General Terms and Conditions of BeamXpert GmbH and Software License Agreement
General Terms and Conditions of BeamXpert GmbH (“General Terms and Conditions”)
1.1 These General Terms and Conditions shall apply to all supplies, services and licenses of any kind provided by BeamXpert GmbH (“BeamXpert”) to its customers (“Customers”) to the extent that no contrary agreements have been made in the purchase, license, service, work or other contract (“Contract”) concluded between BeamXpert and the Customer. These Conditions shall also apply to all future contracts even if they are not explicitly agreed therein.
1.2 BeamXpert sells and provides services exclusively to entrepreneurs as defined in Section 14 of the German Civil Code BGB (B2B) and not to consumers as defined in Section 13 of the German Civil Code BGB.
1.3 “Deliverables” shall mean the goods, rights, licenses, or tangible or intangible works which are the subject matter of the respective Contract.
1.4 The Customer’s general terms and conditions are hereby rejected unless BeamXpert has expressly agreed in writing to such terms and conditions. Such consent shall apply only to the specific contract and does not extend to former or future deliveries and services.
2 Order, Delivery
2.1 Orders (especially purchase offers) to BeamXpert may be accepted within two weeks either by performance or by an order confirmation.
2.2 The Software shall be delivered in the current version at the date of delivery. All Deliverables shall be delivered ex works (EXW BeamXpert Berlin, Incoterms 2010). Prices quoted by BeamXpert shall be deemed agreed on this basis. Unless otherwise agreed, BeamXpert will arrange for shipping, packaging and – on explicit request of the Customer – insurance at the Customer’s expense. Within reason, BeamXpert shall meet Customer’s requests concerning the mode of dispatch and shipping route.
2.3 BeamXpert shall be under no obligation to observe any agreed delivery date until and unless the Customer has complied fully with all its responsibilities regarding delivery. Time shall not be regarded to be of the essence except if agreed in writing. No delivery date shall be binding on BeamXpert unless it has been expressly confirmed as “binding”. In case a fixed delivery date has not been agreed, BeamXpert shall effect delivery within a reasonable period of time.
2.4 As long as BeamXpert (i) waits for the customer's cooperation or information or (ii) is affected in its performance by strikes or lock-outs in third-party companies or in BeamXpert’s company (in the latter case, however, only if the labour dispute is lawful), official intervention, legal prohibitions or other circumstances beyond reasonable control (“Force Majeure”), the dates agreed for performance and delivery will automatically be deemed postponed by the duration of the impediment as well as a reasonable restarting period (“Downtime”). There is no breach of duty for the duration of the Downtime. BeamXpert shall without undue delay inform the Customer of such impediments and their expected duration. If the Force Majeure lasts uninterruptedly longer than three months, both parties will be entitled to immediately rescind from the contract.
2.5 BeamXpert reserves the right to make partial deliveries, provided that this is reasonable to the customer.
3 Prices, Terms of Payment
3.1 Value Added Tax shall not be deemed included in the prices quoted by BeamXpert, it will be billed and shown separately in the invoice at the statutory rate.
3.2 Deliveries shall be performed against prepayment, unless otherwise provided for.
3.3 If the delivery or service is not made to Germany, Customer is responsible for paying possible taxes, customs duties and other levies that might arise from delivering goods or providing services to this country.
3.4 All invoices shall be due and payable net upon receipt without any deduction, unless otherwise agreed in the Contract. Even without a reminder, Customer will be deemed in default with a payment at the latest ten days after the due date and receipt of the invoice.
3.5 BeamXpert reserves the right to send invoices via e-mail. Encryption of these e-mails is not necessary.
4 Specifications, Scope of Service
4.1 The specifications of the Deliverables, which are valid at the time of submission of the purchase offer, shall be conclusively authoritative for the characteristics of the Deliverables. BeamXpert does not owe any additional characteristics of the Deliverables. In particular, Customer cannot derive any such obligations from other descriptions of the Deliverables in public statements or in the advertising of BeamXpert or statements by employees or sales partners of BeamXpert unless BeamXpert has expressly confirmed such exceeding qualities in writing.
