Terms Of Use


GENERAL TERMS AND CONDITIONS (GTCs) of ProDyne GmbH

Licence Provisions of ProDyne GmbH - End User Licence Agreement (EULA)

Support and Service Contract of ProDyne GmbH for microMeet Products

 

NOTICE OF RIGHT TO CANCEL

The following applies to customers who are consumers in the sense of  § 13 of the German Civil Code (BGB):


Right to Cancel

Consumers are entitled to withdraw their binding offer within two weeks without giving reasons in writing (e.g. letter, fax, e-mail). The term starts with receipt of this information at the earliest. A timely submission of the withdrawal will protect your cancellation rights. Please submit your cancellation to:

ProDyne GmbH
Formerstr. 53
D-40878 Ratingen

Phone: +49 (0) 2102 / 13533 - 0
Fax: +49 (0) 2102 / 13533 ? 25
E-Mail: info@prodyne.de


Cancellation Consequences

In the event of effective withdrawal any mutually received benefits are to be refunded and possible benefits derived (e.g. interest) to be returned. If you are unable to release the rendered service either in full or in part or only in deteriorated condition, you may be liable to pay compensation in this respect. This does not apply if such deterioration of the merchandise delivered can be attributed solely to its examination - as would have been possible at a retail location. Further, you may avoid the obligation for compensation by not using the merchandise as an owner and by refraining from any actions which could affect its value.  Items transportable by parcel post are to be returned. Merchandise not suitable for parcel shipment will be picked up from your location. Return shipping expenses are to be paid by the buyer when the goods delivered are as stated and the price of the goods returned does not exceed 40 Euros, or for higher priced items, the buyer did not render services or contractually stipulated partial payment. For all other cases, return shipment is free of charge. You must fulfil your obligations for the reimbursement of payments within 30 days after submitting your cancellation notice.

 

Special Notices

Your right of withdrawal is voided prematurely if your contract partner has already started performing the service with your expressed consent prior to the end of the revocation term, or you have prompted such yourself (e.g. through download, etc.).


END OF NOTICE OF RIGHT TO CANCEL

 

 

GENERAL TERMS AND CONDITIONS (GTCs) of ProDyne GmbH

§ 1 General

 

1.  These General Terms and Conditions apply to contract conclusions and legal relationships between ProDyne GmbH and third parties unless another agreement is entered into by the contract partners in writing; the respective current version is available at http://www.prodyne.de/. A customer's or third party's conflicting or deviating conditions are only valid if expressly agreed to by ProDyne has in writing. These Terms and Conditions also apply if ProDyne performs the respective service due without reservation despite being aware of the customer's or third party's conflicting or deviating conditions . Such proceeding shall not be regarded as ProDyne's implicit consent to the third party's validity of such conflicting or deviating conditions.

 

2. These Terms and Conditions also apply to all future business transactions with the customer or third parties.


 

§ 2 Quotation, Cancellation

 

1. Quotations from ProDyne are subject to change. Contracts with customers only become effective with the written or electronic order confirmation and with the content reflected by ProDyne GmbH therein or with the execution of contract by ProDyne GmbH.

2. ProDyne GmbH may accept the customer's orders within one week after the order was submitted.

3. ProDyne GmbH reserves the right to change or deviate from the promised delivery or performance even after conclusion of the contract, provided such modification or deviation is customary in trade or negligible and does not affect guaranteed properties.

4. In the event ProDyne is unable to render agreed services in a timely manner by reasons which are beyond the parties' control (e.g. act of god, strike or other bars to performance unforeseeable by ProDyne and which are beyond ProDyne's control and cannot be overcome by means of economically reasonable expenditure), and if such is also not possible within adequate respite, both parties are entitled to cancel the contract without observance of term. In these events, the customer is entitled to claim the rendered partial performances until the time of effectiveness of the cancellation, ProDyne reserves the right to claim their proportionate claim for remuneration. All declarations in this context must be made in writing.

5. Product and performance descriptions (particularly information contained within the ProDyne GmbH website  as well as any other websites operated by ProDyne) do not constitute guarantees in the legal sense. Only guarantees submitted in writing and expressly identified as such are effective.

6. With the microMeet service operated by ProDyne GmbH, ProDyne is providing the customer a software service within current technological and operative potentials, which will facilitate virtual cooperation between two or more computers connected through the internet via a server operated by ProDyne.

7. Any misuse will entitle ProDyne GmbH to extraordinary cancellation of contract.

8. If an agreed upon delivery or performance is not available, ProDyne can be released from an obligation to fulfil the contract by immediately informing the customer of the non-availability and committing to refund a counter-performance rendered by the customer.

 

 

§ 3 Payment

 

1. In regards to compensation the respective price agreed upon with the customer is authoritative. Under non-existence of such agreement, a payment as per the ProDyne GmbH price list valid at the time of conclusion of contract is agreed. Prices are quoted plus legal VAT.

2. The pricing does not include installation or training and costs arising to the customer from an internet connection to be provided by him or from the receipt of declarations, deliveries or performances transmitted to him electronically. The maintenance of software rendered by ProDyne GmbH and the compensation for this service are subject to an additional agreement.

3. Amounts billed by ProDyne GmbH are due for payment without deduction within 14 days after rendering the delivery or the performance unless otherwise agreed in writing.

