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General Terms and Conditions

A. Software license/sale

1. Contracting parties

The contracting parties are the customer, who is not a user as defined by Article 13 of the German Civil Code [BGB], and LuraTech Imaging GmbH, Ulmenstr. 22, 42855 Remscheid, GERMANY (hereafter: LuraTech).

2. Definition of the subject of the agreement

2.1 The subject of the agreement consists of the General Terms and Conditions of Business in addition to the quotation, invoice, delivery (download), operating manual and the information contained in the product data sheets, on the website and in the price lists. The above govern both the sale of software licenses and the maintenance of the software, which is a precondition for validity of the software license.

2.2 Differing arrangements must be stated in writing. The assumption of a warranty for certain properties (condition of the product) requires written confirmation by LuraTech before it is valid.

2.3 The customer’s general terms and conditions of business are not terms of the agreement, even if these are attached to quotation requests, purchase orders, acceptance declarations, etc. and are not contested.

3. Agreements and quotations

3.1 Subject to a separate arrangement, the agreement takes effect upon receipt of the order confirmation and no later than upon provision of the service by LuraTech or completed download by the customer.

3.2. All LuraTech quotations are non-binding unless expressly declared otherwise in the quotation. LuraTech reserves the right to minor technically induced variations from the quotation, even after acceptance of the quotation by the customer.

4. Services by LuraTech

4.1 The features of the software and the approved operating environment (operating system) ensue from the respective quotation, invoice, delivery (download), operating manual and the information contained in the product data sheets, on the website and in the price lists. The product description and user manual are in the manufacturer’s language or in English as a matter of course

4.2 The software is provided for download. LuraTech ensures that the software is subject to ongoing improvement and provides customer support for this.

5. Duties and obligations of the customer

5.1 LuraTech and its subcontractors are to be held unaccountable for all third-party claims that are based on unlawful use of the software or connected services provided either by the customer directly or with the customer’s approval. The customer is required to inform LuraTech immediately and in writing if third parties claim an infringement of their rights against the customer. The customer will not acknowledge any infringement of rights claimed by third parties and agrees to leave all litigation matters to LuraTech or to pursue such matters only in consultation with LuraTech.

5.2 Copyright notices, serial numbers and other features used for program identification may not be removed or changed under any circumstances. The same applies to the suppression of corresponding notices on the monitor display.

5.3 The acquisition of the software license by the customer is tied to the obligation to enter into a maintenance contract. The right to use the software license lapses if the maintenance contract is terminated. If the customer is in arrears with payments for the maintenance contract, LuraTech is entitled, after issuing a reminder with the appropriate notification, to declare termination of the contractual relationship (license agreement and maintenance contract) without notice. In this case, the right to use the software lapses upon receipt of the notice of termination. The customer remains obligated to pay the entire annual fee for the maintenance contract to LuraTech for every year that has started.

6 Usage rights

6.1 After complete payment of the license and maintenance fees for the software and associated documentation or online help, LuraTech grants the client the right to use the operating environments described in the agreement. These usage rights are not exclusive and must not be sublicensed. The license is valid as long as there is a corresponding maintenance contract. If the maintenance contract is ended, the software license lapses.

6.2 The customer is allowed to create one full copy of the software for backup purposes. The customer must label this as a backup copy and attach a corresponding copyright notice. The customer is not entitled to copy the software beyond that extent. Copying sections of the written material is permissible for internal purposes to the extent that this is necessary for the intended usage of the software. If additional manuals are needed, these are to be procured via LuraTech.

6.3 If the software is resold, the customer may transfer license rights to the software to the same extent in which they were transferred to the customer in fulfillment of the present agreement. In such a case, it is a precondition that the purchaser takes over or continues the obligations contained in the maintenance contract with LuraTech. Where applicable, the customer is obligated to transfer program copies or to destroy non-transferred copies, and to obligate the third party contractually that the software will only be used within the scope of item 7 of the present agreement. If the purchaser does not take over the maintenance agreement or conclude a separate maintenance agreement with LuraTech, the license will lapse. The customer must indicate this to the purchaser. The customer is obligated to report the license transfer together with the name and address of the purchaser to LuraTech.

6.4 Unless expressly permitted by the German Copyright Act or contractually, the customer may not directly or indirectly perform any reverse engineering, disassembly or decompilation of the software.

6.5 For every culpable violation of the contract that enables the use of the software or user manual by third parties, the production of an unauthorized copy or the use of the software on additional computers, the customer is to pay damages to LuraTech in the amount of the purchase price. The compensation for damages will be adjusted up or down if LuraTech is able to demonstrate greater damages or the customer is able to demonstrate lesser damages. LuraTech reserves the right to assert additional claims for damages.

