General Terms and Conditions

INOSIM Software GmbH

Valid from October 8th, 2020

Preamble

INOSIM has developed the software mentioned herein and is the owner of the software. The license holder wishes to purchase license rights of the software. INOSIM is ready to grant license rights to the license holder against the payment of license fees due to the license conditions listed below.

1. Terminology

If in the context of this agreement nothing else is specified, the following terms have the meanings as enlisted below:

1.1 ‘Licensed Software’ or ‘Software’ means the software program modules as described in the offers.

1.2 ‘Reference environment’ means a system containing of hardware and software and which is applied for communication, emulation and reproduction of errors of the licensed software.

1.3 ‘Service Package’ means a new release of the licensed software containing bug fixes and minor changes. It is displayed by INOSIM due to sole discretion as change of the place(s) in the product version number [x.x. (x)].

1.4 ‘Minor Release’ means a new release of the licensed software containing extensions and functional improvements. It is displayed by INOSIM due to sole discretion as change of the decade in the product version number [x. (x). x ].

1.5 ‘Major Release’ means a new release of the licensed software with essential changes. It is displayed by INOSIM due to sole discretion as change of place (s) left of the decimal point in the product number [ (x).x.x ].

1.6 ‘Designated Hardware’ is the computer hardware and the operating system as specified by INOSIM, on which the software is licensed for use.

2. License Grant

2.1 INOSIM hereby grants the license holder, subject to payment of the license fees and subject to this license agreement, the non-exclusive, non-transferrable and temporally unlimited right (Country License) to apply the licensed software in the object code and the software documentation for the license holder´s internal use, in the country of the license holder, on the designated hardware. A cross-national use may be additionally licensed with costs (World License).
Without limitation of the above, the license especially does not include the right to change, to copy, to port, to decompose, to re-develop or to translate the licensed software. Besides, the license holder has no right to transfer the rights of the licensed software and the software itself to third parties or to offer it for leasing or hiring or pawning, or to decree on the software in any other way.

2.2 The license holder is entitled to produce one (1) backup copy of each part of the delivered licensed software, and to use the backup copy for the replacement of the original licensed software restricted to the case that the original licensed software is not operational. The license holder is not entitled to use the backup copy of the software simultaneously with the original copy of the licensed software.

2.3 In case that the licensed software is structured by a number of parameters (as for example number of users, customers, seats, servers, units, work stations, or user interfaces), exceeding those predefined parameters is not allowed, if not an according change of the license was applied for by the license holder and agreed to by INOSIM.

2.4 With each new licence purchase, software maintenance is offered.

2.4.1 The least term of the software maintenance contract amounts 12 months. A part agency of software maintenance is not possible. If the customer acquires further software licenses during the term of the actual arrangement, INOSIM reserves the right to adjust the annual maintenance periods. With it, the term of the existing software maintenance contract is harmonized with that of the new license (see below, 2.4.3). The lengthening of software maintenance contracts (renewals) automatically covers the runtime of the former order if nothing else was determined in the former order, provided that no written dismissal (by mail, not by email or fax!) was made at least 3 full calendar months before the expiry date.

2.4.2 Before a limited-period software maintenance expires, INOSIM will inform customers and partners of it. Order lengthening occurs for a term of at least 12 months, containing the maintenance fee appropriate for the lengthening.

2.4.3 Runtime harmonization means a process for customers who own different licenses with different run times of the software maintenance. If a customer with an active software maintenance contract acquires further software licenses, both terms are harmonized to the next accounting period due to the new runtime. This means, all older license are automatically prolonged due to the new runtime.

2.4.4 When a limited-period software maintenance order of a customer has expired, the lengthening is charged to the customer in case of a later subsequent order for 12 further months from expiry date of the original expired software maintenance order. In addition, the customer has to pay a reactivation fee at the rate of 25 percent of the complete software maintenance fee for the period in which the software was not under maintenance up to the coming into force of the subsequent order. The beginning of the software maintenance of the subsequent order is the expiry date of the original expired software maintenance order.

2.4.5 Customers who acquire a new software licence without software maintenance can within 3 full calendar months after delivery of the software licence conclude a software maintenance contract, without additional fees (see the following sales paragraph) resulting. The beginning of the software maintenance contract is directed after the time of the delivery of the acquired software licences.
To the customers who resolve to conclude a software maintenance contract once at the end of 3 full calendar months, an activation fee is charged, in addition, at the rate of 25 percent of all back software maintenance fees from the time of the delivery of the licences. Before conclusion of a software maintenance contract, INOSIM does not makes available any software maintenance.
The conclusion of a software maintenance contract after acquisition and delivery of a new licence is possible only within the following 24 months. At the end of this term, no more claim on the activation of the software maintenance exists, and only the purchase of a new software licence is possible for it.