4. If the customer objects to the amount billed, he must notify ProDyne GmbH in writing within 7 days upon receipt of invoice. The failure of such timely objection is considered an approval. The customer's legal claims with well-founded objections upon expiration of the deadline remain unaffected.

5. Services received via the online portal microMeet are subject to immediate payment. You hereby agree for ProDyne to charge your credit card or a different method of payment specified by you and offered by ProDyne, including all fees, for the services requested by you.

6. In particular, the customer is obligated to

a) pay the agreed compensation in a timely manner. The customer is liable for all fees incurred by ProDyne for every insufficiently funded cheque or debit and every credit card transaction declined to the extent of his responsibility in such incurrence of expenses.

b) immediately notify ProDyne GmbH in writing of changes in name, address, banking information, credit card information or the billable party.

7. In the event of default of payment for commercial transactions, at a minimum ProDyne GmbH is entitled to default interest in the amount of 8 percentage points above the current prime lending rate. ProDyne GmbH's right to further damages or higher interest on another legal basis remains unaffected.

8. The customer may only offset undisputed or legally established claims against ProDyne GmbH. He may only base his right of retention on claims against ProDyne GmbH he is entitled to as per the respective contract.

 

 

§ 4 Delivery

 

1. ProDyne GmbH relinquishes software at its own discretion either through delivery of a data carrier containing the software owed, or by supplying the software for download and notifying the customer of such, or through electronic transmission per e-mail.

2. In the event of data carrier delivery, the risk of accidental loss or accidental deterioration is transferred to the customer from the time the data carrier leaves the warehouse for the purpose of shipment to the customer.

3. In the absence of other written agreements, specifications made by ProDyne GmbH in regards to time of delivery or performance are non-binding.

4. In the event ProDyne GmbH is prevented without fault from rendering the delivery or performance due by reason of labour disputes, official intervention, failure of supply by suppliers, illness of staff, force majeure or other unforeseen events, the terms of delivery and performance are prolonged by the duration of the interference and an adequate period for resupplying the services upon end of interference. Section 1 applies correspondingly if ProDyne GmbH is awaiting information or required cooperation by the customer.

 

 

§ 5 Usage Rights

 

1. Any rights in software surrendered or supplied to the customer are solely reserved to ProDyne GmbH in relation to the customer.

2. ProDyne GmbH permits the customer the non-exclusive right to use the software for his own purposes to the extent specified in the licence agreement or user agreement separately entered into for leasing purposes.

3. The usage rights as per paragraph 2 commences only upon full payment of the compensation owed for supplying the program. Regardless of effected payment, ProDyne GmbH commits not to make claims for injunctive relief against contractual use for a period of four weeks from the time the program is supplied.

 

 

§ 6 Provision of Servers

 

1. In cases where the contractual use of the software provided requires access to servers with software stored thereon, ProDyne GmbH will provide servers according to more detailed provision of specifications in the licence agreement to be entered into separately.

2. ProDyne GmbH has the right to disable access to its servers for the duration of the customer being in arrears with compensation for the software; however, prior to disabling access ProDyne GmbH must notify the customer of such intent in writing and the customer fail to pay within one week of such notification being sent. ProDyne GmbH shall not disable services for a period of four weeks upon supply of the program. All other right ProDyne GmbH may be entitled to by reason of the customer's payment default remain unaffected hereof.

3. In any case, including upon disconnection from the server, the customer remains obligated to pay the amounts outstanding. For leasing contracts, this particularly applies to usage fees through the end of the lease term.

 

 

§ 7 Cancellation of Leasing Contracts

 

The customer may normally only cancel the contract at the end of the leasing term. The cancellation must be submitted to ProDyne GmbH in writing no less than 1 month prior to end of lease term. In the even a timely cancellation is not made, the contractual relationship is extended by the respective leasing term agreed upon in the leasing contract.

 

 

§ 8 Customer Cooperation and Liability

 

1. The customer shall provide the working environment required for the contractual use of the software rendered. In particular, he is to provide hardware as specified by ProDyne GmbH with a suitable operating system and an internet connection at his own expense.

2. For the event of software failure or servers being inaccessible, the customer must take adequate precautions (e.g. data backup).

3. Before utilizing the software the customer will always make sure the working environment required according to the ProDyne GmbH specifications and the product and service description is also met by his contact.

4. When using the software the customer will refrain from violating legal provisions or the rights of third parties and releases ProDyne GmbH from any third party claims directed toward ProDyne GmbH based on illegal use of the software. In the event of the customer's violation against the obligations specified in section 1, ProDyne GmbH is entitled to disable the connection to their servers. Further rights of ProDyne GmbH remain unaffected hereof.

5. The customer is not authorized to relinquish the software to third parties for use without the approval of ProDyne GmbH. The contractual relationship established with the purchase or lease of a software licence does not entitle the customer to act as reseller. Such activity is subject to a separate contract with ProDyne GmbH.

6. The customer may only transfer rights and obligations arising from this contractual relationship to third parties with the approval of ProDyne GmbH.

 

 

§ 9 Examination and Notice of Non-Conformity

 

Software purchased by the client through commercial transactions is to be promptly inspected by the customer as per the provisions set forth in § 377 of the German Commercial Code (HGB) and any visible material defects reported promptly and in writing to ProDyne GmbH upon delivery, and invisible defects immediately upon their discovery. The customer is to describe the defect in detail within reason.