6.6 Upon request, the customer must immediately provide LuraTech with all the related information for claims against a third party, in particular the name, address and the type and scope of the unauthorized program transfer.

7. Reservation of property and rights, offsetting, retention

7.1 LuraTech reserves the property and rights to be granted until payment of the due amount has been made in full. Before this time, rights are only temporary and can be revoked at the discretion of LuraTech. If LuraTech asserts reservation of property rights, the right of the customer to continue using the software lapses. All copies of the program produced by the customer must be deleted in this case.

7.2 The customer only has rights of set-off if a counter-claim has been established legally or remains undisputed. The customer is entitled to assert a right of retention only because of counter-claims based on the present contractual relationship.

8. Payment conditions

8.1 The fee and additional costs are net prices plus the statutory taxes and duties.

8.2 The invoiced amount is to be paid to the account specified on the invoice; it is due immediately and must clear no later than on the tenth day after receipt of the invoice. If the customer provides authorization for direct debit, LuraTech will not levy the invoiced amount from the agreed account before the seventh day after receipt of the invoice.

8.3 For every direct debit that is not honored or is returned, the customer must reimburse LuraTech for the costs incurred.

9. Modifications of the General Terms and Conditions of Business, service descriptions and prices

LuraTech is entitled to amend its General Terms and Conditions of Business, service descriptions and prices after an appropriate notice period insofar as these changes can reasonably be accepted by the customer with consideration of LuraTech’s interests. All such amendments will be communicated to the customer in writing. If amendments are made to the detriment of the customer, the customer is entitled to a special right to terminate the agreement on the date when time these changes take effect. In communicating amendments to the customer, LuraTech will give advice of this special right to terminate and of the fact that the amendment becomes effective if the customer does not exercise the special right to terminate within the timeframe defined.

10. Material defects

10.1 LuraTech warrants that the current version of the software fulfills the functions described in the quotation, delivery (download), manual, product data sheets, website and documentation on the condition that the software is used in the operating environment (operating system, etc.) described in the agreement and the customer uses the up-to-date version of the software. The software will be continually updated; the updates are available to the Client. If the customer has not updated the software used despite the availability of a relevant update, the software must be updated as a first step before a defect is reported.

10.2 If the current version of the software has defects, the customer can demand a remedy or resupply (supplementary performance) as LuraTech deems appropriate. There is no claim to a defect of quality for an insubstantial deviation of the service by LuraTech from the contractually agreed condition if this defect does not limit functional performance.

10.3 If LuraTech renders services in searching for a defect following a reported problem and no defect is found and the customer could have recognized this, the customer must bear the associated costs incurred. The same applies if the customer had not installed the current version of the software. These costs will be calculated based on LuraTech’s applicable pricing rates at the time the service is rendered.

10.4 Liability for defects is not assumed for services rendered by LuraTech that are changed or modified by the customer unless the customer demonstrates that any such modification is not the cause of the defect. Liability for defects is also not assumed if the customer does not immediately protest in writing to LuraTech after a defect becomes recognizable, or if the service is not used under the contractually agreed conditions in accordance with the documentation.

10.5 For a defect to be repaired properly, it is necessary for the customer to describe the nature and occurrence of the defect in detail so that it can be sufficiently determined by LuraTech. All documents necessary for remedying the defect must be made available to LuraTech.

10.6 Claims by the customer based on the expenses necessary for supplementary performance, particularly transportation, labor and material costs, are excluded to the extent that these expenses are increased because the provided services were subsequently relocated somewhere else than the contractually agreed place of performance.

10.7 It is at LuraTech’s discretion whether software defects are remedied by providing a new revised version of the software or a workaround. Until a new revised version is available, LuraTech will provide an interim solution for working around the defect, if this is possible for LuraTech with an appropriate expense.

10.8 Claims by the customer due to a defect become time-barred one year after the beginning of the statutory limitation period.

11. Defects of title

A defect of title exists if the rights necessary for the contractually intended usage have not been validly conceded after delivery of the software. For defects of title, LuraTech provides a warranty to the customer by creating a legally proper right of usage for the software or by taking back the software at the invoice price minus appropriate usage compensation, at its discretion. The latter is only permissible if a different remedy is not reasonably possible for LuraTech. Claims by the customer due to a defect of title are time-barred one year after the beginning of the statutory limitation period.