2.4.6 Customers can finish their software maintenance contract by written notice (by mail, not by email or fax!) with a term of notice of at least 3 full calendar months to the expiry date of their software maintenance contract. A part notice of licences is possible only with approval of INOSIM. The customers who do not extend their limited-period software maintenance order within a period of 24 months after the expiry date of their software maintenance order have no right to reactivation of the software maintenance. From this time only the purchase of a new software licence is possible.

2.5 For universities, advanced technical colleges and other scientific institutes, INOSIM is offering research licenses for a price minor to the commercial license (see currently valid price lists). Research licenses may not be used for commercial purposes. If a license holder uses a research license for a commercial purpose, INOSIM is entitled to claim a compensation at the rate of 50% of the value of the project for which the research license was used illegally. If the project value falls short of the value of a valid commercial license (according to currently valid price list) of the used software, INOSIM is entitled to claim the value of a commercial license (according to current price list) as a compensation. Further juridical action of INOSIM remains untouched of this compensation claim.

3. Software from third parties

3.1 The licensed software may include freeware or shareware provided to INOSIM by third parties. INOSIM did not pay license fees for such freeware or shareware, and to the license holder no fee is accounted for the their use as well. The license holder takes notice and agrees on that INOSIM will not provide any liability regarding the property and/or use of freeware or shareware by the license holder.

3.2 Certain programs of the licensed software and/or the software documentation due to the added scope of delivery may be property of third license grantors of INOSIM which, within the bounds of certain conditions of the presented contract, are third parties or intended third beneficiaries in relation to the protection of such protected software and/or software documentations. The license holder agrees that these third beneficiaries may claim the according contract conditions directly against the license holder.

4. Copyright, Trademark, Property

4.1 All rights, titles, and legal claims regarding the licensed software (even in parts) and the software documentation (even in parts) completely remain with INOSIM or their third license providers, with the exception of the rights explicitly granted by this license agreement. The license holder acknowledges that no rights regarding the licensed software and software documentation are granted to him with the exception of the rights explicitly granted by this license agreement.

4.2 Due to this agreement, the license holder is not authorized to use trademarks of INOSIM, their third license providers, or other trademarks which might resemble those carrying danger to confound, without explicit permission by INOSIM.

4.3 The license holder is obliged to keep, to reproduce resp. to add therein all declarations and notes (including copyright and trademark notes) which are contained in the licensed software or software documentation, in all copies of the licensed software and/or software documentation in the same form and way as been provided by INOSIM.

4.4 The license holder in any case has to take any efforts acceptable to keep the property resp. protection rights of INOSIM and those of the license provider(s) to INOSIM regarding the licensed software and software documentation.

4.5 The license holder is not authorized – and has to prevent others from – to copy, to translate, to modify, to produce derived works, to decompose, to re-develop, to decompile or to apply the licensed software and software documentation in any other way than specified in the amount defined by contract or usual law.

5. Material defects – software or documentation errors

5.1 For material defects, i. e. deviations of the software from the accompanying documentation (in the following called errors), errors of the media or documentation, occurring within the limitation period under paragraph 5.4 and the cause of which existed at the time of release of the software or documentation, INOSIM shall be liable, as provided for in section 5.

5.1.1 For Software or parts thereof which the license holder has been provided with free of charge, INOSIM is liable only if INOSIM has concealed the defect maliciously.

5.1.2 If the license holder does not apply his granted rights to the software, but instead to an earlier version to, INOSIM is liable for errors in the previous version only so far as they also occur in the current version. This does not affect any warranty claims regarding the earlier version of which the license holder is already in possession due to license agreements signed in this regard.

5.2 INOSIM eliminates faults in the software by choice of INOSIM by providing a new output state (‘Service Pack’), or by an upgrade in which the fault is cleared.

5.3 Defects in the data carrier of the software are eliminated by INOSIM by delivery of a faultless copy. In case of faults to data carrier material, the liability does not include the cost of replacing lost data and information.

5.4 Claims for material defects shall lapse after 12 months. The period begins with delivery of software to the license holder. This does not apply if the law according to § 438 paragraph 1 No. 2 BGB, § 479 paragraph 1 BGB and § 634a paragraph 1 No. 2 BGB in cases of injury to life, limb or health, and an intentional or grossly negligent breach of duty and fraudulent concealment of a defect requires longer periods. The regulations on expiration, suspension or recommencement of limitation periods remain unaffected.

5.5 Complaints pursuant to § § 377, 381, paragraph 2 HGB must be in writing.

5.6 First opportunity to eliminate defects must be given to INOSIM within a reasonable time, as described in 5.2 and 5.3.