 

 

§ 10 Material Defects, Defects of Title

 

1. ProDyne GmbH warrants the software to be free of material defects and for the customer to be able to use the software as per the contract and not being hindered from doing so by third party rights. Material defects which only minimally limit the contractual use of the software are not a foundation for liability.

2. ProDyne GmbH will provide warranty by supplementary performance at their own discretion either through remedy of defect or resupplying material free of defect.

3. ProDyne GmbH may also eliminate defects by providing  the customer with possibilities for avoiding ramifications of a defect without unfavourable impairment of the functionality owed. In the course of supplementary performance the customer must also accept the new program or data base if doing so will result in reasonable customization or conversion efforts.

4. In the event of failure to provide supplementary performance, the customer is entitled at his discretion to request a reduction in payment or to withdraw from the contract. The customer may only claim compensation for damages as per legal provisions and under well-founded liability pursuant to § 11. Other claims by reason of defect are excluded.

5. If the customer has modified the software rendered, ProDyne GmbH shall only assume liability for defects if the defect occurred independent of the modifications.

6. In commercial transactions the customer may make claims by reason of such material defects if such defects were previously reported in due form and timely (cf. § 9).

 

 

§ 11 Liability

 

1. ProDyne GmbH is only liable for damages incurred by customers on a contractual and non-contractual basis to the following extent:

a) To the full extent under premeditation or absence of a guaranteed condition or durability;

b) in the amount of foreseeable and typical damage in cases of gross negligence;

c) In all other cases only under violation of an obligation essential for achieving the purpose of the contract (cardinal obligation), but limited to the replacement of such foreseeable and typical damage.

2. ProDyne GmbH's liability for personal injuries and pursuant to the Product Liability Act remains unaffected.

3. The customer releases ProDyne GmbH from any claims by third parties based arising from the customer's non-contractual use of software.

 

 

§ 12 Statute of Limitations for Customer Claims

 

1. The customer's claims pursuant to § 10 and § 11 para. 1 are limited to one year subject to the following provisions.

2. The statute of limitations for claims due to material or legal defects begins with the delivery of software, for all other claims for damage or replacement of futile expenditures with the time at which the customer becomes aware of the circumstances or acquired such knowledge without gross negligence.

3. Claims for refund of the purchase price or leasing fee due to termination or reduction are subject to para. 1 and para. 2 respectively, provided the statute of limitations is no less than three months from the submission of such notification or termination or request for reduction.

4. In all cases, the statute of limitations begins with termination of the maximum terms specified in § 199 of the German Civil Code (BGB).

5. Claims based on intent or gross negligence by ProDyne GmbH, the violation of a guarantee specified by ProDyne GmbH or malice, as well as in the event of claims for injury to life, body or health or based on the Product Liability Act, the legal statute of limitations applies.

 

 

§ 13 Data Protection

 

1. ProDyne GmbH and the customer commit to comply with all legal data protection regulations. In particular, the parties are to obligate all persons entrusted with processing personal data to data privacy pursuant to § 5 clause 2 of the Federal Data Protection Act (BDSG) in writing. In the case of collection, processing or use of personal data, they must further implement all technological and organizational actions required for the compliance with data protection requirements.

2. In the event ProDyne GmbH process or uses personal data during the execution of a contract entered into with the client, said must be performed upon the customer's request in terms of § 11 of the Federal Data Protection Act (BDSG). Accordingly, ProDyne GmbH shall only process or use personal data for the execution of the contract and only within the scope of the customer's instructions. In the event ProDyne GmbH is of the opinion the customer's instructions violate privacy protection regulations, it will notify the customer of such.

 

 

§ 14 Third Parties

 

ProDyne GmbH is entitled to use third parties (vicarious agents) in the execution of its contractual obligations toward the customer. ProDyne GmbH is liable for violations of obligations by vicarious agents as per § 278 of the German Civil Code (BGB) subject to the limitations and exclusions governed by § 11.

 

 

§ 15 Final Provisions

 

The jurisdiction for any and all disputes related to a contract concluded between ProDyne GmbH and a customer is Ratingen if the customer is a merchant, public corporation or a special fund under public law, or has no general national place of jurisdiction. The law of the Federal Republic of Germany under exclusion of the UN sales law applies exclusively.

 

October 2007


 

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Licence Provisions of ProDyne GmbH - End User Licence Agreement (EULA)

By downloading and/or using ProDyne services and ProDyne software products (incl. installation and copying) you as a natural or legal person approve this agreement. If you are not agreeable to this EULA, you are not authorized to use the software.

 

§ 1 Validity of the Contract Provisions

 

1. This End User Licence Agreement (EULA) is concluded between you - hereinafter also referred to as customer - and ProDyne GmbH. The EULA is applicable regardless whether the customer purchased or leased the software directly from ProDyne or a third party authorised by ProDyne. The lease or purchase or software and precedent contractual obligations are subject solely to the terms of this license agreement, unless otherwise stipulated. We expressly refer to the regulations in the General Terms and Conditions (GTCs) of ProDyne GmbH which are incorporated into this contract and are an integral part of this contract. The customer confirms his acknowledgement of the ProDyne GmbH GTCs. The regulations of the general terms & conditions are expanded and/or supplemented by the objective licence terms of ProDyne GmbH regarding the use of software and further software-specific regulations and associated rights and obligations. In the event of a deviation or contraction of the ProDyne GmbH GTCs to this agreement, the license terms take precedence.

