1. Subject matter
1.1. The following terms of business settle licensing, usage and maintenance of KS software, whereupon – unless specified in detail herein – detailed identification, quantity, remuneration, usage environment, usage terms of software and other terms arise from the KS license agreement. If no KS-license-contract has been signed, the license agreement which is displayed and has to be accepted during the software installation will supersede it. Regulations of the following General Terms and Conditions will apply analogously.
1.2. Agreements differing from these terms of business, in particular differing terms of business of the customer, need the explicit prior approval and confirmation by KS in order to become part of a contract in terms of paragraph 1.1 of these terms of business.
1.3. Software in the sense of these terms of business are data processing programs in machine-readable form incl. user documentation which is part of it.
1.4. Unless something else is agreed explicitly and in written consent, these terms of business also apply to all adjustments, enhancements and other modifications of the software incl. new program levels (all handed over by KS within the scope of the agreement relationship) and to other material handed over within the scope of maintenance.
1.5. An agreement about licensing, usage and maintenance of software becomes effective by signing the KS license agreement by the customer and KS. The effective date of the agreement arises from the specific KS license agreement.
1.6. KS delivers one or more copies of the software (data media with program and user documentation) according to the product description, in addition a so-called hardlock (see 4.) for each workstation – unless something else is agreed in written consent; KS does not owe features and services beyond that.
1.7. The software is delivered in the version that is up-to-date at the time of the conclusion of the agreement; source code will not be handed over to the customer.
1.8. The customer is responsible for choice and usage environment of the software; he takes the risk of whether the software matches his desires and requests, in case of a pass-on-right within the scope of an OEM-license (see 2.9, 2.12) whether it matches the desires of the end customer. KS is not obliged to advise the customer regarding choice of software, unless such services are agreed explicitly and in written consent.
2. Extent of usage
2.1. KS grants the customer the non-exclusive and non-transferable – OEM-license excepted (2.9, 2.12) – right to use the software within the agreed scope for an indefinite period of time. These rights become effective with the inception of the agreement as agreed in the KS license agreement.
2.2. Usage includes complete or partial reading-in (copying) of machine-readable programs, execution of instructions contained in the programs and the usage of the documentation according to the agreed scope.
2.3. Mode and scope of usage depend primarily on the KS license agreement, subsidiarily on these agreement terms.
2.4. The customer may use the programs only in the agreed usage environment (e.g. CPU, installation site, corporate group) and within the scope of the agreed usage terms (e.g. number of workstations). Usage environment and usage terms arise from the specific KS license agreement.
2.5. The customer is only authorized to change the software within the scope of paragraph 40d section 2 UrhG (copyright law), unless something else is agreed explicitly and in written consent.
2.6. The customer is not authorized to transform the software completely or partially from object code to other print-out forms. As an exception, de-compilation is allowed within the scope of paragraph 40e UrhG (copyright law), if the customer has asked KS in written form, giving a reasonable period of time to provide the information and documents necessary for creating the interoperability, yet this request has not yielded a result. Before usage by third parties (according to paragraph 40 e section 1 no. 1 UrhG [copyright law]) the customer must hand over to KS a written consent of the third party in which the third party commits itself to KS to observe the terms specified in points 2. and 3.
2.7. The programs may only be used in connection with and for programming the plant („particular plant“) specified in the KS license agreement.
2.8. The customer may use the programs simultaneously only on one workstation (single license). The customer may also get an authorization to use the program simultaneously on several workstations (multiple licenses), whereupon the number of workstations and remuneration arise from the KS license agreement.
2.9. The customer is entitled to purchase a so-called OEM-license, which has to be stated in the KS license agreement. In this case the customer is allowed to distribute the software with his own name/trade mark, but exclusively in connection with/using the “particular plant” as specified in detail in the KS license agreement; the terms of point 3.1 remain intact.
2.10. For backup purposes the customer is allowed to make a copy of the machine-readable programs; The copy must be marked as backup copy and with the copyright annotation of the original software.
2.11. In case of having been granted an OEM-license the customer may pass on the licensed software to his customers (= end customers) for usage – but only within the agreed extent and with the agreed restrictions and only together/in connection with the “particular plant”. The copyright of KS must be pointed out explicitly and in written form to the end customers and the usage restrictions specified in the KS license agreement and in these terms of business must be imposed on them. The end customer is not permitted to pass on the software without explicit written consent by KS. The customer must take care that the end customer observes the usage restrictions according to this point and point 2.3. On request the customer will present KS his agreements with the end customer in this matter for inspection. In case of violations of the agreement by an end customer, the customer himself will prosecute the end customer concerned or – according to KS’s choice – support KS in prosecuting such violations of the agreement in the necessary and purposeful extent.
2.12. The remuneration agreed between the parties considers the different extent of usage.
3. Confidentiality
3.1. The customer is obliged to keep property details, such copyright marks in unchanged form in connection with the software as well as to insert copyright marks in unchanged form into all completed or partial copies manufactured by the customer.