12. Limitations of liability

12.1 LuraTech is liable without limitation in case of intent or gross negligence, as well as if a guaranteed property is absent.

12.2 For minor negligence, LuraTech is fully liable in case of loss of life, limb or health. In other respects, LuraTech is liable for minor negligence only insofar as an obligation is violated that is necessary for the proper implementation of the contract, that endangers the achievement of the purpose of the contract if violated and whose observance the customer can normally rely on (material contractual obligation). If a material contractual obligation is violated, liability is limited to the foreseeable losses typical for the contract. This also applies to lost profit and unrealized savings. Liability for other indirect consequential damages is disclaimed.

12.3 LuraTech is liable for loss of data in case of minor negligence under the preconditions and within the scope of item 12.2 only if the customer has made a daily data backup.

12.4 Liability for all other damage is disclaimed, in particular for loss of data or hardware failure caused by incompatibility of the components present in the customer’s PC system with the new or modified hardware and software, and for system failures that can arise due to existing misconfigurations or older interfering drivers or other software that has not been completely removed. Liability under the German Product Liability Act is unaffected.

13. Exportation

The customer assumes sole responsibility for the observance of import and export regulations, for instance those of the United States of America, that are applicable to the delivery or services. In case of cross-border delivery or service, the customer shall bear any arising customs duties, fees and other levies. The customer is solely responsible for handling legal or official proceedings in connection with cross-border supplies or services.

14. Confidentiality

The contracting parties are obligated to one another without time limitation to maintain silence regarding business and operational secrets such as pricing terms, names of end customers and any information designated as confidential that becomes known to them in connection with implementation of the contract. Forwarding such information to third parties not involved in the implementation of the project is only permissible with prior written consent from the respective other contracting party. No third parties are affiliated companies of the contracting parties as defined in Article 15 and the following articles of the German Stock Corporations Act [AktG]. The contracting parties shall also impose these obligations on their employees and any third parties that may be engaged. LuraTech is entitled to forward confidential information to subcontracts on the condition that these are obligated to maintain equivalent confidentiality.

15. Other provisions

15.1 If provisions of the agreement are or become invalid, or if there proves to be a loophole in the agreement, the validity of the remaining provisions is unaffected. The invalid provision shall be replaced by, or the gap shall be closed with, an appropriate regulation that most closely reflects the purpose of the agreement to the extent possible.

15.2 LuraTech is entitled to have services performed by third parties as subcontractors. LuraTech is equally liable for the service provision by subcontractors as for its own work.

15.3 The customer may transfer the rights and obligations from this agreement to third parties only after prior written consent from LuraTech.

15.4 The court of jurisdiction for all disputes arising from or in connection with this agreement is Berlin. Any exclusive court of jurisdiction has priority.

15.5 The contractual relationship of the contracting parties is subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on the International Sale of Goods.

B. Creation/Development of Custom Software

1. Subject matter of the contract, cooperation

1.1 The subject matter of the contract is determined according to the agreements made between the contracting partners. The following provisions apply to a contract whose subject matter is the planning, creation, supplying, implementation and/or introduction of software and/or documentation.

1.2 The contracting parties will work together closely in the conduct of this project. Each side shall designate a project manager, who is authorized to make binding declarations to the other contractual partner, and accept declarations made by the other contractual partner.

2. Planning

2.1 In the planning phase, the Client engages LuraTech for the required preparations for creating and deploying the software in data processing systems. The objective of the planning phase is to create a requirements specification for the customer that forms the basis for program creation (Section 3).

2.2 In the planning phase, the Client shall provide all necessary information to LuraTech on actual conditions, on planned changes and improvements, if any, on business and process engineering objectives and responsibilities, on essential circumstances and interests and any other knowledge and specifications within its purview for the development of the requirements specification. LuraTech shall advice and support the Client continuously for an effective determination of actual and target conditions.

2.3 The final written version of the requirements specification shall be signed by both parties and forms the further contractual basis for the creation of the software, replacing all previous bids.

3. Program creation, changes, participation of the Client

3.1 Based on the requirements specification and taking into account the state of science and technology, LuraTech shall create functional software for the intended fields of use.

3.2 Requests for changes from the Client after the requirements specification has been finished are excluded, unless LuraTech expressly consents in writing.

3.3 Before and during the program creation phase, the Client shall provide LuraTech, without prompting or delay, all information that it needs to render the contractual service. The Client shall make all test data and resources that foster the creation of the envisioned software available to LuraTech. The Client is obligated not to change the deployment requirements while the functionality of the programs is being developed.

