License Agreement

General Terms and Conditions of License With Respect to the Sale of Computer
Software
1. Fundamentals
1.1 By executing the Basic Contract (as hereinafter defined), these General Terms
and Conditions of License ("GTCL") are agreed to between Licensor and Licensee
(both as hereinafter defined). As used in this GTCL, the term "Basic Contract"
means the contractual relationship with Baum�ller underlying the delivery of the
Software (as hereinafter defined). These GTCL shall become an integral part of the
Basic Contract.
1.2 Licensor is Baum�ller N�rnberg GmbH and Licensee is the party concluding the
Basic Contract with Licensor.
1.3 As used in these GTCL, the term "Software" means any machine-readable
material, documentation and other information media. Licensor puts on notice, that
at the current state of technology it is impossible to prepare computer software in
such a way, that it is working free from defects in all application or combination.
2. License to Use
2.1 Licensor grants to Licensee the non-exclusive and non-transferable right to
use the Software in accordance with the terms and time limits set forth within the
contractual relationship underlying the delivery of the Software.
2.2 During the term of this contract the Licensee is entitled to use the Software
only in one single computer and only at one site. Licensee may use the Software on
another computer, provided that he first ceases to use such Software on the
original computer ("Workplace-License").
2.3 Licensee may copy the Software only in the case and to the extent that such
copying is necessary for the designated use and/or for the creation of one backup
copy of the Software. Any other reproduction of the Software, including but not
limited to the printing of the program code and/or the documentation, is allowed
only after first having obtained the prior consent of Licensor.
2.4 Any revision or editing of the Software, particularly, without limitation, by
altering or translating it or combining the Software with other programs, is
allowed only after first having obtained the prior written consent of Licensor or
after having acquired the source code from Licensor.
2.5 Any proprietary notices of Licensor on or in the Software may not be removed
and must be reproduced also on or in any copy of the Software and on or in any
revised versions of the Software as well as on the corresponding data media.
2.6 The grant by Licensee of any rights to use the Software, particularly of any
sub-licenses and even the temporarily granting of any other rights whatsoever to
any third party, without the prior written consent of Licensor is prohibited.
2.7 The contractor agrees to keep records documenting the Software, including its
respective version; the place, where such Software is located; and the number of
copies created. Licensee shall make such records available to Licensor on demand.
3. Reservation of Rights/Confidentiality
3.1 Any and all rights in the Software and in any revised versions, including but
not limited to any title, industrial property rights and copyrights, are the
property of Licensor. Any copies of the Software created by Licensee become the
property of Licensor.
3.2 The Software contains confidential informations as well as trade and business
secrets of Licensor. Licensee agrees to keep confidential the Software including
any backup copies thereof, in whole or any part thereof, and to take reasonable
precautions to ensure that such Software and backup copies will not be disclosed to
any third party in any case. The obligations of Licensee provided for in this sub-
section shall remain in force indefinitely and shall survive any termination of the
contract pursuant to section 9 hereof.
4. Delivery of the Software
4.1 The Software shall be delivered in a machine-readable form. The delivery of
the Software (i.e. program medium and documentation) shall be effected ex warehouse
of Licensor. If no program medium is handed over, the transmission/transfer of the
program into the computer system of Licensee shall be deemed as the delivery of the
Software.Any support services rendered by Licensor, particularly in connection with
the installation of the Software on the computer system of Licensee, shall be
agreed upon separately.
4.2 Benefit and risk shall pass to Licensee at the time of delivery of the
Software.
5. Maintenance of the Programs
5.1 Licensor assumes no obligation to maintain the programs.
5.2 If Licensee through respective statements has agreed to accept improved
Software programs, then any new versions of the Software will be offered and
delivered to Licensee as follows:
- Licensee will receive from Licensor information material as well as the new
version of the Software (i.e. data medium and documentation) together with a
calculation of the royalties in accordance with the then current General Terms and
Conditions of License (GTCL).
- Licensee undertakes, within 30 days after receipt of the new Software either
a) to return the data media and the documentation unopened; or
b) to remit the royalties to Licensor.
6. Warranty
6.1 Licensor warrants, that the Software confirms to the specifications contained
in the documentation and that it is produced with reasonable care and professional
knowledge. The specifications and any statements with respect to the Software do
not constitute any representation unless and to the extent that Licensor has
confirmed in writing such specifications or other statements to operate as a
representation. The warranty period is 6 months from delivery ("Warranty Period").
Any warranty claims made by Licensee shall lapse one month after Licensor having
rejected the respective notice of defect, if Licensee does not object.
6.2 Licensee undertakes to promptly give notice to Licensor after becoming aware
of any defect, which rescinds or diminishes the use of the Software or its fitness
for the contractually contemplated purposes. Licensee is not entitled to modify the
Software himself; Section 6.6 below applies in this respect.
6.3 Licensor undertakes to remedy within reasonable time any defects in the
Software claimed by Licensee during the Warranty Period, which are reproducible,
for which Licensor is answerable, and which are described and documented in the
notice of defect. The remedy may be effected by delivery of replacement Software.
