General Terms and License Conditions of flexis AG - Stuttgart
 
for implementations of project contracts for the creation of software systems or work on software systems or delivery of software components of flexis AG, Schockenriedstr. 46, 70565 Stuttgart.
A
These terms and conditions apply to all rights and duties of flexis AG and the customer in connection with this contract. The application of other general conditions of sale is excluded.
B
Any procurement terms, purchasing terms, and other general terms and conditions of the customer are excluded even if referenced in its order.

1 Customer’s right of use
1.1
This agreement grants the customer the right to use the licensed products for internal use in a network in the defined business unit where the number of users is no more than the maximum number of users stated in the „License Certificate“. This right is not exclusive and cannot be used to grant sub-licenses.
1.2
The intended use is limited to the input of instructions and data by loading the licensed product from the storage medium into working memory of devices connected to the network up to the number specified in the "License Certificate" for the purpose of subsequent processing.
1.3
The customer may neither rent, lease, loan, or reproduce a licensed product to a third party nor documentation entrusted to him nor otherwise deliver for temporary use or let use for the purposes of third parties.
1.4
The customer is permitted to make backup copies in such quantities as required for archiving and backup purposes. In addition, copying of licensed products is only permitted for purposes of the intended use pursuant to Section 1.2 and also without prejudice to Section 1.5 of this agreement and only for the purpose of error correction. The latter, however, only if flexis AG does not offer this to the customer within an acceptable time frame or under acceptable conditions despite the customer’s written request, or, if the customer accepts such an offer and flexis AG does not perform it within an acceptable grace period set by the customer and combined with a warning of refusal.
When producing such copies, flexis AG has to be notified of the number of copies, the creation date, repository, and location as well as the storage medium. Moreover, the scope of the right to use is limited to the General Terms and Conditions herein and the statutory requirements, particularly §§ 69 a – 69 g, § 137 d of the German Copyright Act (UrhG), § 1 UWG, if the restrictions are not regulated otherwise.
1.5
The customer receives no rights to the source code of a licensed product.

2 Customer obligations
2.1
Unless otherwise agreed in writing, the location of a licensed product is the address stated on the front of the "License Certificate". The customer has to inform flexis AG in advance in writing about each location change of a licensed product. flexis AG can object to it, if it is contrary to applicable export control regulations.
2.2
The customer is aware that the license fee depends on the number of users of the network on which the licensed product is operated, as defined in the "License Certificate" as long as the number of users is set in the license certificate. Any expansion of the number of users or modules therefore requires an amendment of the "License Certificate" and an adjustment of the agreed license fee. The customer will inform flexis AG promptly prior to a possible expansion of the number of users. If such a notification is not forthcoming, the customer owes a penalty of three times the license fee per workstation for each user over the agreed number of users in the network on which a licensed product is operated and according to the applicable standard price list. The same applies to any other copy of a licensed product, generated beyond its intended use.
2.3
The customer has to grant flexis AG access to its premises during standard operating hours to ensure compliance with the license terms hereby agreed upon. In addition, the customer has to provide flexis AG with information, personnel, test data, hardware and remote data transfer options.
2.4
The customer is obligated to not recruit employees of flexis AG or a flexis AG affiliate of this project either themselves or through an affiliated company during the duration of this contract and for one year thereafter

3 Proprietorship
3.1
All rights to the Licensed Product, except for useage rights granted specifically to the customer hereafter remain with flexis AG.
3.2
The customer is obligated to reproduce on all copies of the licensed product made by him the copyright notice and any other proprietary notices reflected on the customer’s copy of the licensed product.

4 Installation
Given the technical and organizational complexity of the software, it is usually installed by flexis AG. The installation is subject to a charge. flexis AG assumes no liability for software that they have not installed themselves.

5 Delivery
If the customer wants to install the licensed program himself, EXW Stuttgart, Incoterms ® 2010 applies.

6 License fees and payment terms
6.1
The license fees are exclusive of VAT, which will be charged separately by flexis AG according to the applicable statutory rate. Reasonable travel and accomodation expenses as well as deductible expenses, which arise in connection with this agreement, shall be covered by the customer separately.
6.2
The license fees are net due within 30 days of receipt of invoice.
6.3
flexis AG has the right to suspend further services wholly or partially until any bills oustanding arising from contractual relations between the parties are duly paid or adequate security has been granted. flexis AG has the right to make deliveries only only after prepayment, if there are any indications that the financial situation of the customer has deteriorated considerably since signing of this contract, more particularly, if the customer did not make payments that are due to flexis AG.
6.4
The customer may only offset undisputed or legally established claims. He cannot assign claims to any third party.