4.2 In any case, guarantees of quality require an explicit statement on BeamXpert’s part.
4.3 The Software sold by BeamXpert accesses the Internet to check the availability of updates and, if necessary, to download these. The Software might also access the Internet in the scope of the copy protection. The serial number, version number or the expiration date of the Software, among other information, will be transmitted in order to verify the authorization to use the Software.
4.4 Installation, instruction, consultation, training, etc. will only be provided if they are part of an additional agreement between the Customer and BeamXpert.
5 Customer’s Cooperation and Information Obligations
5.1 The Customer has familiarized himself with the major function characteristics of the Software before issuing a purchase offer and assumes the risk as to whether they meet his requests and needs; in any case of doubt, the Customer must obtain advice from a BeamXpert employee or from knowledgeable third parties prior to issuing a purchase offer.
5.2 At his own expense and risk, the Customer shall provide BeamXpert with an adequate access to any form of infrastructure (including electricity and Internet access, facilities and technology for example for training purposes), support staff and information (including access data) as well as access (including remote access using a standard method according to the requirements of BeamXpert) to his IT equipment and data as necessary to perform the contractual services including troubleshooting and bug fixes.
5.3 The installation of a fully functional hardware and software environment, including internet access, that is also sufficiently equipped when taking into account the additional load due to the Contract Objects, shall be the exclusive responsibility of the Customer, unless explicitly agreed otherwise. If BeamXpert advises the Customer of a company for the installation preparations, the latter shall not be deemed BeamXpert’s vicarious agent.
5.4 The Customer is obligated to install updates without undue delay. The Customer may only object to installing an update if he agrees to adequately compensate BeamXpert for the additional cost incurring from supporting an old version of the Software.
5.5 Before deployment, the Customer shall thoroughly test whether the Software is free of defects and usable under the existing hardware and software configuration. This also applies to Software, which the Customer receives for warranty or maintenance purposes.
5.6 The Customer shall inform BeamXpert of defect in a level of detail that enables BeamXpert to reproduce the problem. BeamXpert may demand the use of a ticket system.
5.7 The Customer shall adhere to the instructions for installation and operation provided by BeamXpert; he shall regularly check BeamXpert’s Website for up-to-date information and take this into account in the operation of the Software.
5.8 In the event BeamXpert provides more services than the supply of the Software, the Customer shall cooperate free of charge to the required extent, for example by providing employees, workspaces, hardware and software, data and telecommunication equipment.
5.9 The Customer shall take adequate measures in the event that the Software does not – partially or entirely – operate properly (e.g. through daily alternating data backups (on different data carriers), error diagnosis and regular examination of the data processing results). The responsibility of creating data backups lies solely with the Customer. The Customer undertakes to ensure that data is always backed up in accordance with the state of the art and ensures the functionality of the backups. BeamXpert may act on the assumption that all data of the Customer BeamXpert gets in touch with are backed up according to the state of the art, unless a prior advice of the Customer explicitly states otherwise.
5.10 The Customer shall not export any Deliverables and technical information received from BeamXpert to a country other than the country to which BeamXpert has delivered.
5.11 Upon termination of his right of use for whatsoever reason (e.g. rescission, replacement), the Customer shall immediately hand over all Deliverables and delete and destroy every copy unless he is legally required to store them. The Customer shall assure BeamXpert of the execution in writing.
5.12 In the event of the Software being resold, the Customer shall inform BeamXpert of the full name and address of the purchaser in writing.
5.13 The Customer shall store the Software at a location that is secure from unauthorized access by third parties and carefully instruct his employees to comply with the contract terms and provisions of the copyright laws.
