The End-User and DYNTELL (hereinafter referred to as the Licensor) acknowledge that the End-User has become familiar with the essential functions and operational features of the standard DYNTELL system (hereinafter referred to as the Software) as specified in the Software user agreement. The End User shall bear the risk whether the Software meets the requirements and needs of the End User not specified in the Software User Agreement. The End User should seek advice or information in writing from the Licensor or an expert third party on any matter which the End User considers doubtful before entering into the contract.
The Licensor shall deliver the software (executable machine program, user documentation in electronic form) in a standard version, in accordance with the relevant provisions of the DYNTELL Software General Terms and Conditions.
Unless otherwise agreed, the software shall be delivered in the latest stable version current at the time of delivery. The technical possibilities and conditions of use of the Software (e.g. database, operating system, hardware and media) shall be communicated by the Licensor upon written request by the End User.
The End User’s legal relationship with the Software and all other intellectual property delivered in the performance of the contract, including warranty obligations and the provision of software tracking and support services (e.g. project implementation methodology, know-how, documentation) shall belong exclusively to the Licensor or, in the case of non-DYNTELL software, to its supplier, even if such intellectual property rights may have been created in part on the basis of the End User’s specifications and with his cooperation. The End User shall be entitled to the non-exclusive rights of use for these intellectual works as set forth in Clause 4.
The rights of use acquired by the End User shall not extend to the use, copying and transfer of the software in any other way than that provided for in the contract, nor to the development of similar software using the DYNTELL software as a model.
The Licensor shall be entitled to monitor the manner and extent of use of the software by the End User.
The End User may only use the Software as specified in the Software user agreement within the scope of use specified in the Software user agreement, even if the End User has technical means that would allow him/her to technically access other components or modules of the Software.
The End User may develop up to two additional installations of the Software as productive installations for the purpose of continuous testing and internal training (hereinafter referred to as “Test Installations”). An Installation is defined as the set of all components that directly or indirectly access or interact with a user database set. A user database set is defined by the fact that each database table is included at most once.
The Software may only be developed by the End User to map its own internal business processes. This provision also applies to test installations. Centralised operation is not permitted unless otherwise agreed. Any use of the Software by a third party or use of the Software for the benefit of a third party by the End User, irrespective of the technical solution, shall be deemed to be a “hosted operation”.
Any data processing equipment (e.g. hard disk drive and central processing unit/CPU) on which the Software has been copied, in whole or in part, temporarily or permanently, must be located on the End User’s premises and must be directly owned or possessed by the End User.
The End User shall be entitled and obliged to perform data backup in accordance with the rules of technology and to make the necessary backups of the Software. A backup copy on a removable medium shall be marked as such and shall bear the copyright notice of the original medium. User documentation may be copied on paper for internal use. The End User may not alter or remove DYNTELL’s copyright notices.
The End User may adapt, modify and extend the Software only within the framework of the provisions of Article 60, paragraph 1 of Act LXXVI of 1999 (Copyright Act). The Licensor draws attention to the fact that even minor modifications may cause serious, unforeseeable disruptions in the operation of the software and other programs. The Licensor therefore expressly warns the End User not to modify the Software without authorization; the End User bears the sole risk of such modification.
End User’s rights of use shall become effective upon End User’s acceptance of the Software. For software that the End User does not receive on the basis of his initial order, but e.g. as part of a repair or product support, the rights shall take effect as soon as the End User copies the software to a hard disk drive or runs it in a central unit. The return of the Software is subject to Clause 14.
The Licensor’s written consent is required for any use of the Software that exceeds the rights set forth in these General Terms and Conditions or in the Licensor’s DYNTELL Software Terms and Conditions. If the End User exceeds his/her rights of use without such consent and does not remedy this within the time limit set in the Licensor’s written request, the Licensor may immediately revoke the rights of use from the End User by written notice. In addition, and irrespective of the revocation of the rights of use, the Licensor shall invoice the End User as a lump sum compensation an amount equal to twice the (averaged) licence usage fee for the extent of the overrun as set forth in the current DYNTELL Software General Terms and Conditions; the Licensor reserves the right to further compensation.
The End User must give prior written notice to the Licensor and obtain the Licensor’s written consent to any changes affecting its rights or the consideration payable for use.
The End User acquires a non-exclusive, non-time-limited right to use the Software.
