Standard Business Conditions
§ 1 - Scope of Application
The following General Business Conditions apply to all deliveries and services provided for customers by Omikron GmbH. Any conflicting General Business Conditions of the customer (purchase conditions, etc.) do not apply.
If no other agreements have been made, Omikron provides the customer with a non-exclusive, non-transferrable right to use the software according to the following conditions. In the following, this usage right is also referred to as a “License”.
§ 2 - Extent of Use
- If no other agreements have been made, each respective license applies for use only on a single (local) computer system as an individual workstation. Usage in networks or via access from other computers to a (server) system on which the software is installed is permitted only upon prior approval from Omikron.
- If Omikron delivers software as components for a final product, which are then shipped to end users together with other components according to the agreement, then the existing rules apply accordingly to this final product.
- The user guarantees to retain all identifications and notations that serve to identify the software without any alterations, including captions, labels, trademarks, and copyright notices. In particular, an indication is to be made to Omikron’s copyright for each and every use of the software in the scope of other (software) applications, unless another agreement has been made explicitly.
- The user guarantees not to permit any access by third parties to the originals or copies of the delivered programs and materials without express written consent from Omikron. Employees or other persons do not count as third parties, as long as they are with the user for the purpose of contractual use of the delivered software. Any contractual transfer to unknown third parties requires an explicit contractual specification.
§ 3 - Legal Contract Form
- The “BGB” in the following means the “Bundesgesetzbuch”, the official code of law in Germany.
- In as much as Omikron allows the customer a time-limited right of use, the rules in the BGB concerning rental agreements (§ 535 ff. BGB) apply supplementally to these General Business Conditions. If the customer continues use of the software beyond the contractual end of the rental relationship, the contractual fee or an otherwise appropriate sum must be paid as usage reparations for the period of use. An extension of the rental relationship through continued use is explicitly forbidden for these cases.
- If the software is provided for unlimited use, the rules in the BGB concerning purchase contracts (§ 433 ff. BGB) apply according to the measures of the following special regulations. The application of UN purchasing rights is prohibited.
- In as much as Omikron provides software changes or other programming services at the customer’s request, including adjustments to other software, the regulations for work contracts (§ 631 ff. BGB) apply. Unless other explicit agreements have been made, a formal acceptance process for these programming services will not take place. Instead, the customer’s acceptance becomes effective as of its being put into service by the customer. The customer’s rights to the programming services performed are non-exclusive; Omikron is free to use the results elsewhere, unless a special agreement has been made.
§ 4 - Property Rights; Protective Clauses
- The customer has the right to use the software only in the scope indicated.
- Omikron retains complete rights to the delivered software until payment has been made in full, in particular the rights of possession and copyright. If the customer does not fulfil their contractual obligations despite notification, in particular the obligation to pay fees, Omikron may forbid continued use of the software. Omikron has the same right if conditions about the scope of use or protection of the delivered software materials are significantly violated.
- In case of a usage prohibition under the previous paragraph, the customer is required to return all of the software provided and all of its components. The customer is (still) required to pay an appropriate fee for the period that the software was used, normally the standard rental price.
- In the case of a business transfer (or takeover), bankruptcy, or the dissolution of the customer’s company, Omikron is required to permit continued use of the software only when the contractual obligations are fulfilled by the rightful inheritor.
§ 5 - Guarantees
- The parties agree that it is not possible to develop software that runs free of errors for all (possible) application conditions. In particular, Omikron cannot guarantee that a delivered search program or similarity search will produce or will not produce specific results.
- Omikron guarantees that the software provided will make the described program features available. The guarantee period lasts two years.
- If significant defects become apparent within the guarantee period, so that the usability of the software is impaired, then Omikron has the right and obligation to repair the problems free of charge. If Omikron is unable to repair or work around the defect within a reasonable time period, so that the customer’s contractual use of the software is possible, then the customer may demand a payment reduction, or return the software. In this case the customer must only pay an appropriate usage fee corresponding to the usability of the software for its purpose.
- Omikron will correct other defects and errors in the software free of charge within the guarantee period, so long as this is possible with justifiable effort. This applies in particular to errors that occur in connection with other programs. If these errors cannot be corrected in an appropriate time period, the customer has the right to a reduction of payments.
- Omikron is liable for subsequent damages, lost profits, or indirect damages only in the case of intentional or gross negligence, or in the case of promised, but missing characteristics.
- Omikron guarantees that the contractual use of the software does not violate the copyright or business trademarks of any third party. If claims are made upon the customer from a third party because of alleged violations, Omikron releases the customer from any claims for damages, so long as the third-party claims have been reported promptly to Omikron, and the customer takes steps against the third party exclusively according to consultations with Omikron.
§ 6 - Final Terms
- All contractual relationships are governed exclusively by the laws of Germany.
- If the customer should have “purchaser” status for Germany (“Kaufmann”), the parties agree upon Pforzheim, Germany as the location of fulfilment and legal jurisdiction for all deliveries and services specified in the contract.
- In the event that any part of these conditions is or becomes void or unenforceable, the remaining portions of the conditions are not affected and remain in force. The contracting parties hereby agree to replace any such invalid portion with a legally admissible regulation, so as to maintain the original business intent of the invalid portion as much as possible.