5.14 The Customer shall carry any disadvantages and costs arising from a breach of his obligations.
6 Warranty, Examination, Complaint
6.1 In the event of any material defects or defects of title, the Customer may exercise his statutory remedies for rectification or subsequent delivery and, only where that fails or in other exceptional cases as provided for in law, withdraw from the contract or reduce the agreed remuneration (“Warranty Claims”), subject to the following limitations:
6.2 Any Warranty Claims shall be excluded (i) unless the defect in question deviates significantly from the agreed specification or substantially limits the suitability of the Deliverable for the agreed purpose and (ii) if and to the extent such Warranty Claim results from information, works or services or components provided by Customer.
6.3 The Customer shall inspect any Deliverables and notify BeamXpert of any defects or deviations immediately upon delivery. In the absence of such immediate notice, the Customer shall be deemed to have accepted any deviations of the Deliverables that could have been detected, in particular, without limitation, (a) defects, or (b) delivery of (i) a quantity or (ii) a product other than agreed. The notice shall in particular not be deemed immediate if it is received more than 14 days after delivery.
6.4 BeamXpert reserves the right to decide whether to repair or to replace any Deliverable which should prove to be defective. If BeamXpert fails to exercise such right within a reasonable time limit set by Customer, such right shall pass to Customer. BeamXpert shall have least two attempts at such repair or replacement, except where this should unduly prejudice Customer in individual cases. Where BeamXpert replaces a defective Deliverable, the Customer shall return the defective Deliverable to BeamXpert and compensate prior use of such Deliverable.
6.5 BeamXpert is entitled to make subsequent performance dependent on the customer having paid at least paid a reasonable part of the remuneration.
6.6 If BeamXpert provides services in troubleshooting or bug fixing without being obliged to do so, BeamXpert reserves the right to demand remuneration in accordance with its standard rates, especially if the defect is cannot be proven or cannot be attributed to BeamXpert. The Customer shall reimburse BeamXpert for any additional costs arising from the Customer neglecting to fulfill his contractual obligations.
6.7 Warranty Claims shall be excluded to the extent that the Customer (a) uses the Deliverable for any purpose other than the contractual purpose or in violation of the relevant statutory requirements or any guidelines issued by the manufacturer; or (b) either (i) modifies the Deliverable or (ii) uses the Deliverable together with any hardware or software not approved by BeamXpert for such purpose, unless, in each case, the Customer has obtained BeamXpert’s prior written consent, and except, in each case, where the foregoing circumstances did not cause the defect.
6.8 Any Warranty for the Deliverables not infringing third party rights shall be limited to the country stipulated in the Contract where the Deliverables shall be used. Absent any express stipulation the Warranty is limited to the country where the Customer has his (principal) place of business. Furthermore, any Warranty Claims for violation of third-party rights shall be excluded unless the Customer enables BeamXpert to conduct the defense alone without any restriction and grants to BeamXpert the necessary powers.
6.9 If third parties assert claims preventing the Customer from exercising the rights of use granted hereby, Customer shall immediately and fully notify BeamXpert in writing. BeamXpert is hereby authorized to bring actions against such third parties in and out of court alone. If the Customer is sued, he may not conduct any legal proceedings – especially acknowledgements and settlements – without BeamXpert’s consent. BeamXpert is obligated to defend the claims at its own expense and to release the Customer from all costs and damages necessarily arising from the defense, provided they are based on the BeamXpert violating any laws.
6.10 The Customer may not derive rights resulting from other breaches of duty, unless he notified BeamXpert of them in writing and set an appropriate grace period for the correction of faults. This does not apply if the type of breach of duty renders a correction of faults unfeasible. In case of damages or compensation of unavailing expenditures, the agreed limitations of liability apply.
6.11 The Deliverables are not for distribution to consumers as defined under statutory law; therefore the Customer does not have a statutory right of recourse.