Software from other manufacturers is subject to their specific terms and conditions. The Licensor conveys or grants rights to such software only to the extent necessary to use such software in conjunction with the DYNTELL software. These rights do not include the right to adapt or extend.
The End User may make only such modifications and extensions to the Software as are permitted by the DYNTELL Software General Terms and Conditions. The rights to the results thus obtained shall be governed by the DYNTELL Software General Terms and Conditions.
Further provisions on the use of the software are contained in the DYNTELL Software General Terms and Conditions of Use.
The Licensor is entitled to use the assistance of third parties, related companies, to fulfil its obligations under the contract.
The End User may not assign its rights under the Agreement, waive its claims under the Agreement or sublicense the Software without the Licensor’s express prior written consent.
The End User may transfer the right to use the Software to a third party only by assignment (i.e. not by renting or leasing) and only by terminating its own use. Such transfer is subject to the Licensor’s written consent, which the Licensor may not refuse without good cause. At the same time as the request for consent, the End User shall submit a duly signed declaration by the transferee of the software, in which the transferee undertakes to the Licensor to comply with the use and transfer provisions of the currently valid DYNTELL agreements. The transferee shall only be entitled to exercise the contractual rights of use,
The End-User is responsible for creating the working environment for the software, in particular for the procurement of hardware, operating system, network components, etc., and for scaling the hardware capacity. The Licensor shall provide the End User with information on these matters upon the End User’s written request.
The End User shall support the Licensor, free of charge, to the extent necessary for the performance of the Agreement, by providing, for example, staff, premises, hardware and software, data and telecommunications equipment, network access, and by cooperating in specifications, tests and handovers, etc. Provides access to hardware and software to the Licensor or to the Licensor’s subcontractor, either directly or through remote transmission facilities. The Licensor shall also respect the legitimate interests of the End User in this respect, in particular data protection. If access to the Software is not possible or not permitted by means of telecommunications equipment, the End User shall bear the costs of the technical connection to be established and the Licensor’s justified additional costs incurred in this respect.
The End User will appoint a contact person (client-side project manager) who, in addition to the management, will be the Licensor’s contact person and who will take the necessary decisions on issues arising in connection with the performance of the contract or will take them without delay. The liaison person and the Licensor’s customer support representative shall cooperate closely on all matters relating to the contract.
The End User shall thoroughly test all programs for completeness and suitability for the specific environment before commencing operational use of the software, software version. This also applies to programs that the End User receives under warranty and product support.
The End User shall take appropriate precautions in the event of partial or complete malfunction of the Software, e.g. by backing up data, diagnosing malfunctions, regularly checking results and performing other reasonably expected actions.
The End User agrees that the Licensor may include the End User in the customer list of DYNTELL and the Licensor, and list the End User as a reference customer and refer to the End User as such in press and other public announcements.
The software shall be delivered to the End User by loading the executable program and the user documentation on a storage medium or on a computer or by remote data transfer.
The Licensor shall deliver standard software in the latest stable version within one month of the conclusion of the contract and payment of the software licence fee. A shorter delivery period requires the express written consent of the Licensor. The Licensor shall not be liable for disruptions caused by strikes, intervention by public authorities, fire, force majeure and other external circumstances for which it cannot be held liable under the Civil Code (Civil Code).
If the Licensor is waiting for the End User’s cooperation or information or is prevented from fulfilling the order for reasons beyond its control, the delivery and performance deadlines shall be extended by the duration of the prevention and by the appropriate processing time after the end of the prevention. The Licensor shall notify the End User in writing of the impediment.
Any delay on the part of the Licensor shall commence upon receipt of the End User’s written notice to that effect. The End User’s notices and deadlines shall also only be valid if they are in writing. The period of grace to be fixed in this way shall be at least 15 working days.
The software license fee includes shipping and packaging. The price set at the time of the conclusion of the contract shall be deemed to be the current price, and any price changes up to the time of delivery shall be disregarded. The value added tax determined in accordance with the provisions in force at the time shall be added to all prices.
Licence-tax issues an invoice for each delivery or performance. Payments are due within 8 days of the invoice date. If the delay in payment exceeds 30 days, the Licensor may charge interest on arrears according to the Civil Code from the first day of the delay and may suspend the operation of the software and services.
The End User may only offset claims that are not disputed or that have been finally adjudicated by a court. The End User may not waive its claims in favour of a third party.