2. ProDyne GmbH, herein after also referred to as ProDyne, leases and sells software products under the name microMeet to licensee (customer) solely on the basis of the following license terms. A customer not agreeable to the license terms is not entitled to make use of the ProDyne software and ProDyne services. In such case, the customer is not entitled to download and/or execute the software and is obligated to decline acceptance of the EULAs and/or remove the software from his computer.

 

 

§ 2 Object of the Contract, Scope of Use

 

1. The object of this contract is the granting of usage rights as per § 3 subject to the respective licence type purchased or leased and its scope of functions (compare sec. 2 of this § 2). The customer does not acquire ownership in the microMeet software itself through the purchase or lease of and the download of microMeet software. Such always remains intellectual property of ProDyne. As buyer or lessee of microMeet software the customer merely acquires the right to handle the copyrighted creation, thus use the microMeet software. Such usage right is granted by ProDyne in form of a licence available for either purchase or lease.

2. The microMeet product family facilitates establishing a connection through the internet between the customer's computer and the computer of one or more other persons (session) in a manner allowing the customer of virtual collaboration with one or more other persons using a server provided and controlled by ProDyne. The customer is provided a software component for this purpose, which is used at his location (consultant, moderator or coaching component) as well as a software component used at the location of the communication partner/s (participant component). In the following, both components will jointly be referred to as microMeet software, whereby they can be different software products within the microMeet product family, all of which are subject to this EULA. The usage rights for the microMeet software granted to the customer by force of this contract also include the right of the individual communication partners to use the participant component without a requirement for acquiring usage rights for the participant component.

3. In regards to the performance of connection services between the customer and third parties, ProDyne expressly only grants guarantee in the form of a server availability of 99 % being provided by ProDyne or by a third party on behalf of ProDyne GmbH. Excluded from this are periods of web server downtime due to technical or other problems not within the control of ProDyne (e.g. force majeure, fault of third parties, internet access disruptions by network provider). ProDyne does not assume any liability for any requirements for use beyond the software being available at all times and permanently. However, it will make efforts to ensure a connection within reason and the customary software service life.

4. The volume of the usage right firstly results from the functional product description upon which the license is based, and the indicated technical specifications for the respective licence type and/or system purchased.

5. Prior to conclusion of the contract the customer has verified the microMeet software specifications to be suitable to his demands and needs. He is familiar with the essential functional features and conditions of the microMeet software. The customer acknowledges the minimum system requirements for the operation of the respective microMeet software must be met. microMeet supports the Microsoft Windows operation systems 98, ME, NT, 2000, XP, Vista and 2003 Server. In order to use microMeet, the customer must have an existing internet connection.

6. Type, extent and quality of the microMeet software arise from the product description for the microMeet software provided by ProDyne, or else the written offer by ProDyne. Other specifications or requirements will only become a part of the contract if the contracting parties agree to such in writing or they have been confirmed by ProDyne in writing. Subsequent changes to the scope of services are subject to a written agreement or written confirmation by ProDyne.

7. Product descriptions and demonstrations in debuggers are service descriptions, not warranties. A warranty requires a written statement by the ProDyne management.

8. The customer is not entitled to relinquishment of the source program. ProDyne renders all deliveries and services as per current technology. ProDyne reserves all rights not expressly mentioned in these EULAs. If the microMeet software is marked as "Nicht zum Weiterverkauf bestimmt" or "Not for resale" in any way, the microMeet software shall neither be sold nor transferred.

9. ProDyne stores the customer information required for processing the transaction in compliance with legal data protection provisions. The customer hereby agrees to such use.

 

 

§ 3 Customer's rights in the software

 

1. The microMeet software, microMeet services, any and all programs, the symbols used, the ProDyne logo, the microMeet logo, written documents and documentations are protected by law. Copyright, patent rights, trademark rights and all other ancillary copyright and industrial property rights in microMeet software and the microMeet services as well as in other items specified above rendered or made available to the customer by ProDyne in the scope of preparation of negotiations and execution of contract in relation to the contract parties are the sole ownership of ProDyne. Any entitlements to third parties are subject to ProDyne's respective patent rights.

2. The customer acquires the microMeet software to permanently use for his own purpose (simple usage rights). A customer leasing the microMeet software is entitled to its use for the duration of the lease contract. The customer is entitled to use the software on any number of computers within his company. However, the simultaneous use is limited to the number of simultaneous sessions (Concurrent Licenses) acquired by the customer. ProDyne grants the customer the authority for the microMeet software required for such purposes of use including the right to copy the microMeet software to RAM and hard drives. The customer is permitted to make backup copies of the programs required for secure operation. Backup copies must be marked as such. Copyright information may not be deleted, modified or suppressed.

3. ProDyne expressly authorizes the customer to use part of the microMeet software be supplied to a third party free of charge, provided said component of the software is intended for use by a third party (participant component). This part of the microMeet software may optionally be made accessible to the other person/s via download, e-mail or another electronic form. ProDyne only assume liability for damages arising from loading the microMeet software pursuant to § 6 cipher 3 of this EULA.