3.2. The customer is obliged not to disclose any confidential information concerning the software to third parties. Employees of the customer or other persons for the period of their stay with the customer using the software for the customer according to the agreement (hereinafter referred to as „employee“) are not considered to be third parties; neither are end customers and their employees.
3.3. The customer is not allowed – with the exception of OEM-license (see 2.9 and 2.12) – to pass on the software completely or partially to third parties, unless something else is agreed in written consent.
3.4. The customer is obliged to transfer his obligations according to points 3.1 and 3.2 to his end customers. Point 2.11 last sentence is valid analogously.
4. Delivery
4.1. The customer receives one or more copies of the software specified in the KS license agreement on a machine-readable data media incl. user documentation which is part of it, in addition – unless something else is agreed in written consent – for any (agreed) workstation a so-called hardlock by which the program is made executable on the specific workstation. In case of an OEM-license the customer receives the programs on so-called master disks incl. one copy of the documentation in machine-readable form in English and incl. a customer-specific hardlock; the customer is entitled with each additional license to copy the program and the documentation himself and to pass it on to the end customer according to point 2.9 and 2.12; in this case KS delivers only the hardlock for each additional license.
4.2. Unless something else is agreed in written consent, the delivery is dispatched until the agreed date. Conditions beyond control of KS (“greater force”), strikes and similar circumstances preventing KS from delivering in time prolong the delivery deadline by the period of the prevention and by an appropriate start-up time after the prevention has ceased.
4.3. The software is delivered with handing over the data media, the user documentation and the hardlock(s) which are part of it, in case of point 4.1 last sentence when delivering the hardlock(s).
5. Remuneration
5.1. The remuneration is the payment for the agreed usage of the software. The amount of the remuneration is charged by the KS price list valid when the agreement is concluded, in case of an OEM-license less an OEM-discount to be agreed. The amount of the remuneration is to be stated in the KS license agree¬ment. Transport and packing are invoiced separately by KS.
5.2. If obliged to sales taxes, VAT is added to the prices.
5.3. The total amount of the remuneration is due net within 30 days after invoice, but not before delivery of software. The customer has to bear all bank charges incurring with the payment
5.4. In case of payment delay an interest on arrears of 6% per annum over the main refinancing rate (2¬week-tender) of the „European Central Bank“ will accumulate.
5.5. The customer can only charge up against undisputed and legally made claims. He cannot transfer his claims to third parties. The customer is not entitled to any rights of retention concerning the subject matter of agreement or parts of it resp. he abandons them.
6. Maintenance
a) The customer is offered those new program levels (e.g. updates) of the software that is subject of this agree¬ment which are released during the agreement period;
b) the customer is entitled to technical support by phone for fault and error recovery resp. workarounds during the official business hours of KS;
c) the customer receives information about planned new program levels in advance.
6.2. The maintenance agreement can be concluded for an indefinite or a definite period, which has to be stated in the KS license agreement or in the KS software maintenance contract. In case of indefinite period the service can be cancelled by the end of each year giving a 3 months’ notice by each agreement partner. Extraordinary notice of cancellation will remain unaffected by this rule.
6.3. The maintenance fees are charged by the current at-the-time KS price lists and are to be stated in the KS license agreement or in the KS software maintenance contract.
6.4. The maintenance relationship starts with delivery of the software, unless something else is agreed explicitly. Payment obligation in this case starts 6 months after software delivery. The remuneration will be invoiced in advance for each trunk/calendar year.
6.5. KS is exempted from the obligation to perform services for the customer without affecting the payment obligation for the agreed remuneration if the customer refrains from installing the current or the previous version as well as from the delivered problem solutions for the software, unless the delivered versions resp. problem solutions are faulty in sense of point 7. of this agreement.
6.6. Maintenance service does not include recovery or larger efforts to maintain the software (necessary because of usage contrary to the agreement, usage in another usage environment than agreed, improper usage, usage other persons being involved, greater force or similar circumstances), repairs of the software which the customer changed contrary to the agreement or which were serviced technically by other than KS, all without prior written consent of KS.
6.7. Also in case of an OEM-license maintenance service can be arranged with the customer; in such a case the customer himself is entitled to offer his end customer maintenance service, whereat the customer must not, as far as KS-software is concerned, offer the end customer more or other services to be performed by KS than the customer himself receives from KS. It can also be agreed in individual cases that KS performs services (especially according to point 6.1.b) directly at the end customer, acting as an assistant of the customer. But it has to be stated in these cases that a direct agreement relationship between KS and the end customer will not arise under any circumstances.
6.8. The customer will inform KS immediately if the software does not work satisfactorily. The customer has to document in written form the circumstances under which the errors occur and its effects.
6.9. The rules of this General Terms of Business are valid for performance disturbances within the scope of the software maintenance. The extraordinary notice of cancellation replaces cancellation.
