Supplementary Terms and Conditions for Software

The Supplementary Terms and Conditions of Delivery for Software apply exclusively to the transfer of individual and standard software (hereinafter referred to as ‘software’), whether for a limited or unlimited period, including as part of or in connection with a delivery of the associated target hardware. However, if a breach of duty or a disruption in performance is not caused by the delivery of the software itself, or if the Supplementary Terms and Conditions for Software do not contain any provisions, the General Terms and Conditions of Sale and Delivery of Pfeffermond GmbH (hereinafter referred to as ‘Pfeffermond’) shall apply in the version valid at the time of conclusion of the contract.

1. Use of the software and accompanying documentation
   1. Software within the meaning of these Supplementary Terms and Conditions of Delivery for Software is individual or standard software programmed by Pfeffermond (e.g. operating, application, configuration programmes), including as part of or in connection with a delivery of the associated target hardware, which is delivered as part of the delivery service together with the hardware products.
   2. Die Überlassung einer Dokumentation bedarf einer gesonderten schriftlichen Vereinbarung. Wenn eine Dokumentation überlassen wird, so umfasst der Begriff „Software“ im Folgenden auch die Dokumentation.
   3. Software supplied by Pfeffermond is protected by copyright. All copyright protection and exploitation rights are held exclusively by Pfeffermond.
   4. Upon payment of the consideration, the customer acquires a single licence, i.e. Pfeffermond grants the customer the non-exclusive right to use the software on only one device (target hardware) or at one workstation at a time, unless otherwise agreed in writing.
   5. This right of use is limited to the agreed period; in the absence of such an agreement, this right of use is unlimited in time.
   6. The customer may transfer the software from one device (target hardware) or workstation to another device (target hardware) or workstation, provided that the software can only be used at any given time in accordance with the number of licences purchased from Pfeffermond.
   7. Insofar as software is provided to the customer for which Pfeffermond only has a derived right of use (hereinafter referred to as ‘third-party software’), the terms of use agreed between Pfeffermond and its licensor shall apply in addition to and take precedence over the provisions of this Section 1. Pfeffermond shall indicate the existence and terms of use of any third-party software provided in the earnings documents and make these available to the customer. In the event of a breach of these terms of use by the customer, both Pfeffermond and its licensor shall be entitled to assert the resulting claims and rights in their own name.
      
   8. Pfeffermond grants the customer the right – revocable for important reasons – to transfer the rights of use granted to him to third parties, thereby relinquishing his own use. If the software was purchased together with a device, the software may only be passed on to third parties for use together with this device. The customer must ensure that the third party is not granted any further rights of use to the software than those to which the customer is entitled under these terms of delivery and that the third party is at least subject to the obligations arising from these terms of delivery with regard to the software. In the event of a transfer of a right of use to a third party, the customer is obliged to hand over to the third party or delete all copies delivered to the customer or produced by the customer.
   9. The customer is not entitled to grant sub-licences.
   10. The customer is not entitled to modify, translate, reverse engineer, disassemble, create derivative works based on the software, or extract parts of it. Decompilation is only permitted to the customer within the scope of Section 69e of the German Copyright Act (UrhG).
   11. The customer shall commission the software themselves. Pfeffermond shall support the customer in this process upon request and for a separate fee.
   12. Provided that the software is not copy-protected, the customer is permitted to make one copy, which the customer may use exclusively for backup purposes. Any copyright notice contained in the software may not be removed.
   13. The software is provided exclusively in machine-readable form (‘object code’). The provision of the source code is excluded.
       