4. The customer is not authorized to circulate the microMeet software, especially on the basis of a sale, without the written consent of ProDyne GmbH. ProDyne will authorize a transfer of software (in whole or in part) to third parties under the following conditions:

- The customer will supply the third party with the original data medium (if available), this EULA and the ProDyne GmbH GTCs, delete all other copies, particularly on data carriers, on hard drives or RAM, cease and desist from using the software and confirm fulfilment of such obligations to ProDyne in writing.

- The third party affirms to ProDyne receipt of previously mentioned components and that he acknowledges GTCs and the EULA recognizes them as binding in his legal relationship with ProDyne.

- There are no significant conflicting reasons.

5. The customer is only permitted to decompile the interface information of the software within the limits of § 69 e of the Copyright Law (UrhG) and only upon notifying ProDyne GmbH in writing of his intention hereof and has requested the relinquishment of required information with a minimum term of two weeks. All knowledge and information gained by the customer in line with decompiling are subject to § 8. Prior to every involvement of third parties he shall provide ProDyne with a written statement by the third party, committing to compliance with the rules stipulated in §§ 3 and 8.

6. Any other utilisation, particularly rental, commercial sale (unless expressly and separately agreed upon in writing), leasing and distribution in physical or non-physical form are not permitted without prior written consent of ProDyne.

7. Contract subjects, documents, drafts, debuggers or other data and information by ProDyne which become accessible to the client prior to or upon conclusion of the contract are considered intellectual property and business and company secret of ProDyne and are to be kept confidential pursuant to § 8 .

 

 

§ 4 Provision of Servers and Server Software

 

1. ProDyne provides servers free of charge and according to more detailed determination of the ProDyne specifications in product and performance description. The contract software provided to the customer and stored thereon is hereinafter referred to as "server software". The servers with the server software are required for establishing a connection between the end user and his respective communication partner when using the microMeet software.

2. The obligation according to para. 1 clause 1 is limited to the provision of servers with server software stored thereon, via the internet with the availability described in the ProDyne product and performance description. The customer is to provide the required working environment and in particular is to provide hardware as per the ProDyne specifications with a suitable operating system and an Internet connection at his own expense.

3. In the relationship between the contract partners, ProDyne is solely entitled to all rights in the server software stored on ProDyne's servers. ProDyne merely furnishes the server software on servers of their own choice; the customer is not entitled to relinquishment of a copy or the source code for the server software. If the contractual use of the microMeet software requires the customer's use of the server software, the customer is authorized to the use of the server software to the required extent.

4. Upon request, ProDyne will provide the customer server software for use on his own servers. This requires the conclusion of a separate purchase and license contract for the server software. The provisions of the license contract for the server software take precedence over the regulations of the present license contract for the provision of software.

 

 

§ 5 Contract term and expiration of contract

 

In the event of cancellation due to violation of this EULA, the customer is obligated to return all original versions and copies of the microMeet software and all other components or to destroy such and confirm such destruction to ProDyne in writing.

 

 

§ 6 Customer's Obligations

 

1. The customer, if he is an entrepreneur, is obligated to inspect all items delivered by ProDyne immediately upon delivery pursuant to the legal commercial regulations (§ 377 German Commercial Code (HGB)) and report any detected faults in writing under detailed description of the defect. The customer thoroughly tests each module for usability in the specific situation prior to commencing operative use. This also applies to programs supplied to the customer within the scope of supplementary performance or upon conclusion of a maintenance agreement.

2. The customer shall take adequate measures for the event the program does not operate properly in whole or in part. It is within his scope of responsibility to ensure the operation of the program's working environment. Here, in particular, the customer is to perform any necessary changes to his firewall or similar data protection mechanisms, as well as within his network or his server. The risk of incompatibility of the microMeet software with the customer's software or hardware is not within the ProDyne range of responsibility.

3. ProDyne's logo and/or trademarks may not be used or modified by the customer without prior express written consent the ProDyne management.

4. The customer is obligated to release and defend ProDyne from all third party claims including adequate attorney's fees arising or resulting from the use of this software.

 

 

§ 7 Liability for Defects, General Liability/Damages

 

1. The following regulations apply to material defects:

a) microMeet software features the agreed quality, is suitable for the contractually stipulated or common use is of a quality typical for software of this type; but it is not error-free. Not every defect software inevitably features results in the full right of the customer, particularly withdrawal and damages. A functional interference to the microMeet software resulting from hardware defects, ambient conditions, operating errors or the like does not constitute a defect. Negligible loss of quality remain discounted.

b) In the event of material defects ProDyne is entitled to provide remedy. At ProDyne's discretion, supplementary performance may be elimination of the defect, i.e. also by providing options for avoiding the ramifications of the defect or by supplying a program not without this defect. An equivalent new program version or the equivalent previous program version free of such defect must be accepted by the customer within reason.

c) The customer will support ProDyne in the analysis of errors and elimination of defects through detailed description of errors, informing ProDyne comprehensively and granting the time and opportunity required for eliminating such defect. At its discretion, ProDyne may perform such elimination of defects on site or in within its office. ProDyne may also provide services via remote maintenance. At his own expense the customer has to provide the required technical preconditions and grant ProDyne access to his EDP equipment after corresponding previous announcement.

d) ProDyne may demand incremental costs arising from the modification, use beyond the specified environment, or incorrect use of microMeet software. ProDyne may demand reimbursement of expenses if no defect is found or an error was insufficiently/incorrectly communicated. The burden of proof is with the customer. The regulation contained within § 254 of the German Civil Code (BGB) applies accordingly.

e) If ProDyne irrevocably refuses remedy or such ultimately fails or is not within a reasonable scope for the customer, he may withdraw from the contract in writing or adequately reduce payment and claim compensation for damages or reimbursement for expenses according to no. 3 of this § 6.

f) Unless other specified above, further liability of ProDyne in the scope of liability for material defects is excluded. In particular, liability for material defects is not applicable if and in so far as the customer's improper handling of the microMeet software or its use in a defective or incompatible hardware or software environment. The same applies in the event the customer performs unauthorised changes to the microMeet software.