7 Warranties („Gewährleistung“)
7.1
flexis AG warrants that for a period of 1 year after delivery the licensed product will fulfill the functional features and specifications outlined in the documentation. flexis AG guarantees that a licensed product always runs error- and interruption free. Technical data, product brochures, advertising claims and quality descriptions do not represent guaranteed properties, unless they are confirmed as such in writing.
7.2
In the event of a defect as defined in section 7.1 the customer shall immediately notify flexis AG in writing and enable them with all required information to reproduce the alleged error. In the event of such a proper error message flexis AG will try within a reasonable time frame to fix or repair the error by either rectifying it or by providing a new version of the licensed product or a workaround. As long as defects rectification efforts on the part of flexis AG are not definitive failures, customer claims to an adequate license fee reduction or contract termination in relation to the respective licensed product are excluded.
7.3
Warranty claims of the customer are excluded, if the licensed product has been processed by the customer, modified, extended or combined with other programs that have not been approved in writing by flexis AG
7.4
Further, no warranty exists for a licensed product, which is improperly used, maintained or installed, unless the customer can prove that these circumstances are not the cause of the defect.
7.5
Additional claims in the case of a deficiency of the licensed product do not exist.

8 Conflicting rights of third parties
8.1
flexis AG will inform the customer immediately upon it having knowledge of property rights of third parties who may be injured by the use of project and development results. flexis AG and the customer will jointly decide whether and in what way to consider property rights of third parties during the project’s execution.
8.2
In the event of a legally binding payment obligation of the customer, which is based on a breach of property rights, flexis AG can provide at its discretion, the required licenses or submit an amended development product or parts thereof which eliminate the alleged violation. In addition, the customer is not entitled to any other claims for breach of property rights.

9 Confidentiality
9.1
Both parties will treat confidential information, especially all confidential technical information and trade secrets of the other party, which are marked confidential, strictly confidential, and will not make it available to third parties and secure it adequately against access by unauthorized persons. None of the parties will use confidential information or trade secrets of the other party for any purpose other than to the extent necessary in implementing the pursued contract. Employees of the parties, which are assigned to the execution of this contract, shall not be deemed a third party for the purposes of this provision, if they fulfill their duties and require access to confidential information or trade secrets. The respective parties, however, have to impose confidentiality obligations on those employees. Both parties are responsible for compliance with the hereafter existing confidentiality obligations by their respective employees and agents.
9.2
The employees or agents of both parties assigned to this contract implementation are also contractually bound to comply with privacy protection laws before beginning their work. The relevant agreements have to be shown to the other party upon request

10 Publications, Advertising
10.1
The customer is available as a reference for the licensed software. This permission includes permission for flexis AG to mention the customer as a customer of flexis AG. In addition, the availability of customers as a reference includes
i. customer consent to, company visits by flexis AG with customers or potential customers of flexis AG at mutually agreed times
ii. the consent to be interviewed for a news article, intended for publication and
iii. permission for flexis AG to use the customer's name in promotional materials after prior
consultation. The coordination of the above mentioned activities will be carried out by flexis AG or their public relations firm.
The customer has the right to refuse reference visits, interviews and site visits for special reasons.
10.2
Publications of flexis AG concerning the intended use shall be cleared with the customer in advance.
10.3
The customer is entitled, after prior consultation with flexis AG to publish the project and development results, making note of the author and the contact person involved.
10.4
The customer may use the results for purposes of advertising, making note of flexis AG only with their express consent.

11 Liability
The liability of flexis AG in connection with this contract is - for whatever reasons - excluded.
This limitation shall not apply if the damage was caused by intentional and / or gross negligence. She also does not apply to claims under the Product Liability Act and bodily injury to health or loss of life of the customer that have to be assigned to flexis. As far as flexis AG negligently violated a contractual obligation, the obligation to pay compensation is limited to the typical damage, which of the parties with a maximum amount of € 200.000, - is estimated. The customer has the option to increase the maximum liability by an additional contract.

12 General Provisions
12.1
Changes and additions to contracts, including a waiver of this written form requirement, reminders and deadlines must be in writing.
12.2
None of the customer’s rights arising out of this contract may be assigned without prior written consent of flexis AG. flexis may subcontract any services under this contract incumbent parties.
12.3
If any provision is found to be wholly or partially ineffective, this shall not affect the validity of the remaining provisions of the contract. In place of the ineffective regulation becomes a legally valid provision that replaces the ineffective regulation in order to achieve the original economic intention. The same applies to the case of a contractual gap.
12.4 This Agreement shall for all purposes be construed interpreted, and enforced under the laws of Germany. The validity of the uniform UN Sales Convention (Convention on Contracts for the International Sale of Goods, UNCITRAL Convention) will be excluded.
12.5
The parties are held in all disputes arising out of or in connection with this contract, contract expansions or additions they cannot sort out among themselves, to ask the mediation of the German Society for Law and computer science (Schlichtungsstelle der Deutschen Gesellschaft für Recht und Informatik e.V.) Melibocusstr. 52a, 60528 Frankfurt am Main, Tel: +49 (0)69-66900720, Fax +49 (0)69-66900710 under the exclusion of ordinary courts of law to settle the dispute after the mediation properly in whole or in part, temporarily or permanently.
To facilitate the mediation the parties mutually waive the statute of limitations for all claims arising from the disputed facts of life from arbitration request until one month after the end of the mediation. The waiver results in a suspension of the limitation.
The parties undertake to always stand up, the defense of the arbitration agreement against legal action.
12.6
Place of performance for any Services of flexis AG is Stuttgart. Place of performance for payments by the customer is Stuttgart.