3.4 The Client’s participation is not compensated unless a different arrangement is made in a specific case.

4. Acceptance

4.1 The acceptance of the software is conducted by functional testing. LuraTech will notify the Client when the software becomes functional. The Client is obligated to conduct the functionality testing immediately following the notification of functionality. The functionality test is considered to have been successfully conducted if the programs meet the contractual requirements in all essential aspects.

4.2 After a successfully conducted functionality test, the Client must immediately declare acceptance in writing.

4.3 If the Client does not immediately declare acceptance after a successfully conducted functionality test, LuraTech can set an adequate period, generally two weeks, for issuing this declaration. The acceptance is considered to have been achieved if the Client does not specify the reasons for denying acceptance or does not specifically describe the defects in writing within these two weeks.

4.4 The Client is obligated to notify LuraTech immediately in writing if it becomes aware of deviations of the software from the contractually defined requirements during the functionality testing. Nonessential deviations of the programs from the contractually defined requirements that are discovered during the functionality tests do not entitle the Client to deny acceptance.

5. Warranty, time bar

5.1 LuraTech warrants that programs and, if so agreed, documentation are free of defects that cancel or reduce their value or suitability for the customary or contractually required purpose. There is no claim to a defect of quality for an insubstantial deviation of the service by LuraTech from the contractually agreed condition that does not limit functionality.

5.2 Claims of the Client based on defects of quality or title are time-barred one year after the start of the statutory limitation period.

5.3 The Client must immediately report defects following discovery, providing a detailed written description of the defect and its occurrence. On request, the Client shall provide LuraTech with all information it needs to assess the defects and remedy them.

5.4 The warranty is void if the Client modifies programs on its own or has third parties modify programs without consent from LuraTech. The warranty is not voided if the Client demonstrates that the defects still under consideration were not caused by the program modifications made by it or the third party.

5.5 The software will be continually updated; the updates are available to the Client. If the Client has not updated the software it uses, despite the availability of a relevant update, it must first update the software before reporting a defect. If the updated version of the software has defects, the Client can require that LuraTech remedy the defects or deliver a replacement, as LuraTech deems appropriate.

5.6 If LuraTech has rendered services in searching for a defect following the report of a defect and there is no defect and the Client could have recognized this, the Client must bear the costs incurred thereby. The same applies if the Client had not installed the current version of the software. LuraTech’s compensation rates that are applicable at the time the service is rendered shall be the basis for calculating costs.

5.7 Liability for defects of quality is voided for services rendered by LuraTech that are changed by the Client or in which it interferes, unless the customer demonstrates that the interference is not the cause of the defect. Liability for defects of quality is also voided if the Client does not immediately protest in writing to LuraTech after a defect becomes recognizable, or if the service is not used under the contractually agreed conditions in accordance with the agreements. It is also necessary for a proper rectification of a defect that the Client describes the defect and its occurrence in detail, so that the defect can be sufficiently determined by LuraTech. All documents necessary for remedying the defect must be made available to LuraTech.

5.8 Claims by the Client based on the expenses necessity for supplementary fulfillment, particularly transportation distances and the cost of labor and materials, are excluded to the extent that the expenses are increased because the object of service was subsequently sent to a place other than the contractually agreed place of performance.

5.9 Software defects are remedied, at the discretion of LuraTech, by providing a new revised version of the software or a workaround. LuraTech may remedy the defects a second time. Until a new revised version is available, LuraTech will provide an interim solution for working around the defect, if this is possible for LuraTech with an appropriate expense.

6. Limitations of liability

6.1 LuraTech is liable without limitation for intent or gross negligence, as well as if a guaranteed property is missing. For minor negligence, LuraTech is liable in case of loss of life, limb or health. In other respects, LuraTech is liable for minor negligence only insofar as an obligation is violated that must be fulfilled to enable proper implementation of the contract, that endangers the achievement of the contractual purposes if violated and that the Client can ordinarily trust to be observed (cardinal obligation). If a cardinal obligation is violated, liability is limited to the typical damage foreseeable for the contract. This also applies to lost profit and unrealized savings. Liability for other indirect consequential damage is disclaimed.

6.2 LuraTech is liable for loss of data in case of minor negligence under the preconditions and within the scope of Section 5, Paragraph 1 Sentence 2 only if the Client has conducted a daily backup.

6.3 Liability for all other damage is disclaimed, in particular, for loss of data or hardware failures caused by incompatibility of the components present in the Client’s data processing system with the new or revised hardware and software, and for system failures that can arise due to existing miss-configurations or older interfering drivers or other software not completely removed. Liability under the German Product Liability Act is unaffected.