7.1 BeamXpert shall be liable in damages, whether based on contract or any other legal theory, only to the extent that the damage was caused by gross negligence or willful misconduct imputable to BeamXpert. In the event of death or personal injury, BeamXpert shall be liable also for slight negligence in accordance with statutory law. In addition, BeamXpert shall also be liable in accordance with statutory law for a slightly negligent violation of a fundamental duty under the Contract, but such liability shall be limited to such damages as BeamXpert could have reasonably foreseen at the time of signing of the Contract. Fundamental duties as used herein comprises all duties which must be fulfilled
in order to enable proper consummation of the Contract and the achievement of its purposes; provided that Customer may reasonably expect fulfillment of such duties in view of the content and purposes of the Contract.
7.2 BeamXpert’s liability shall cover neither damage caused by the loss of data to the extent such loss could have been avoided by reasonable (at least daily, alternating) back-up, nor damage caused by use of any Deliverables which could have been prevented by examination of the work products of such Deliverable at regular intervals.
7.3 Any Liability, Warranty Claims or any other respective obligations by BeamXpert shall be excluded for defects that are due to the Customer (a) using the Deliverable (i) for any purpose other than the contractual purpose or in violation of the relevant statutory requirements or any guidelines issued by BeamXpert; or (ii) together with any hardware or software not approved by BeamXpert for such purpose or (b) modifying the Deliverable.
7.4 Except for intent or gross negligence as well as the culpable injury to life, limb or health of a natural person, BeamXpert does not assume any liability for third-party claims, lost profits, business interruption, injuries to reputation, damages to corporate values, wasted expenses or any other consequential or pecuniary losses.
7.5 Where Deliverables are provided free of cost, e.g. demo software, BeamXpert shall be liable for damages only in case of gross negligence or willful misconduct imputable to BeamXpert and fraudulent concealment of defects.
7.6 Mandatory product liability claims pursuant to the Produkthaftungsgesetz (German Product Liability Act) as well as claims arising from possible quality warranties remain unaffected. The same applies to any claims of the Customer under Art. 82 of the General Data Protection Regulation (GDPR).
7.7 Limitations on BeamXpert’s liability agreed in the Contract or these terms and conditions shall apply also to the personal liability of BeamXpert’s officers, employees and agents.
7.8 This Sec. 7 shall not be construed to shift the statutory burden of proof in any way.
8 Limitation Period
8.1 Customer’s remedies for defects shall be subject to a limitation period of twelve months. The statutory rescission right shall also expire upon expiry of the agreed limitation period. The foregoing limitation period shall also apply to claims for damages and reimbursement of expenses based on defects.
8.2 Notwithstanding the foregoing, all remedies based on fraudulent concealment of defects, or Deliverables designed to be incorporated into a building and having caused such building to be defective, or gross negligence, willful misconduct or death or personal injury, caused by negligence or willful misconduct, or guarantees of certain properties, the statutory right of recourse and/or the right to withdraw from the contract based on a breach imputable to BeamXpert other than a defect shall be subject to the applicable statutory limitation periods.
8.3 Repair or replacement of a Deliverable shall not result in a renewal of the limitation period for the Customer’s Warranty Claims with respect to the repaired Deliverable. Notwithstanding the repair or replacement, such Warranty Claims shall be subject to a limitation period equivalent to the remaining limitation period applicable to the original Deliverable, except that such limitation period shall at the earliest expire three months after such repair or replacement or BeamXpert’s refusal to undertake further attempts of repair or replacement.
9.1 The Customer shall hold BeamXpert harmless from all claims asserted by third parties claiming that the Customer has violated statutes or regulations applicable to his business, including, but not limited to, supervisory requirements, statutes of unfair competition or data protection.
10 Confidentiality and Data Protection
10.1 The parties undertake to treat as confidential for an unlimited time all by their nature confidential business and technical information and business secrets obtained during the contract initiation and implementation (“Business Secrets“) of the respective other party and to use such information only for the contractually agreed purposes. BeamXpert’s business secrets shall also include the Deliverables and the services provided under the Contract.