5.7 If remedy of the defect fails, the license holder as required by law to withdraw from the agreement, or to lower the compensation.

5.8 Claims due to faults exist only if they are reproducible in the range specified in the reference environment. Claims do not exist which are due to faults made in case of minor deviations from the accompanying documentation, or of only minor impairment of usefulness as well as of extensions made by the license holder of the software by interfaces provided by INOSIM.

5.9 The fault diagnosis and rectification is done due to the choice of INOSIM at INOSIM or at the installation location of the software. INOSIM receives from the license holder the troubleshooting documents and information required existing with him. If INOSIM eliminates the faults at the installation location of the software, the license holder will ensure that to INOSIM the required hardware and software, as well as the required operating conditions with appropriate operational staff will be available, so that the work can be carried out quickly.

5.10 Claims of the license holder due to the purpose of remedial expenses necessary, in particular transport, travel, labor and material costs, are excluded unless the expenses increase because the software was subsequently transported to a location other than the location of the license holder, unless the transfer is in accordance with its intended use.

5.11 A recourse by the license holder pursuant to § 478 BGB INOSIM exists only in so far as the license holder has not made agreements with its customers exceeding the legal warranty claims agreements. Regarding the extent of recourse according to § 478 section 2 BGB of the license holder against INOSIM, paragraph 6.10 will be applied accordingly.

5.12 Further or different claims from those regulated in this section 6 of the license holder, for whatever legal reason against INOSIM and their agents due to a defect, are excluded if not because of willful or grossly negligent breach of duty or because of loss of life, limb or health, or the assurance of the absence of a defect there is liability. A change in the burden of proof to the detriment of the license holder is not connected with the above regulations.

5.13 The provisions of this section shall apply to material defects in the documentation and to the case of wrong or too little supply.

6. Prices and payment terms; other support

6.1 The prices of the software are resulting from the offer and are ex works, excluding packaging, plus the applicable tax rate.

6.2 The payment for the software is resulting from the offer.

6.3 Payments are to afford paying INOSIM.

6.4 The license holder may only offset claims that are undisputed or legally valid.

6.5 INOSIM due to the current list prices at INOSIM separately is billing:

6.5.1 Support for the commissioning of the software

6.5.2 Support for the analysis and removal of defects that are not caused by improper handling or by other circumstances not originating from the software, or about which the license holder has not informed INOSIM in writing after the limitation period as defined in 5.4. Payments are due within 10 days after INOSIM has provided the support and the bill is received by the license holder.

7. Commercial property rights and copyrights; defects

Unless otherwise agreed, INOSIM is obliged to deliver the software solely in the country of the delivery destination free of commercial property rights and copyrights of third parties (in the following called ‘property rights’). If a third party due to infringement of property rights of licensed software by INOSIM raises a justified claim against the license holder, INOSIM is liable to the license holder within the period specified in section 5.4 as follows. For the rest, sections 5.1.1 and 5.1.2 apply accordingly.

7.1 INOSIM by choice and at the expense of INOSIM will for that software either obtain a right to use it, modify it so that the property right is not infringed, or exchange it. If this is not possible for INOSIM to reasonable conditions, the license holder is entitled to statutory rights of rescission or reduction.

7.2 The above obligations of INOSIM exist only if the license holder has asserted INOSIM in writing immediately by the third party claims, or if the license holder does not recognize a violation with any protective measures and settlement negotiations remaining to INOSIM. If the license holder stops to use the software to reduce the damage or for other good reasons, he is obliged to notify that to the third party, with no acknowledgment of the alleged infringement.

7.3 Claims of the license holder are excluded as fas as he is in charge of the infringement.

7.4 Claims of the license holder are furthermore excluded as far as the infringement was caused by special conditions of the license holder, by use not predictable by INOSIM or in the case that the license holder has applied the changed software or applied it together with other products which were not delivered by INOSIM.

7.5 In the case of infringements of property rights, the purchaser´s claims pursuant to section 7.1 shall be applied, furthermore the provisions of the paragraphs 5.6 (supplementary performance) and 5.11 (right of recourse).

7.6 In case of other defects, the provisions of section 5 apply accordingly.

7.7 Further claims or claims different from those regulated in this section 7 of the license holder against INOSIM and their agents due to a defect are excluded if not due to intent or gross negligence or injury of life, limb or health or because of the assurance given by the absence of a defect there is liability. A change in the burden of proof to the detriment of the license holder is not given with the above regulations.

7.8 The above points refer to legal defects in the documentation.

8. Default

8.1 In case of non-compliance with the deadlines for delivery due to force majeure such as mobilization, war, rebellion or similar events, e. g. strike, lockout, such time shall be extended.

