer has the right to make one back-up copy of the Software which Customer may not use, however, concurrently together with the installed Software version.
Without the prior written consent of BAI, Customer is not entitled:
a) to reproduce the Software - except for use for its own purposes - or to reproduce, disseminate, perform, send, reproduce it in public, or to make it available to third parties;
b) to rent or lease the Software, to use it jointly with third parties or to permit its use by third parties in any other way;
c) to process, arrange or translate the Software. Decompilation is only permitted within the scope of the Copyright Act (UrhG). For the remainder, Customer must not perform any re-engineering of the Object Code of the Software, reassemble it, or process or modify it in any way unless BAI has granted prior written permission for the purpose;
d) to change or remove any copyright annotations, other legal reservations, serial numbers or other characteristics serving identification contained in the Software.
Customer may only pass the Software on to third parties if Customer finally ceases to use the Software, does not retain any copies thereof and warrants this to BAI in writing prior to passing on the Software, and provided that the third party obligates itself in writing vis-à-vis BAI to comply with the same Conditions of Use.
After receiving its personal registration key, Customer is responsible for ensuring that no third party has access to this key. The regulations under paragraphs 2.3.a and 2.3.b apply analogously to the registration key. The Registration key may only be passed on subject to the conditions stated under paragraph 2.4.
BAI may revoke these rights of use if the Customer - even after receiving a written warning threatening revocation - does not comply with the Conditions of Use in accordance with paragraph 2.
The fee for use of the Software is predominantly derived from an individual offer by BAI to the Customer or, if such offer is not made, from the updated order form which can be downloaded under http://www.sendxms.com.
As soon as Customer has paid the fee to BAI, it will receive the complete rights of use of the Software and a personal registration key, which enables Customer to use the complete functional scope of the Software. The registration key will be sent per e-mail within seven (7) working days after receipt of payment by BAI.
The fee is due and payable net without deductions within 14 days after the date of invoice. In the event that Customer does not pay the fee within 14 days after the date of the invoice and the trial period has expired, the right of use expires automatically until the invoice is paid in full.
During the trial period in accordance with 1.2 during which the Customer may use the Software free of charge, the warranty obligation of BAI is limited to damage caused intentionally. For the remainder, Customer uses the software during the trial period at its own risk.
After the Customer has received the rights of use in the Software in accordance with para. 3.2, the following warranty regulations apply:
Under the current state-of-the-art, it is not possible to generate software in such a way that it works in all applications and combinations free of defect. Subject matter of the Contract is thus a Software which, in the sense of the Program Description, is generally usable. BAI does not warrant that the Software is suitable for the particular tasks envisaged by the Customer. BAI does not assume any warranty for transmission faults in the Internet.
In the event that a warranty claim is founded, BAI can fulfill such claim, at its option, by supplying new Software or by rectification of defects of the delivered Software. If after two attempts rectification of defects fails, Customer is entitled to reduce the fee or to rescind the Contract.
Warranty claims of the Customer are excluded if Customer does not check the Software immediately after the rights of use are granted (i.e. the rights of use after the registration key is provided) and does not lodge a complaint about obvious defects within one week, describing the defects in detail. Customer's warranty claims are moreover excluded if Customer modifies the Software or uses it contrary to the contractual specifications, unless Customer can prove that a Software defect exists independently thereof.
5. Liability; Release from Liability
BAI is liable in accordance with applicable legal provisions. In deviation thereto, BAI shall only be liable for material damage or pecuniary loss caused by intent or gross negligence, in the case of violation of a cardinal obligation (Kardinalpflicht), also in the case of simple negligence, limited, however to twice the amount of the fee payable in accordance with the underlying contract. Any liability for indirect and consequential damage and for lost profits is expressly excluded.
Customer shall inform BAI without delay if any third party asserts property right claims against Customer. Customer must not acknowledge any claims of third parties itself. BAI, at its option, will either defend or satisfy such claims or exchange the affected performance against an equivalent performance in accordance with the purchase order if this is acceptable to the Customer.
6. Non-Disclosure and Custody
The parties assume the obligation not to disclose any information or documents containing business or operating secrets which came to their knowledge or which they received from the other party during the performance of the Contract. This non-disclosure obligation shall prevail also after termination of the Contract. This non-disclosure obligation applies in particular to the Software supplied by BAI and to any copies made thereof by the Customer as well as to the registration key provided. The parties shall secure and store these objects in such a manner that any access by third parties to said objects is prevented.
7. Retention of Title
BAI retains title in the delivered objects until the invoice is paid in full.
Any legal relations arising under this Contract are governed by the law of the Federal Republic of Germany. Applicability of the UN Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) is expressly excluded . To the extent that Customer is an entrepreneur, a legal person under public law, or a person which has its residence or branch abroad, place of performance and venue for any legal dispute is Karlsruhe.