The Licensor reserves all rights in the subject matter of the contract (e.g. media and user documentation) until full settlement of its claims under the contract. The End User must immediately notify the Licensor in writing of any third party access to the subject matter of the reservation of rights and inform the third party of the Licensor’s rights.
The End User shall immediately upon receipt inspect all deliveries and services provided by the Licensor, and shall immediately notify the Licensor of any defects or objections detected, in accordance with the provisions of the Civil Code.
The End User shall communicate its objections in writing, with a precise description of the problem. Only the contact person and the management shall be entitled to raise such objections.
The Licensor warrants that the deliverables and services that are the subject of the Software user agreement comply with the user documentation. The Licensor is not responsible for any other features of the Software not specified in the user documentation and for the results that can be achieved by using the Software. Descriptions such as those contained in test programs, product and project descriptions shall not be deemed to be a commitment of features and results. A commitment to the features of the Software and the results that may be obtained from the use of the Software shall be subject to the Licensor’s express written confirmation.
The Licensor will support the End User in tracing the error and the cause of the error through software tracking. If it can be proven that the Licensor is not responsible for the error, the Licensor shall bear the costs incurred by the End User, subject to the provisions of Clause 16.
The End User shall promptly document the occurrence of errors in a traceable form, providing information to remedy the error, by completing the Licensor’s reporting form or by providing reporting information and sending it to the email address provided by the Licensor. Defects not so documented shall not be covered by the Licensor’s warranty.
The Licensor may fulfil its warranty obligation primarily by repair. Repairs are made by remedying the defect, by delivering a new version of the software or by providing the Licensor with instructions to avoid the effects of the defect. The End User shall support the Licensor in accordance with clause 6.
The End User may terminate the contract or claim a reduction of the fee only if the repair of the defect (multiple defects, if applicable) that prevents the proper use of the Software, indicated as the highest priority (PRIO1) in the Licensor’s case management, fails permanently despite a grace period of at least 30 calendar days set in writing by the End User. Any costs incurred by the End User to remedy the defect by itself or by a third party (additional performance) shall be excluded from reimbursement by the Licensor.
The Licensor shall provide a warranty starting from the delivery/installation of the subject matter of the contract until the warranty period under the Software User Agreement.
The Licensor does not guarantee that the software provided is fully compatible with all “equipment and software configurations”. In accordance with generally accepted business practice in the computing industry, the Licensor shall not be liable for any loss or corruption of data on the system, or for any direct or indirect damage attributable to the use or inability to use the system. The reason for this is that it is impossible to completely isolate the software supplied from the complex environment surrounding it, from the operating system and other software environment components, from possible faults in the computer or other hardware connected to it, from power failures or from the consequences of undetected power fluctuations. It shall be the responsibility and duty of the End User at all times to fully check the documents and forms printed by the system. The End User acknowledges this limitation of liability.
The Licensor warrants that the assignment of the rights to use the Software in accordance with clause 5 is not impeded or restricted by third party rights. Otherwise, the End User may withdraw from the contract after the expiry of a written period of notice with a reasoned notice of termination, unless the Licensor acquires for him the right to use the software under the contract. Clause 11 shall apply to the End User’s claims for damages.
The Licensor shall, at its own expense, defend any claims brought by a third party for infringement of intellectual property rights based on the Licensor’s deliveries and services, provided that such claims do not arise from the End User’s conduct. The End User may not admit such claims on its own behalf. The End User authorises the Licensor to settle any dispute with a third party either by litigation or out of court. The End User shall promptly notify the Licensor in writing and in detail of any third party claims.
The Licensor shall ensure that all information, business processes and documents processed by its personnel and all information, business processes and documents obtained in the course of its activities at the End User are not disclosed to third parties. The exception to this shall be where the information has already been disclosed to third parties by other means. The Licensor shall take into account the right to data protection under the provisions of the Data Protection Act. The Licensor may process the End User’s data by machine.
The End User shall treat as confidential all information which has come to its knowledge in the course of the performance of this Agreement, including the Agreement itself and its annexes, and which goes beyond the appearance of the system or parts thereof or the list of functions. This applies in particular to the methods and procedures used by the Licensor, its know-how and the documentation, materials and other documents relating to the system or parts thereof. The End User shall inform its employees, etc., who may have access to the subject matter of the agreement, of the Licensor’s copyright and of the confidentiality obligations towards the Licensor and DYNTELL.