2. The following applies to legal defects:

a) ProDyne guarantees the contractual use of microMeet software not to conflict with the rights of third parties. In the event of defects of title ProDyne grants warranty at its discretion by providing the customer with a legally faultless application of the microMeet software or equivalent software. If this is not possible, the customer is refunded his purchase price.

 b) The customer shall promptly notify ProDyne in writing of third parties making claim to trademark rights (e.g. copyrights or patent rights) against him. The customer authorizes ProDyne to handle such dispute with the third party on its own. If ProDyne use this authorisation, the customer is not permitted to acknowledge claims made by the third party without ProDyne's approval. ProDyne shall defend such third party claims at their own expense and releases the customer from all expenses associated with such defence, when these are not a result of non-contractual activities by the customer (e.g. non-contractual use of programs).

c) The regulations under § 6 b), c), e) and f) apply to legal defects correspondingly.

3. The following applies with regard to compensations claims for damages and reimbursement of expenses:

a) The following limitation of liability applies to claims for compensation due to liability for defects or other customer claims for compensation as well as reimbursement of expenses not included under 1 and 2 of this § 6:

aa) In the event of the customer's assertion compensation or reimbursement of expenses, ProDyne shall be liable pursuant to legal regulations, provided claims made are based on violation by premeditation or gross negligence by ProDyne, i.e. also their legal representatives and executive employees. ProDyne will only be liable for fault of other servants to the extent of liability by slight negligence as per cipher 3 a) bb) of this § 6.

bb) ProDyne is liable according to legal regulations under culpable i.e. also in case of slight negligence, violation of an essential contractual obligation (cardinal obligation); in this case, in relationship with an entrepreneur, liability for compensation of damages is limited to the foreseeable, common damage, but no more than 5,000 EUR per incident and to up to 20,000 EUR for all liability cases combined. ProDyne reserve the right to plea contributory negligence. The customer is particularly obligated to data backup and virus protection as per the current state of technology.

b) In the event of violation of life, body and health, with claims according to the Product Liability Act and claims for "warranty", however, legal regulations always apply. Unless expressly otherwise stipulated in this item 3, further liability of ProDyne regards to liability for compensation is excluded for all other cases. This particularly applies with regard to claims for arising due to fault with the conclusion of contract, due to other violations of obligations or by reason of other criminal claims for compensation pursuant to § 823 of the German Civil Code (BGB).

4. The customer is advised, in line with due diligence he is obligated to inspect the microMeet software prior its initial use, to verify whether the execution of the software could result in major conflicts with other software already installed, and to a data backup prior to initial execution and during its routine operation, and that he must take all reasonable safety precautions in the event of suspected software error.

5. If the liability for compensation of damages is excluded or limited by ProDyne, such also applies with regard to personal liability for damages of its staff, employees, personnel, agents and vicarious agents.

 

 

§ 8 Commencement and End of the Customer's Rights

 

1. Ownership in the items delivered and rights pursuant to § 2 and § 3 are only transferred to the customer upon complete payment of the purchase or leasing price. Prior to such occurrence, he is solely entitled to preliminary, in personam and usage rights revocable as per sec. 2.

2. ProDyne may revoke rights as per § 2 and § 3 or withdraw from contract for important reasons, particularly reasons specified in § 3 of the ProDyne GmbH general terms & conditions. In particular, an important reason is present if the customer fails to pay the amount due or continues violating the obligations defined in § 2 and § 3 of this contract in a considerable manner despite written notice.

3. If the usage right according to § 3 i.V.m. § 2 does not come into being or ends, ProDyne is entitled to demand the customer to return the items relinquished or the written confirmation of their destruction, as well as the deletion or destruction of all copies and the written assurance of such.

 

 

§ 9 Applicable Law, Place of Jurisdiction

 

The law of the Federal Republic of Germany under exclusion of the UN sales law applies. Place of performance and place of jurisdiction for all disputes arising from and in connection with this contract is the registered office of ProDyne GmbH for contracts with entrepreneurs.

 

 

§ 10 Severability Clause

 

In the event a provision of this contract is or becomes void, the validity of the remaining provisions of this contract remain unaffected thereof, including when essential provisions are affected. For this case, the parties agree to replace the invalid provision by a legally effective regulation legally and economically closest to the contractual clause and ensures the viability of the contract in the sense of the intentions of both parties. The same applies in the event the parties were unaware of a legal loophole at the time the contract was entered into, or if such a gap emerges or arises at a later point of time. The parties are then obligated to a written contract amendment in the sense specified above.