   14. Bei Überlassung von Software mittels elektronischer Kommunikationsmedien (z.B. Internet) erfolgt der Gefahrenübergang, soweit die Software den Bereich (z.B. beim Download) verlässt, auf den Pfeffermond Einfluss hat.
2. Software defects
   1. The customer acknowledges that it is not possible to develop software in such a way that it works without errors in all applications and combinations. The scope of services and functions of software products is therefore determined by the product descriptions/specific terms of use valid at the time of conclusion of the contract. Only deviations from the product description that have been proven by the customer and can be reproduced shall be considered material defects in the software. A material defect shall not be deemed to exist if it does not occur in the version of the software last provided to the customer and its use is reasonable for the customer.
   2. Pfeffermond does not guarantee that the delivered software is compatible with the data processing environment used by the customer, in particular with the software and hardware products used by the customer.
   3. The customer must take all reasonable measures to prevent or limit damage caused by faulty software. Complaints must be made immediately in writing, describing the defect as precisely as possible and providing details of the relevant data processing environment. The customer shall provide Pfeffermond with verifiable documentation of the error message, including the nature and occurrence of deviations from the service description, and shall cooperate in isolating errors. The customer shall ensure that programmes and data entered and to be processed are backed up regularly. If the customer culpably violates this obligation, Pfeffermond shall not be liable for any consequences arising therefrom, in particular for the recovery of lost or damaged data or programmes. This does not imply a change in the burden of proof.
   4. Claims for defects shall become time-barred after 12 months. The limitation period for material defects shall commence upon commissioning or installation of the software, but in any case no later than 6 months after delivery or acceptance.
   5. If errors occur in the software supplied by Pfeffermond during this period which significantly impair its value or suitability, Pfeffermond shall investigate these errors and, insofar as they constitute defects covered by the warranty, remedy them at its own discretion by eliminating the defect or supplying defect-free software. Program errors shall be remedied either by showing the customer a reasonable workaround for the error or by delivering a new version (update). Alternatively, Pfeffermond is free to provide a new version (upgrade). If the customer refuses access to the licence material for the above purposes or does not integrate the updates or upgrades provided into the user environment, the subsequent performance shall not be deemed to have failed. If, in the event of a warranty claim, the defect cannot be remedied by replacement delivery after multiple attempts, the customer may demand a proportionate reduction in the purchase price or the cancellation of the contract.
   6. Ansprüche des Kunden wegen der zum Zwecke der Fehlerbeseitigung erforderlichen Aufwendungen, insbesondere Transport-, Wege-, Arbeits-, und Materialkosten sind ausgeschlossen, soweit die Aufwendungen sich erhöhen, weil die Software an einen anderen Ort als die Niederlassung des Kunden verbracht worden ist, es sei denn, die Verbringung entspricht ihrem bestimmungsgemäßen Gebrauch.
   7. Weitergehende Ansprüche, insbesondere Ansprüche auf Ersatz von Schäden, die nicht an der Software selbst entstanden sind, wie z. B. Verlust oder fehlerhafte Verarbeitung von Daten, sind in dem unter Ziffer 4 genannten Umfang ausgeschlossen.
3. Legal defects
   Unless otherwise agreed, Pfeffermond is obliged to ensure that the software is free of third-party industrial property rights and copyrights (hereinafter referred to as ‘property rights’) only in the country of performance. If a third party asserts claims against the customer due to the infringement of property rights by the delivery of the software provided by Pfeffermond and used in accordance with the contract, Pfeffermond shall be liable to the customer for software provided for an indefinite period within the limitation periods specified in Section 2.4 as follows:
   1. Pfeffermond may, at its discretion and expense, either obtain a right of use for the software in question, modify it so that no property right is infringed, or replace it. In this respect, clause 2 shall apply mutatis mutandis. Pfeffermond’s obligation to pay damages shall be governed by clause 4.
   2. The aforementioned obligations of Pfeffermond shall only apply if the customer immediately informs Pfeffermond in writing of the claims asserted by the third party, does not acknowledge any infringement, and Pfeffermond reserves all rights to defend itself and settle the matter.
   3. If the customer discontinues use of the software for reasons of damage mitigation or other important reasons, they are obliged to inform the third party that the discontinuation of use does not constitute an acknowledgement of an infringement of property rights.
   4. Claims by the customer are excluded if he is responsible for the infringement of property rights or if the infringement of property rights is caused by special specifications of the customer, by an application that Pfeffermond could not have foreseen, or by the fact that the software has been modified by the customer or used in conjunction with hardware not supplied by Pfeffermond.
   5. In the event of other legal defects, the provisions of Section 2 shall apply accordingly.
4. Liability
   Unless otherwise specified in these terms and conditions, Pfeffermond shall only be liable for damages and reimbursement of futile expenses (hereinafter referred to as ‘damages’) due to breach of contractual or non-contractual obligations in cases of intent or gross negligence on the part of Pfeffermond’s legal representatives or vicarious agents, in cases of injury to life, limb or health, in the event of fraudulent conduct, due to the assumption of a guarantee or a procurement risk, in the absence of a warranted characteristic, in the event of a breach of essential contractual obligations, due to mandatory liability under the Product Liability Act or other mandatory liability. However, the amount of the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for this type of contract, unless there is intent or gross negligence on the part of Pfeffermond’s legal representatives or vicarious agents, or liability exists due to injury to life, limb or health or the assumption of a guarantee or a procurement risk. Essential contractual obligations are those whose fulfilment characterises the contract and on which the customer may rely. The above provisions do not imply a change in the burden of proof to the detriment of the customer.
5. Termination
   The right to use the software shall automatically terminate without notice of termination if the customer breaches a material provision of these contractual terms and conditions.
6. Export restrictions
   The export of the software and documentation may be subject to authorisation, e.g. due to its nature or intended use. The customer shall be liable for any violations of export control regulations if they use the software outside the country in which the customer’s registered office specified in the delivery address is located, and shall indemnify Pfeffermond against any claims by third parties arising from the violation of such export control regulations.