6.10. Other services, such as installation, instruction, training, individual adjustment of the software or other services, are not part of the maintenance service. If KS offers such services, they have to be agreed on separately in written form.
7. Warranty
7.1. KS guarantees that, at the time of delivery, the software is not defective in a way that its efficiency is revoked or diminished in relation to the product description. Insignificant deviations from the product description are not considered.
7.2. KS also guarantees that the services performed within the scope of the maintenance service are not defective in a way that their value and efficiency is revoked in relation to the agreed service extent. Insignificant deviations are not considered, either.
7.3. If defects in sense of points 7.1 and 7.2 occur in case of usage according to the agreement, the customer is obliged to allow KS to fix them within an appropriate period. The customer must inform KS about the errors immediately in comprehensible form and by giving informa¬tion necessary for error recovery. The customer will support KS with error recovery, while reasonable. KS does not give warranty for defects that cannot be reproduced at KS.
7.4. If the complete software or parts of it do not work properly, the customer takes suitable measures for data backup so that the data can be reproduced with justifiable efforts from the data backup that are provided in machine-readable form.
7.5. If KS is not successful – in spite of repeated efforts – to recover or to workaround the defects so that the software can be used according to product description, the customer is legitimated according to the legal rules to request reduction of the agreed remuneration or to withdraw from the agreement.
7.6. Warranty expires for software which the customer has changed or modified without permission resp. consent of KS or which he manipulated otherwise without such a permission, unless the customer proves, when reporting the defect, that the modification does not cause the defect.
7.7. The customer has the exclusive responsibility for the choice of software. Therefore KS does not guarantee that the software possesses all the features the customer takes for granted or that the software is capable of performing all applications the customer wishes to execute.
7.8. Warranty period is 6 months from the date of delivery.
8. Liability
8.1. KS pays compensation only in case of intent or gross negli¬gence. The liability of KS is limited to the double amount of the remuneration agreed with the customer for the software immediately causing the defect. KS is not liable for loss of profit, expected but not occurred savings, indirect damages and consequential damages as well as for damages of recorded data. With the exception of point 9. KS is not liable for damages of obligations of third parties.
8.2. The customer takes measures, e.g. daily data backup, to keep the damages as small as possible.
8.3. By means of extensive and intensive tests – while reasonable – the customer will see to it that the occurrence of possible damages caused by direct or indirect usage of the subject matter of the agreement are avoided as far as possible and that the consequences of potential damages are kept as small as possible.
9. Rights of third parties
9.1. KS guarantees that there are no rights of third parties that are opposed to the transition of rights according to point 2. Otherwise the customer may cancel the agreement after a written appointment of date with threatening termination, unless KS provides a legally satisfactory usage possibility of software according to agreement. Point 8. rules compensation claims of the customer. In case of an OEM-license possible liability restrictions must be transferred by the customer to his end customers in his agreements.
9.2. KS will defend and hold customer harmless from claims by third parties towards the customer because of violating copyrights due to the delivery and services of KS. The customer himself is not entitled to accept such claims. The customer is obliged to take all actions so that KS can refuse the claimed copyright viola¬tions. He authorizes KS to take over the settlement in and out of court; KS keeps him free of claims, as long as these claims are not based on his behavior. The customer informs KS immediately, in written form and comprehensively of claim statements of third parties.
10. End of usage right
10.1. KS can withdraw the usage rights from the customer immediately according to this agreement, if the customer violates repeatedly or grossly essential rules of the agreement, especially points 2. and 3. A founded written reminder with threatening the withdrawal shall precede this withdrawal. The customer has no claims on refunding the remuneration. In case of an OEM-license this regulation must be transferred by the customer to his end customers. The customer must inform KS immediately about possible agreement violations of the end customers, on request of KS he has to prosecute them or let KS directly prosecute them, whereupon in the last case the customer has to support KS in any way esteemed helpful by KS and hand over possible claims.
10.2. Upon end of usage right the customer returns all data media, the complete documentation incl. all copies, and deletes saved programs. He assures KS of the execution without delay. The obligations arising from this agreement, especially from point 3., will persist on a continuing basis. In case of an OEM-license this regulation is also to be transferred analogously to the end customers of the customer.
11. Execution assistants
KS is entitled to use third parties to fulfill his obligations arising from this agreement.
12. Miscellaneous
12.1. Modifications/Enhancements to the General Terms of Business must be in written form, this also applies to revocation of the written form.
12.2. All disputes arising in connection with an agreement that is subject to the General Terms of Business – including disputes about its existence or non-existence – are adjudicated by courts, having jurisdiction on the subject matter, in Vienna, Austria.
12.3. All expenses and costs accumulating with establishing the agreements are to be paid by the customer.
12.4. All disputes arising from an agreement relationship that is subject to the General Terms of Business are subject to material Austrian law, „UNCITRAL-Kaufrecht“ excepted.