 

Date: October 2007

 

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Support and Service Contract of ProDyne GmbH for microMeet Products

§ 1 Subject of the Contract

 

1. Subject of this support and service contract is the rendering of support and service performances by ProDyne in regard to the microMeet software (hereinafter "contract software") listed in attachment 1.

2. If the customer acquires additional licenses, modules and updates of the software, the support and service contract also applies to these.

3. As per this contract, ProDyne GmbH renders services only for the latest available version of the programs purchased by the customer with conclusion of the contract or its term. However, ProDyne will only support the respective previous version for a period of twelve months upon announcing the availability of a follow-up version.

 

 

§ 2 Payment

 

1. In payment of all performances resulting from this support and service contract, the customer shall pay ProDyne GmbH a compensation in the amount of 15 % of the list price for all microMeet licenses covered by this support and service contract.

2. The compensation according to sec. 1 is not payable by customers using microMeet licenses in line with a leasing model.

3. The support and service fee as per sec.1 is to be paid in advance and for one contract year. The support and service contract also includes additional microMeet software acquired during the term of the support and service contract and additional microMeet licenses in microMeet software already present or acquired during the term of the support and service contract.

4. Compensation does not include the respective applicable legal VAT.

5. Additional services by ProDyne not listed under § 3 are to be separately paid by the customer in accordance with the current ProDyne price list valid at the time services are rendered. Invoices for such are payable immediately.

6. Travel costs and expenses have to be paid separately if the customer demanded ProDyne's presence on site or if other performances in the sense of § 6 are rendered.

 

 

§ 3 Maintenance Services

 

1) Maintaining Functionality
 a) ProDyne will try to promptly eliminate errors reported to the hotline by the customer as per sec. b.) 2. ProDyne will handle the reported errors of the contract software in correspondence with their categorisation:

- Errors which are classified as critical operating errors upon review by ProDyne GmbH: Initiation of corresponding troubleshooting measures no later than the business day following error reporting (holidays in North Rhine-Westphalia are not business days) if such is possible with reasonable effort.

- Errors which are classified as non-critical operating errors upon review by ProDyne GmbH: Initiation of corresponding troubleshooting measures no later than the second business day following error reporting (holidays in North Rhine-Westphalia are not business days) if such is possible with reasonable effort.

- Errors which are classified as other and minor errors after review by ProDyne GmbH: The error is corrected with the next update. Until then ProDyne GmbH will make all reasonable efforts to support the customer in handling or eliminating the error himself.

b) A liability does not exist on the part of ProDyne for "Other and minor errors". Service through personal presence on site is not owed.

c) ProDyne is entitled to determine by equitable discretion whether programmatical performances can also be rendered by delivery of data mediums (incl. updates or upgrades of the contract software), by commissioning third parties or by instructing the customer's staff as to program modifications or changes to the program parameters. 

d) ProDyne is free to employ third parties, so-called vicarious agents, for the fulfilment of contractual obligations arising from this support and service contract.

2. Hotline
a) To support customers in the event of errors with the contractual use of the contract software ProDyne is offering a service hotline.

b) The customer may reach the hotline via his technical contact (as per § 4.1) via telephone or via e-mail, Monday through Friday (except on legal holidays in North Rhine-Westphalia) between 09:00 a.m. and 07:00 p.m.

 

 

§ 4 Obligations to cooperate

 

1. The customer will support ProDyne in the fulfilment of the contractual obligation to perform as per § 3. In particular, he will

- only install the contract software on computers with the operating systems specified by ProDyne and provide for an Internet connection at his own expense.

- also advise his conversation partner of the system requirements when microMeet is used.

- name in writing a responsible contact person and his proxy for the term of the contract. Error reporting and inquiries to the hotline are only made by the responsible person or his proxy.

- report errors through the contact person via telephone or e-mail. In doing so, he will describe as detailed as possible the symptoms, the system and hardware environment, as well as potentially simultaneously loaded third-party software and the circumstances under which the error occurs as well as the impacts on the contract software.

- within the scope of his possibilities, make all efforts to support ProDyne in its search for the error source and, if necessary, order his staff members to cooperate with the persons authorised by ProDyne.

- in case of on site consulting or online maintenance, grant access to the computers on which the serviced programs are stored and/or loaded to the personnel charged by ProDyne with the execution of the software maintenance services.

- import the programs and/or program components (patches, bugfixes) received from ProDyne upon detailed instruction by ProDyne and observe the proposals made by ProDyne for error detection and error elimination.

2. The customer is incumbent on the proper installation of updates or new versions according to the instructions. The provisions on warranty remain unaffected.

3. The above stated obligations to cooperate are essential contractual obligations. If the customer violates his obligations to cooperate, ProDyne is not obligated to perform services. In case of repeated or severe violation of obligations, ProDyne is entitled to cancel the contract within a term of one month. The contractual relationship ends with the end of the following month.

 

 

§ 5 Further Development of the Program

 

1. ProDyne continues to develops the contract software at their own discretion under consideration of changed market requirements, customer requirements and error reporting. These continued developments are provided to the customer in the scope of this support and service contract in the form of updates or new software releases.