The End User shall keep the objects of the Contract in a safe place to avoid unauthorized use.
In case of material breach of contract, in particular with regard to the End User’s culpable breach of clauses 4 to 6 and 13, the Licensor may, after the expiry of a period of notice specified in its written warning, immediately terminate the End User’s rights of use. In this case, the End User shall return to the Licensor all objects of the Deliveries and copies thereof and shall delete all programs stored on the data processing equipment received in connection with the Deliveries, unless the Licensor is legally obliged to keep them for a longer period. The End User shall notify the Licensor in writing of any such enforcement. The obligations arising in particular from Clauses 3 and 13 shall remain in force. The End User may not bring any claim of any kind against the Licensor as a result of the withdrawal of the right of use.
DYNTELL offers the End User the possibility to update the software version in order to keep the software up-to-date. The version update does not extend the functionality and the number of user licenses purchased by the End User, the version update means the replacement of the current version of the software with a new modified version in the light of the current legislative changes, technical progress and developments. It requires the payment of an upgrade fee (36% of the software licence fee plus the value of individual customisations) by the End-User and full End-User testing of the new software version in the software test environment.
For software versions older than two years, DYNTELL shall not be obliged to provide development, consulting and other services and to perform version upgrades.
The Licensor shall provide the services described in the then current DYNTELL Software General Terms and Conditions as software compliance. The services cover only the latest software versions delivered during the term of the existing software tracking contract. End User shall at all times maintain all installations or terminate the tracking in its entirety for all installations.
The software tracking fee shall be determined on a monthly basis. These fees are invoiced quarterly in advance by the Licensor. Payment is due under the Software Tracking Agreement.
The software tracking contract starts with the conclusion of the contract and is valid for 2 years. The parties may notify the other party of their intention to extend the duration of the contract up to 30 days before the expiry of the contract. In the event that neither Party gives notice of its intention to extend the contract, but the Parties continue to perform their obligations under the contract in the same form and content for a period of 30 days after the expiry of the contract, the Parties shall be deemed to have converted the contract retroactively to an indefinite duration from the day following the expiry of the fixed term, which may be terminated by the Parties by giving 30 days’ written notice of termination. Termination shall take effect in writing by registered letter and shall not require the giving of any reason. The Licensor reserves the right of extraordinary termination in writing, subject to justification, if the End User repeatedly or seriously breaches the provisions of Clauses 3 to 5 or Clause 13, or if the End User fails to pay for more than 60 days after the due date.
The software tracking fee is subject to change as follows: the Licensor may change the software tracking fee at the beginning of the next calendar year by written notice, in particular if the scope of the software has been increased by the purchase of additional user numbers or additional software modules and functions by the End User, upon payment of the applicable license fees. In this case, if the End User does not terminate the tracking agreement within two weeks of receipt of the notification at the end of the calendar year, the new fees shall be deemed to have been accepted. The Licensor shall refer to this circumstance in the notification.
If the User does not conclude a software tracking contract by the time the software goes live at the latest, or if the User has terminated a previously concluded software tracking contract during the indefinite period by giving notice of termination, the User may conclude a new software tracking contract provided that the User has paid twice the amount of the normal software tracking fees for the period of the indefinite period up to the date of the new software tracking contract in one lump sum.
The software tracking does not cover the installation of the software and the repair of defects resulting from: use contrary to the terms of the contract, use in a different environment than that described by the End User, unprofessional handling and intervention, or any other cause beyond the control of the Licensor. Software Tracking shall also not cover: the correction of modifications and enhancements made to the Software if they have been carried out by the End User without prior agreement with the Licensor, or if the End User has not carried out the client-side tests properly and completely.
All other provisions, in particular those relating to the scope of services and fees, are set out in the General Terms and Conditions section of this document.
Services that are not explicitly stipulated in the Software user agreement are subject to a separate agreement and are reimbursed according to the current DYNTELLSoftware General Terms and Conditions (see Annex 1).
Dyntell.EKAER software solutions are prerequisites for the operation and performance of the contract, which the End User shall provide to DYNTELL at its own discretion and expense:
The Parties mutually undertake to comply with the provisions of the Data Protection Act.
The End User shall bear the sales tax and other taxes and public charges payable by the End User under the law arising from the use of the software and services specified in the Software User Agreement.
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