General Terms and Conditions (GTC) of Intechcore GmbH for the SComponents Software License – SCell.Reader

Section 1 Scope of application

These General Terms and Conditions (GTC) together with the Licence Request constitute a contract by and between Intechcore GmbH Software / IT-Services, Keltenring 10, 82041 Oberhaching, Germany, phone: +49 89 2153060‑0, fax: +49 89 2153060‑99, e‑mail: sales@intechcore.com, registered with the commercial register (Handelsregister) of the Munich Local Court (Amtsgericht) under company number HRB 174823, represented by its managing director Mr. Vasily Smeltsov, VAT ID: DE260980745

– hereinafter the “Provider” –

and

the customer

– hereinafter the “Customer” –

In the event of any inconsistencies between the Licence Request and the GTC, the Licence Request shall prevail over the GTC. The GTC shall apply unless otherwise expressly agreed upon between the Provider and the Customer in writing. Any deviating or conflicting terms will not be accepted by the Provider unless the Provider expressly approves them.

The applicable version of the GTC shall, in each case, be the version as amended at the time of the conclusion of the contract.

The offers are exclusively made to entrepreneurs as defined by Section 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). The Provider may therefore require the Customer to provide sufficient proof of their entrepreneurial status prior to the conclusion of the contract, e.g. by providing its VAT ID or other suitable proof. The data required for verification must be provided completely and truthfully by the Customer.

Section 2 Conclusion of contract

(1) The Customer automatically asks a Licence once confirms the usage of our available Free of Charge Plug-in on IntelliJ IDEA. This constitutes a request for an order (invitatio ad offerendum). The download constitutes a binding confirmation by the Customer to conclude a contract for the product description specified in the Plug-in Request.

(2) The Provider automatically accepts the Licence Request when Customer obtain to download the Software.

Section 3 Subject matter of contract

(1) The subject matter of the Customer’s respective order is the permanent provision of the computer programs specified in the Plug-in description (Licence Request) in object code, including the corresponding installation instructions (incl. system requirements) (the “Contractual Software”) and the granting of the rights of use described in section 4. The hardware and/or software environment within which the Contractual Software shall be used is described on the web-site and in the installation instructions. The functionality of the software requires that it runs in a suitable technical environment.

(2) The characteristics and functionality of the Contractual Software are finally set forth in the Licence Request and the product description on the Provider’s platform. The information provided in this respect are to be understood as service descriptions and not as guarantees or representations. A guarantee is only given if it has been expressly designated as such.

(3) Installation and configuration services are not covered by this contract. This also applies to integration, customising and adaptation of the Contractual Software to the Customer’s needs at source code level the latter is not the subject of this License Agreement.

Section 4 Granting of rights

(1) Single licence

Upon provisioning of the software, the Customer is granted a non-exclusive right to use the Contractual Software within the scope specified in the Licence Request (PlugIn description) for an indefinite period of time. The Contractual Software must only be used simultaneously by the maxi-mum number of individuals which corresponds to the licences acquired by the Customer. The permitted use includes the installation of the Contractual Software, loading into the working memory as well as the approved use by the Customer. The number of licences as well as the kind and scope of use are otherwise set forth in the Licence Request (based on PlugIn description for the user). The Customer shall, under no circumstances, have the right to rent or otherwise sub-licence the acquired Contractual Software, to publicly reproduce or give access to it by wire or wireless means or to make it available to third parties against payment or free of charge, e.g. by way of application service providing or as software as a service. A resale of the software to third parties is not permitted unless statutory provisions to the contrary apply.