10.2 The Customer shall not make the Deliverables available to employees and third parties, unless it is necessary for the exercise of the contractual right of use. The Customer shall inform all the persons to whom he grants access to the Deliverables of BeamXpert’s rights. Such persons must be advised of the confidentiality hereunder and shall be legally obligated by written agreement to maintain the confidentiality, unless they are on other legal grounds subject to an obligation of confidentiality at least as restrictive as agreed herein.
10.3 The foregoing obligations shall not apply to information that (i) at the time of disclosure by the disclosing party was already public domain or known to the other party; (ii) has become public domain after disclosure by a party without any contribution of the other party; (iii) after disclosure by a party was obtained by the other party lawfully and without limitation of confidentiality or use from a third party; (iv) that has independently been developed by a party without the use of the other party’s Business Secrets; (v) that requires to be disclosed or made public in accordance with the law or an official or judicial order – provided that the receiving party without undue delay informs the disclosing party of and supports the disclosing party in defending itself against such orders and decisions; or (vi) if the party has the permission to use or transfer Business Secrets under compulsory legal provisions or the provisions provided under the Contract.
10.4 The Customer shall enter into an agreement with BeamXpert that complies with the stipulations under Art. 28 of the General Data Protection Regulation (GDPR) prior to granting BeamXpert access to personal data for warranty or support purposes. This shall also be the case in the event that it cannot be ruled out that BeamXpert might gain access to personal data.
11 Final Provisions
Retention of Title: Until payment in full of the purchase price by the Customer, BeamXpert shall retain title to the Deliverables (“Reserved Deliverables”). The Customer shall advise BeamXpert without delay of any attachments regarding such Reserved Deliverables, in particular of any judicial execution measures or any other seizures, as well as of any damage suffered by such Reserved Deliverables. The Customer shall advise the third party of BeamXpert’s right to the Deliverables.
11.1 BeamXpert may subcontract any of its obligations under the Contract, provided that the use of any such subcontractors shall not limit or restrict BeamXpert’s obligations towards the Customer.
11.2 Any notices or declarations which may be declared or made pursuant to the Contract or these Conditions shall be valid only if they are in writing unless explicitly agreed otherwise. Fax or E-Mail do not suffice to observe the written form requirement.
11.3 This Contract includes every agreement of the parties in regard to the contractual object. There are no side agreements. Upon conclusion of the Contract, all prior agreements or statements of the parties in whatever form regarding the contractual object become invalid.
11.4 The Customer shall not be entitled to assign any of its rights under the Contract – except for claims for payment – to any third party without BeamXpert’s prior written consent, which consent shall not be unreasonably withheld. Further restrictions of the Software License Agreement shall apply to the transfer of Deliverables.
11.5 The Customer shall not be entitled to set off any of its claims against claims of BeamXpert, except where the Customer’s claims are undisputed or have been confirmed by a final court judgment. The foregoing shall also apply to any right of retention under civil or commercial law. The foregoing exclusions shall not apply where claim and counterclaim are synallagmatically connected within the meaning of Section 320 of the German Civil Code (BGB), i.e. each obligation must only be fulfilled in consideration of the other. BeamXpert reserves the right to retain or suspend any performance under the Contract where the Customer has not fulfilled a legal obligation to BeamXpert, which may arise from other legal relationships.
11.6 Should one of the provisions of the Contract including these General Terms and Conditions be or become invalid or unenforceable – wholly or partially – the validity and enforceability of the other provisions hereof shall not be affected. The ineffective or unenforceable provision shall be considered to be replaced by that effective and enforceable provision that comes closest to the intention of the invalid condition with respect to its content and the economical sense. The same applies in the event of an omission that requires regulation. In case of an unlawful time period, it shall be replaced by a period admissible by law.
11.7 Place of performance shall be the business location of BeamXpert.
11.8 The Contract and these Conditions shall be subject to the laws of the Federal Republic of Germany with the exception of its choice of law provisions and the UN Convention on the International Sale of Goods (CISG).