If, despite of the delivery of a replacement, the contractual use of the Software
substantially does not become possible, Licensee shall at his option be entitled to
claim rescission of the contract or reduction in price. Any further warranties and
any other claims whatsoever are excluded.
6.4 No warranty is applicable in the case of defects arising through normal wear
and tear, incorrect or negligent handling, excessive load, inappropriate use,
inadequate equipment and materials, or through any use deviating from contractually
contemplated operating conditions. The warranty further ceases to apply, if
Licensee or any third party makes modifications to, installs, maintains, repairs,
or uses the software in an inappropriate manner, except that Licensee proves that
such circumstances are not the cause of the claimed defect.
6.5 Licensee shall inspect the Software immediately upon delivery and shall
promptly give notice of any defects, if any, at the latest within 7 days after
receipt of the delivery. However, hidden defects, if any, shall be noticed by
Licensee to Licensor within 6 months from the date of delivery at the latest. If
Licensee does not notice any defect within the aforementioned periods, then the
subjects of contract/Software shall be deemed to be accepted.
6.6 Licensee shall provide Baum�ller with the possibility to conduct a reasonable
examination of the noticed defects and shall make available to Baum�ller on demand
all necessary technical informations, including without limitation any inspection
reports and test reports. If Licensee fails to provide such possibility or to make
available such informations as aforesaid, then it shall be deemed that no notice of
defect has been given and the Software shall be deemed accepted by Licensee. If
Licensee makes any modifications to the Software or if he interferes with the same
in any other manner whatsoever, then any and all rights of Licensee to demand the
removal of defects shall cease.
6.7 Should Licensor's examination of a notice of defect show, that the claim is
not covered by Licensor's warranty, then Licensor shall charge Licensee with the
costs of the examination and removal of defects at the then current hourly rates of
BAUM�LLER. Any warranty or liability of Licensor arising out of Licensor's
aforementioned actions shall be governed by these Terms and Conditions of License,
too.
7. Liability
7.1 The liability of Licensor shall be limited to the foreseeable material
damages in accordance with the contractually agreed purpose for which the Software
is to be used. In terms of the preceding sentence, a material damage which exceeds
the value of a processed object shall not be a foreseeable material damage.The
amount of liability for material damages shall be limited to DEM 50,000.00 per
occurrence and to a maximum of 3 occurrences in any one year. Licensor shall not be
liable for financial losses and other subsequent losses of any kind
whatsoever.Licensor shall further be liable for any personal injury and property
damages caused by the wilful conduct or gross negligent action of Licensor or any
of Licensor's employees or vicarious agents.
7.2 The risk of loss or damage to data or data media, as the case may be, and the
cost of replacement of lost data shall be borne by Licensee. Licensee is expressly
advised on the necessity of adequate data backup procedures and Licensee agrees to
keep appropriate backup copies.The above liability provisions govern all liability
claims, irrespective of the legal grounds on which such claims are based.
8. Compensation
8.1 In consideration of the license granted by Licensor to Licensee, Licensee
shall pay the agreed lump sum royalty.
8.2 Any support services which are not covered by the Basic Contract, shall be
agreed upon separately (maintenance or service contract).
9. Termination of Contract
9.1 Each of the parties may terminate the contractual relationship by giving at
least 3 months' notice of termination to become effective at the end of any
calendar year.
9.2 Licensor is entitled to terminate the contractual relationship without
notice, if:
- Licensee fails to fulfil his contractual obligations and does not remedy such
failure within one month after receipt of a written notice from Licensor to do so;
or
- Any composition or bankruptcy proceeding is instituted over the assets of
Licensee.
9.3 Upon termination of the contract Licensee shall forthwith cease to use the
Software. Licensee shall return to Licensor all materials received, including but
not limited to program media and documentation, together with all copies and
revisions thereof within 2 weeks after the end of the contract and Licensee shall
represent to Licensor, that the Software and any copies or revisions thereof have
been erased from the computer system of Licensee or have been destroyed, as the
case may be. Licensee shall furnish Baum�ller on demand with adequate proof of
Licensee's compliance with these provisions.
10. Final Provisions
10.1 No modifications, alterations, amendments, or additions to these Terms and
Conditions are valid unless reduced to writing. There are no oral supplements to
this agreement.
10.2 All the rights and obligations contained in this contract are governed by and
shall be construed in accordance with the laws of the Federal Republic of Germany.
The provisions of the United Nations Convention on Contracts for the International
Sale of Goods shall not apply. Place of performance for this contract shall be the
place of registered office of Licensor. Any disputes arising out of or in
connection with the implementation of this contract, including without limitation
any liabilities on bills of exchange or cheques, shall be referred to the courts of
competent jurisdiction at the place of registered office of Licensor.
10.3 If any provision of these General Terms and Conditions of License shall be
invalid for any reason, or if there should be a loophole in these provisions, then
such invalidity or such loophole shall not affect the validity of the remaining
provisions hereof. Instead, the parties hereto undertake to replace the invalid or
missing provision with a suitable new provision, which corresponds as close as
possible with the economic intent of the contemplated provision. The same applies
in the case of existence of a loophole.