  1. Demo Trial or free of charge licence

A demo trial licence may only be granted on the basis of a single licence. Upon download of the free of charge Plug-in, the Customer is granted a non-exclusive right to use the Contractual Software with-in the scope of a single licence. The Contractual Software must only be used simultaneously by the maximum number of individuals which corresponds to a single licence. The permitted use includes the installation of the Contractual Software, loading into the working memory as well as the approved use by the Customer. The number of the licence is limited to one. The kind and scope of use corresponds to the performance criteria described in the Licence Request for a single licence. The Customer shall, under no circumstances, have the right to rent or otherwise sub-licence the acquired Contractual Software, to publicly reproduce or give access to it by wire or wireless means or to make it available to third parties against payment or free of charge, e.g. by way of ap-plication service providing or as software as a service. A resale of the software to third par-ties is not permitted unless statutory provisions to the contrary apply.

(4) The Customer shall be entitled to make a backup copy if required for securing future use. The Customer shall visibly mark the created backup copy with “backup copy” and a copyright notice of the producer.

(5) The Customer shall only be entitled to decompile and/or reproduce the Contractual Software to the extent provided for by contract or mandatory law (e.g. due to one’s own right to remove defects). However, this shall only apply if the Provider has not submitted the information required in this respect to the Customer upon request within a reasonable period of time.

(6) Should the Customer use the Contractual Software within a scope exceeding the acquired rights of use in terms of quality (with regard to the kind of the permitted use) or quantity (with regard to the number of the acquired licences), the Customer shall promptly acquire the licences required for permitted use. If the Customer fails to do so, the Provider will enforce its rights.

Should the Customer use a trial licence for a period of more than six months, the Provider shall be entitled to charge the relevant licence (at least a single licence). The time limit does not apply when using a Plug-in as a Free of Charge version.

(7) Author notes, serial numbers and other features for identifying the programme must not be removed from the Contractual Software or changed.

(8) The rights granted under the licences subject to a fee (paragraphs 1 and 2) shall be subject to the condition precedent of full payment of the agreed fee. Until full payment of the fee, the Provider will tolerate the use of the software as specified above. This can be revoked if the Customer defaults on the payment of the fee.

The rights under the trial licence (paragraph 3) are granted subject to a condition subsequent of the expiration of the period of six months with the consequence that the Customer loses the rights of use granted under this contract. The exception to this rule is given if the user uses the license within the framework of a free download in the form of a plug-in and in accordance with the description of the available features of the software program.

Section 5 Delivery

After receipt of the Licence Request (Plug-in Request), the Provider shall deliver the Customer by access to the Contractual Software (Plug-in) by free download and according to the purpose in the Licence Request (the Plug-in description).

Section 6 Prices

All prices stated on the Provider’s website are net prices. The actual tax and the tax liability depend on the place of business of the respective Customer and are shown separately in each case.

Section 7 Terms of payment, invoicing

(This section is not relevant for a F.o.C. plug-in)

(1) Payment shall be made exclusively by bank transfer.

(2) Payments are due upon transmission of the link to the download and are payable within 14 days of invoicing.

(3) Invoices are sent by e‑mail. The Customer agrees to receive invoices electronically. Electronic invoices will be sent to the Customer by e‑mail in PDF format to the e‑mail address provided by the Customer for this purpose.

(5) The Customer may revoke their consent to the electronic dispatch of invoices in writing at any time.

(6) The Customer’s obligation to pay default interest does not exclude the Provider’s right to assert further claims for damage caused by default.

Section 8 Supplementary performance

(1) The Provider shall provide subsequent performance in accordance with statutory provisions unless otherwise provided for below.

(2) The type of supplementary performance shall be determined by the Provider.

(3) The Provider may also provide supplementary performance by rendering remote services in accordance with section 8.1.

(4) Any claims for supplementary performance lapse in twelve months.

(5) Prerequisite for asserting claims based on a liability for defects shall be that the defects are reported in writing within one week after they have first been discovered.

(6) If the Provider chooses to deliver defect-free software to remedy a defect, the Provider may also provide a newer version of the software that at least has all the qualities owed by the Provider and does not impair the Customer with regard to the use of the software compared to the quality owed under this contract. The Customer acquires the rights of use to this new version in accordance with section 4 subject to a condition precedent as of the time of installation for operational use. The Customer loses these rights of use subject to a condition subsequent in the event of the installation of a further new software delivered in accordance with sentence 1. If the software is only partially modified by way of supplementary performance, the rights originally applying to the entire software shall also cover the modified parts.