11.9 All disputes arising under or in connection with Contract and/or these Conditions shall be submitted exclusively to the disctrict court of Berlin, Germany, (Landgericht Berlin) to the extent that the Customer is a merchant, a legal entity under public law or a special fund under public law. The same shall apply if, at the time the claim is brought, the Customer’s domicile is not in Germany or not known. In any case, BeamXpert reserves the right to take legal action against the Customer in the courts having general personal jurisdiction over the Customer.
11.10 If Customer should breach any of its obligations under the Contract and/or these Gerneral Terms and Conditions, or if such a breach is likely to occur, BeamXpert shall be entitled to seek equitable relief, including specific performance or an injunction, in addition to any other rights or remedies, including monetary damages, provided at law or in equity.
11.11 The prevailing party in any legal action arising out of or relating to the Contract and/or these General Terms and Conditions shall be entitled to an award of its reasonable attorneys’ fees and costs, in addition to any award of damages or other relief, if any, awarded to the prevailing party.
11.12 The English text version of these Conditions is for information purposes only. Only the German version of these Conditions is legally binding.
Agreement on the Provision of the BeamXpertDESIGNER Software and Ancillary Services ("Software License Agreement")
This Software License Agreement between BeamXpert GmbH, Max-Planck-Str. 3, 12489 Berlin, Germany, (hereinafter referred to as "BeamXpert") and the purchaser ("Customer") of the software BeamXpert-DESIGNER including the data contained herein ("Software") governs the conditions and the scope of the use of the Software and the associated user documentation ("Documentation") as well as the conditions for the use of additional services to the provision of the Software.
In addition, BeamXpert's General Terms and Conditions apply.
1 Subject Matter of the Contract
1.2 The source code is not part of the Contract Objects. BeamXpert is not obliged to provide the Source Code to the Customer or to grant access to it.
1.3 The characteristics to be fulfilled by the Contract Objects, namely the functionality, specifications and operating conditions for the Software and the copy protection dongle, result completely and conclusively from the document "Technical Product Description BeamXpertDESIGNER" in the version current at the time of submission of the purchase offer, published on the homepage of BeamXpert ("Specifications").
1.4 BeamXpert shall always supply the Customer with the most current publicly released version of the Software, even if an older version was current when the purchase offer was submitted.
1.5 For the number of licenses agreed in the Purchase Agreement, the Customer shall receive a set of Contract Objects by post as well as a list with activation codes for the copy protection dongles by e-mail to the e-mail address specified in the purchase offer.
1.6 The purchase price and any further fees are specified in the Purchase Agreement.
2 Updates, Support, Installation, Instruction, Training
2.1 Each license acquired entitles the Customer to update the Software free of charge to the versions of the Software publicly released by BeamXpert for a period of twelve months from the date of delivery of the Contract Objects, as long as the Customer complies with the terms and conditions of the Software License Agreement. Insofar as error corrections are contained in updates, this shall be understood as part of the warranty. The right to updates is not transferable, not even in the context of a passing on according to Section 5. The parties may conclude a separate contract regarding further update rights. However, there is no obligation to conclude such a contract.
2.2 If BeamXpert provides updates, they are subject to the terms of this Software License Agreement. With regard to the Software provided earlier, the Customer's rights under this Software License Agreement expire even without BeamXpert's express request to return the Software as soon as the Customer productively uses the new Software. However, BeamXpert grants the Customer a three-month transition period in which the Customer may use both versions of the Software in parallel.
2.3 Each purchased license entitles the Customer to the free use of BeamXpert support for a period of twelve months from delivery of the Contract Objects in the amount of four hours within the scope of the standard support, as long as the Customer complies with the terms of the Software License Agreement. The use of the support within the scope of this contingent will be counted in 15-minute intervals. The right to support is not transferable, not even in the context of a passing on according to Section 5.