8.2 If INOSIM comes in default, the license holder, provided he can prove that having suffered a loss, receives compensation for each completed week of delay by 0.5%, not to exceed 5% of the price of the part of the software / documentation which because of the delay could not be put into useful operation.

8.3 Both claims for compensation by the license holder due to delay of release, as well as claims for damages instead of performance, beyond the limits mentioned in section 8.2, are in all cases of delayed release, even after a time limit set to INOSIM, excluded. This does not apply if liability is mandatory in cases of willful misconduct, gross negligence or injury of life, limb or health. The license holder can only regress from the contract under the statutory provisions if the delay of release is in the responsibility of INOSIM. A change in the burden of proof to the detriment of the license holder is not connected with the above regulations.

8.4 The license holder is obliged to declare at the request of INOSIM within a reasonable period, whether due to the delayed release of the provision he is to continue claiming cession and/or on which of the rightful claims and rights he insists.

9. Inability, contract adjustment

9.1 As far as the release of the software / documentation is impossible, the license holder is entitled to claim damages, unless that INOSIM is not responsible for the impossibility. However, the license holder´s compensation is limited to 10% of the value of that portion of the software / documentation, which, due to the impossibility, cannot be put into useful operation. This restriction does not apply if liability is mandatory in cases of willful misconduct, gross negligence or injury of life, body or health; a change in the burden of proof to the detriment of the license holder is not connected. The right of the license holder to cancel the contract remains unaffected.

9.2 In case of temporary impossibility, section 8 (default) is to be applied.

9.3 Where unforeseeable events within the meaning of section 8.1 change the economic importance or the contents of the cession significantly, or the operation of INOSIM significantly, the contract under the principle of good faith will be adjusted appropriately. If this is not economically justifiable, INOSIM has the right to withdraw from the contract. If INOSIM wishes to exercise this right of rescission, it shall, without delay after having realized the repercussions of the event, inform the license holder, even if at first with the license holder an extension of the delivery time was agreed upon.

10. Other compensation claims

10.1 Any further claims (in the following: ‘compensation claims’) of the license holder regarding damages and expenses, for whatever legal reason, including infringement of duties arising from the contract or tort, are excluded.

10.2 This does not apply to mandatory liability, e. g. under the Product Liability Act, in cases of willful misconduct, gross negligence, injury of life, limb or health, due to taking over the guarantee for the quality of a thing, because of fraudulent concealment of a defect or violation of essential contractual obligations. The claim for damages due to breach of fundamental contractual obligations is limited to typical, foreseeable damage if there is no willful misconduct or gross negligence, or liability for injury to life, limb or health.

10.3 In so far as to the license holder under this section compensation claims are entitled, these expire upon expiration of the applicable statute of limitations for warranty claims pursuant to article 5.4. This does not apply to intent, gross negligence, injury of life, limb or health or for any fraudulent concealment of a defect or in case of claims under the Product Liability Act.

10.4 A change in the burden of proof to the detriment of the license holder is not connected with the above regulations.

11. Export permits, transfer of contractual rights, and obligations

11.1 The export of software and documentation may – for example, by its nature or intended use – be subject to approval (see also references in the order data, delivery notes and invoices).

11.2 INOSIM may assign its rights and obligations under this contract to a third party. The transfer is not effective unless the license holder four weeks after receipt of a notification, objects to them in writing within. INOSIM will point to this in the notification.

12. Jurisdiction and applicable law, validity of the contract

12.1 The sole jurisdiction, if the license holder is a merchant, is the County Court of Lübeck, Germany.

12.2 For the contractual relationships, German substantive law is applied, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

12.3 The contract remains binding even in case of legal invalidity of individual provisions in its other parts. This does not apply if adherence to the contract would be unreasonable for a party.

13. Liability of the licensors to INOSIM against the license holder

The software can be licensed software, i. e. software that was not developed by INOSIM itself, but which was licensed to INOSIM by third parties (in the following called ‘licensors’), e. g. Microsoft Licensing Inc. Does the license holder in this case receive conditions from the software licensor, these apply with respect to the liability of the licensor to the license holder. For the liability of the license holder against INOSIM, these general conditions apply.

14. Confidentiality of offers

Our offers are confidential and exclusively designated to the recipient addressed by us. Transfer of our offers to third parties is only allowed by our written permission. In case of unauthorized transfer of our offers, we are authorized to charge to the responsible – untouched by further compensation claims – a contractual penalty of five percent of the offer´s amount. Our offers and all information given by us are without obligation and by best knowledge, though without guarantee of correctness. Prior sale and prior renting reserved.

INOSIM Support

During usual business hours

Germany +49 231 97 00 250

USA +1 214 663 3101

support@inosim.com