7. Duties and obligations of the Client, maintenance contract

7.1 LuraTech and its agents must be held harmless from all claims of third parties that are based on an unlawful use of the software and services connected thereto by the Client or with its approval. The Client shall immediately inform LuraTech in writing if third parties assert an infringement of their rights against the Client. The Client shall not acknowledge the infringement of rights claimed by third parties and shall either leave any litigation up to LuraTech or pursue it only in consultation with LuraTech. Copyright notices, serial numbers and other features used for program identification may not be removed or changed under any circumstances. The same applies to a suppression of the display of corresponding features on the video screen.

7.2 The acquisition of the software license by the Client is tied to the obligation to enter into a maintenance contract. The right to use the software licenses lapses if the maintenance contract is terminated. If the Client is in arrears with payments for the maintenance contract, then LuraTech is entitled, after warning with an appropriate notification, to declare termination of the contractual relationship (license agreement and maintenance contract) without notice. In this case the right to use the software lapses upon receipt of the notification of termination. The Client remains obligated to remit the annually assessed fees for the maintenance contract to LuraTech for each new year.

8. Utilization rights

8.1 LuraTech grants the Client a non-transferrable, non-exclusive, non-sub licensable right to use the agreed programs under the agreed conditions. The license is valid as long as a corresponding maintenance contract exists. If the maintenance contract is ended, the license to the software lapses. Unless expressly permitted by the German Copyright Act or contractually, the customer may not perform any reverse engineering, disassembly or decompilation of the software or have these performed by third parties. For every culpable violation of the contract that enables the use of the software and the user manual by third parties, the production of an unauthorized copy or the use of the software on additional computers, the customer shall pay damages to LuraTech in the amount of the license fees plus maintenance fees. The compensation for damages shall be set higher or lower if LuraTech demonstrates greater damage or the customer demonstrates lesser damage. LuraTech reserves the right to assert further claims for damages. On request, the Client must immediately communicate all information for asserting the claims, including those against third parties, in particular, the nature and scope of the unauthorized use of the program, and if applicable, the names and addresses of third parties to whom the program was transferred without authorization.

8.2 LuraTech is entitled to develop programs for similar or identical tasks for others, using the knowledge it obtained in executing the contract.

9. Reservation of title/rights, offsetting, retention

9.1 LuraTech reserves title and the rights to be conceded until payment in full of the compensation owed to it. Before that, the rights are only temporary and are conceded by LuraTech, revocably at its discretion. If reservation of title is asserted by LuraTech, the right of the Client to continue using the software lapses. All copies of the program produced by the Client must be deleted in this case.

9.2 The Client is entitled to a right to offset only if its counter-claim is legally established or undisputed. The Client is entitled to assert a right of retention only for counter-claims based on the contractual relationship.

10 Payment conditions

10.1 Compensation and secondary costs are net prices plus statutorily assessed taxes and contributions. The invoiced amount is to be paid to the account specified in the invoice, is due immediately and must be credited to said account no later than the tenth day following receipt of the invoice.

10.2 If a direct debit authorization is issued, LuraTech will not withdraw the invoiced amount from the agreed account before the seventh day following receipt of the invoice. For every debit note that is not honored or is returned, the customer must reimburse LuraTech for the costs incurred.

11. Exportation

11. The Client is responsible in its own right for observing import and export regulations, such as those of the United States of America, that are applicable to the supplies or services. In case of cross-border supply or service, the Client shall bear duties, fees and other levies.

11.2 The Client is responsible in its own right for handling legal or official proceedings in connection with cross-border supplies or services.

12. Confidentiality

12.1 The contractual parties are obligated to one another without time limitation to maintain silence regarding business and operational secrets such as price conditions or names of end customers, as well as information characterized as confidential, that become known to them in connection with implementation of the contract. Transmission to third parties not occupied with the implementation of the project is only possible with prior written consent from the respective other contractual party..

12.2 No third parties are affiliated companies of the contracting partners within the meaning of Paragraph 15 and the following paragraphs of AktG [German Stock Corporations Act]. The contracting partners shall also impose these obligations on their employees and any third parties that may be engaged. LuraTech is entitled to transmit confidential information to third parties if they are obligated to corresponding confidentiality.

13 Termination, term of the maintenance contract

13.1 A maintenance contract is concluded along with the contract for the creation of the software. Unless other agreements are reached, the maintenance contract is concluded for 12 months and is extended by an additional year if it is not terminated in writing by two months before the end of the current term of the contract.

13.2 The right to termination without notice is unaffected.