2.4 Because of the obligation to comply with the conditions of the Software License Agreement, in particular if the Customer circumvents the copy protection, decompiles or distributes the Software in vi-olation of the Software License Agreement, the Customer shall not be entitled to updates and support. Likewise, the purchaser of the Software shall not be entitled to receive updates and support in case of a passing on of the Software in accordance with Section 5.
2.5 Installation of the Software, instruction and training as well as other additional services including additional support, which go beyond the services agreed here and the statutory warranty, are not subject matter of the contract. The parties may conclude a separate contract in this regard if required. However, there is no obligation to conclude such contracts.
3 Right of Use
3.1 BeamXpert grants the Customer a non-exclusive, temporally unlimited right of use to the Contract Objects, in each case on a single electronic workstation (single-user license), whereby the condition is the use of the activated copy protection dongle. Operating the Software on servers is not permitted. The right of use is bound to the possession of the activated dongle. This means that the Software can only be used simultaneously on as many electronic workstations as the Customer has acquired licenses, using the copy protection dongle supplied for each license which has been activated by the Customer. However, a mere installation of the Software on further workstations without use is permitted.
3.2 Defective copy protection dongles will be replaced in exchange without undue delay during the time specified in the Specifications, but at least five years after purchase, at Customer's request, provided that they have not been tampered and in particular that the identification number has not been removed, changed or made unrecognisable; an identification number that has been removed, changed or made unrecognisable does not preclude an exchange if it can be proven via the electronics that the dongle is an original copy protection dongle. However, before handing over an exchange dongle, BeamXpert is entitled to check the authorization of the Customer and in particular the absence of manipulations, which will happen without undue delay. As far as the defect dongle is under warranty, the replacement including shipping costs will be free for the Customer, otherwise the replacement will be subject to a charge, whereby BeamXpert can demand advance payment.
3.3 Customer unconditionally accepts the necessity of the copy protection dongle as being in accord-ance with the contract. Customer waives all claims that result in the loss of this copy protection. Customer acknowledges that the right to use the Software is bound to the possession of the activated dongle, i.e. Customer is no longer entitled to use the Software if Customer has passed on, destroyed or lost the dongle.
3.4 Customer may only use the Software for the purpose of handling its internal business affairs and those of companies associated with it as defined in Section 15 of the German Stock Companies Act - AktG - ("Group Companies"). In particular, (i) the use of the Software in the context of a computer center operation for third parties or (ii) the temporary provision of the Software (e.g. as Application Service Providing) for other than Group Companies or (iii) the use of the Software for the training of persons who are not employees of the Customer or its Group Companies is only permitted with the prior written consent of BeamXpert. With regard to passing on the Software, the restrictions set forth in Section 5 shall apply additionally.
3.5 The right of use granted shall only apply to the country of destination agreed between the parties in which the Contract Objects are to be used ("Country of Destination"). Unless expressly agreed otherwise, the Country of Destination shall be exclusively the country in which the Customer has its place of business.
3.6 Reproductions of the Software are only permitted to the extent necessary for the contractually agreed use. Customer may make backup copies of the Software in accordance with the rules of technology to the extent necessary. Backup copies on portable data carriers shall be marked as such and marked with the copyright notice of the original data carrier.
3.7 Reproduction or alteration of the Documentation is not permitted. This shall not apply to the extent that the Documentation is integrated into the Software in such a way that the application documentation is automatically duplicated or reworked as a result of actions permitted by the agreements of the parties.
3.8 Customer shall only be entitled to make changes, extensions and other modifications to the Software as defined in Section 69c No. 2 of the German Copyright Act (UrhG) to the extent that the law indispensably permits such. Before Customer itself or through third parties eliminates defects, Customer shall first allow BeamXpert an attempt to eliminate the defect. Customer shall not have any rights of use and exploitation in such processing beyond the rights of use granted under this Software License Agreement. BeamXpert can demand however - against appropriate remuneration - the grant of an exclusive or non-exclusive, geographically and temporally unrestricted right of use with the right of sublicensing.