2. Time and volume of the continued development of the contract software are exclusively determined by ProDyne.

 

 

§ 6 Services not covered by the flat rate

 

1. Upon the customer's request, ProDyne will provide further services associated with the software but not included in the performances according to § 3 of this support and service contract against compensation to be separately agreed-upon. This particularly applies to

- work and services at the customer's location;

- work and services associated with programs not covered by this contract;

- all work and services which are performed at the customer's request beyond the normal office hours (09:00 a.m. - 06:00 p.m.) and which are not required as per § 3;

- work and services necessary due to improper handling of the contract software and/or violation of customer's duties, e.g. non-compliance with system requirements, regardless whether these were made by the customer, his vicarious agents or other persons not authorised by ProDyne;

- work and services necessary due to force majeure or other circumstances ProDyne is not liable for;

- work and services which are necessary in connection with the installation of an update/upgrade/release provided to the customer, instruction and training for such program versions as well as freight and shipping costs.

2. ProDyne is not obligated to perform services which are not part of this contract, especially the above stated performances. But within the framework of their operational capabilities it will make all efforts to support the customer as necessary for the economic utilisation of the services programs.

 

 

§ 7 Usage Rights

1. The usage right in the software which is technically replaced by software delivered according to this support and service contract, expires two weeks after the customer has started using the supplied software productively, but no more than one calendar month upon the customer's receipt of the supplied software. The customer is obligated to delete the previous versions replaced by the supplied software including potential backup copies, and to confirm such to ProDyne in writing upon request.

2. ProDyne grants the customer a usage right for the software rendered as per this support and service contract pursuant to the specifications in the license contract concluded between the customer and ProDyne.

 

 

§ 8 Warranty for error recovery

1. A maintenance service is not considered as faulty if ProDyne offers the customer a reasonable alternate solution in place of error recovery. Furthermore, ProDyne are also entitled to make changes to the serviced software so long as the performance features do not change considerably for the customer.

2. If ProDyne is not successful at fulfilling their owed obligations within a reasonable term, the customer is entitled to reduce the maintenance fee upon granting and expiration of a further adequate grace period. The customer's further legal rights remain unaffected so long as no variations arise from the following sections. The right of withdrawal or assertion of damages does not apply unless other or minor error is present.

3. The customer is not authorized to troubleshoot errors himself and then claim compensation for the necessary expenditure.

4. The warranty becomes void if the customer or third parties make modifications to the contract software without the prior express consent of ProDyne. This does not apply if the customer can prove the error does not arise from the modifications and that these did not impede the error identification and recovery. The right of the customer to make changes required for the contractual use of the serviced programs remains unaffected.

5. Warranty claims expire 12 months upon acceptance of the work performance.

6. If it turns out the performances rendered by ProDyne are not subject to warranty, the customer is liable for costs including any potential travel expenses and per diems. In case of reimbursement of expenses by the customer, ProDyne's respectively current hourly and travel rates apply.

 

 

§ 9 Liability

1. ProDyne GmbH is only liable for damages incurred by customers on a contractual and non-contractual basis to the following extent:

a) To the full extent under premeditation or absence of a guaranteed condition or durability;

b) in the amount of foreseeable and typical damage in cases of gross negligence;

c) In all other cases only under violation of an obligation essential for achieving the purpose of the contract (cardinal obligation), but limited to the replacement of such foreseeable and typical damage.

2. ProDyne GmbH's liability for personal injuries and pursuant to the Product Liability Act remains unaffected.

3. The customer releases ProDyne GmbH from any claims by third parties based arising from the customer's non-contractual use of software.

4. If ProDyne employs vicarious agents with the fulfilment of their contractual obligations towards the customer, ProDyne is liable for this vicarious agent according to § 278 of the German Civil Code (BGB) within the scope of the limitations and exclusions regulated in sec. (1) - (3).

 

 

§ 10 Term

 

1. The support and service contract becomes effective with signing by both contracting parties and has an unlimited term.

2. Both contract parties have the right to cancel the support and service contract with a term of 3 months prior to the end of a contract year.

3. The right of both contracting partners to cancel by important reasons remains unaffected. In particular, an important reason is present

a) if one contracting partner initiates insolvency proceedings for his assets or if the initiation of insolvency proceedings for the assets of one contracting partner is rejected for insufficiency of assets or if insolvency proceedings are initiated for the assets of one contracting partner,

b) if the customer is in arrears with payment of the compensation, repeatedly or beyond a period of one month following the event causing the delay unless the amount is negligent.

4. If a defect exists and the customer asserts claims due to definite failure of remedy, the right of withdrawal from the contract is replaced by the right to cancel the contract with the provision that reimbursement of the flat fee amounting to the support and service fee for the current year can be claimed only.

5. The cancellation must be made in writing to become effective.

 

§ 11 Applicable Law, Place of Jurisdiction

 

The law of the Federal Republic of Germany under exclusion of the UN sales law applies. Place of performance and place of jurisdiction for all disputes arising from and in connection with this contract is the registered office of ProDyne GmbH for contracts with entrepreneurs.

 

 

§ 12 Severability Clause

 

In the event a provision of this contract is or becomes void, the validity of the remaining provisions of this contract remain unaffected thereof, including when essential provisions are affected. For this case, the parties agree to replace the invalid provision by a legally effective regulation legally and economically closest to the contractual clause and ensures the viability of the contract in the sense of the intentions of both parties. The same applies in the event the parties were unaware of a legal loophole at the time the contract was entered into, or if such a gap emerges or arises at a later point of time. The parties are then obligated to a written contract amendment in the sense specified above.

 

Date: October 2007

 

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