3.9 Customer shall only be entitled to decompile the software within the limits of Section 69e of the German Copyright Act (UrhG), i.e. essentially only to determine interface information, and only if BeamXpert has not provided the necessary data and/or information to establish interoperability with other hardware and software within a reasonable period of time after written request.
3.10 Any attempt to use the Software without a copy protection dongle or to decompile or perform similar actions outside the granted scope, in particular by circumventing the copy protection, will void Cus-tomer's entitlement to the additional services by BeamXpert that go beyond the legally mandatory granting of rights of use. Possible further legal claims including criminal prosecution remain reserved.
4 Protection of Software and Documentation
4.1 Unless the Customer is expressly granted rights under this Software License Agreement, BeamXpert shall be exclusively entitled to all rights to the Contract Objects (and all copies made by the Customer) - in particular the copyright, the rights to or in inventions as well as technical property rights. This also applies to modifications of the Contract Objects by BeamXpert. The ownership of Customer in the respective data carriers of such copies remains unaffected.
4.2 Customer shall make the Contract Objects (whether or not they have been altered or modified) accessible to third parties only with BeamXpert's prior written consent. The employees of Customer as well as other persons present at Customer's premises for the contractually permitted use of the Contract Objects shall not be deemed third parties. The stipulations on the passing on as set out in Section 5 shall remain unaffected.
4.3 Customer shall not be permitted to modify or remove any copyright notices, marks and/or control numbers or symbols of BeamXpert or of manufacturers of optical components mentioned in the component database of the Software. If Customer modifies or edits Contract Objects, these notes and marks shall be incorporated into the modified version of the Contract Objects.
4.4 If Customer hands over data carriers, storage devices or other hardware on which Contract Objects (in whole or in part, unchanged or modified) are stored (i) to third parties without passing them on in accordance with Section 5 or (ii) gives up direct possession thereof, Customer shall ensure that the stored Contract Objects are deleted completely and permanently beforehand.
5 Passing on
5.1 Customer may only leave or allow a third party access to the Contract Objects as a whole and under complete and final abandonment of its own use of the Contract Objects. Any temporary or partial fee-based provision of use to third parties is prohibited, regardless of whether the Contract Objects are provided in physical or non-physical form. The same applies to gratuitous cession.
5.2 The passing on of individual Contract Objects from a discounted order of several licenses ("Collective Order") is not permitted. If Customer passes on individual Contract Objects from a discounted Collective Order, Customer undertakes to subsequently pay BeamXpert the difference between the non-discounted price and the discounted price for all Contract Objects of the Collective Order.
5.4 In the event of a passing on, Customer undertakes to pass on the Contract Objects exclusively to third parties if use of the Software outside the country of destination is excluded (prohibition of export).
6 Deviating Regulations for Academic Licenses
6.1 For Academic Licenses, the following provisions shall take precedence over Sections 1 to 5:
6.2 Academic Licenses may only be used for non-commercial purposes by state or state-recognised universities and non-commercial research institutions ("Academic Institutions"). Use for commercial purposes is not permitted.
6.3 Even under the conditions of Section 5, Academic Licenses may only be passed on to Academic Institutions.
7 Deviating Regulations for Demo Versions
7.1 For demo versions, the following provisions shall take precedence over Sections 1 to 5:
7.2 Demo versions may only be used to decide whether to purchase the Software. Demo versions shall only be made available for test use for a limited period of time; the exact maximum term of use (usually calculated from installation, irrespective of actual use) shall result from the description.
7.3 Demo versions do not contain the complete range of functions, in particular the storage of data is not possible. Demo versions are not entitled to update and do not contain any additional services such as support.
7.4 No dongle is required to run demo versions but software copy protection is included. Demo versions may only be installed on one computer at a time. A transfer to another computer is not permitted but a new demo version must be requested. Demo versions may not be passed on to third parties.
Last updated: December 2018