(7) The Customer shall assist the Provider in identifying and removing the defects and promptly grant access to documents providing more detailed information about the occurrence of the defect.

(8) The obligation to examine and give notice of defects pursuant to Sections 377 and 381 of the German Commercial Code (Handelsgesetzbuch, HGB) exists with the proviso that the Customer’s obligation to examine is limited to defects that are openly apparent. The obligation to give notice of defects detected at a later point in time remains unaffected. Notwithstanding the obligation to examine, the complaint (notice of defect) shall be deemed to have been made without undue delay and in good time if, in the case of obvious defects, it is sent within three working days of receipt or discovery.

(9) Before asserting claims for supplementary performance, the Customer shall examine with the due diligence required in the course of business whether a defect subject to supplementary performance exists. Insofar as an alleged defect is not covered by the obligation of subsequent performance (pseudo defect), the Provider may charge the Customer for the services rendered for verification and fault repair at the Provider’s fee rates applicable from time to time plus the necessary expenses unless the Customer could not have recognised the pseudo defect even by exercising the due diligence required in the course of business.

(10) The Customer shall irreversibly uninstall any installed software replaced by way of supplementary performance and return any data carriers to the Provider for this purpose.

(11) The Customer shall return all items received from the Provider for the performance of this purchase contract in the event of a withdrawal. In addition, the software must be permanently uninstalled without delay. The obligation to uninstall covers all software provided on the basis of this contract (including software provided as part of supplementary performance, for example through updates or a further version).

(12) The Customer must confirm the fulfilment of an obligation to uninstall the software in accordance with paragraph 11 or 12 in writing, i.e. in person by signing their name (Section 126 BGB).

(13) Place of supplementary performance is the Provider’s place of business.

(14) Liability for material defects and general liability are excluded or limited to the extent permitted by law for free trial or Plug-in licences.

Section 8.1 Remote service

(1) The Provider may remove defects by providing updates.

(2) The parties shall agree on a handover point up to which the Customer shall provide in-house communication for the updates. Beyond this handover point, neither party shall be responsible for the successful transmission of data.

(3) If it is not possible to remove a defect by an update because a connection was not established by the Customer and, as a consequence, an on-site operation has to be carried out, the Customer shall bear the necessary additional expenses.

Section 9 General liability

(1) The Provider shall be liable for intent or gross negligence. The Provider shall only be liable for slight negligence in the event of a breach of a major obligation (material contractual obligation), the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the Customer may regularly rely as well as in the event of damage resulting from injury to life, body or health.

(2) In the event of slight negligence, liability shall be limited to the amount of the foreseeable damage, the occurrence of which must typically be expected; however, this liability shall be limited to a maximum of €25,000.00 per damage claim and to a total of €100,000.00.

(3) The Provider shall not be liable for the loss of data if the damage is due to the fact that the Customer has failed to make data back-ups and thus to contribute to the fact that lost data can be restored with reasonable effort.

(4) The provisions above shall also apply for the benefit of members of the Provider’s corporate bodies and vicarious agents.

Section 10 Protective measures, right to audit

(1) The Customer shall protect the Contractual Software and the online access data, if any, against access by unauthorised third parties by taking suitable measures. In particular, any and all copies of the Contractual Software and the access data must be kept in a safe place.

(2) Upon request, the Customer shall allow the Provider to verify the agreed upon use of the Contractual Software, particularly as to whether the Customer uses the programme in terms of quality and quantity within the scope of the acquired licence. For this purpose, the Customer shall give the Provider information, allow the Provider to inspect the relevant documents and records and to check the environment of the used hardware and Contractual Software.

Section 11 Miscellaneous

(1) The Customer is only entitled to a set-off with undisputed or final claims.

(2) Any amendments and supplements to the contractual relationship and any notices relating thereto must be made in written form. This shall also apply to any amendment or revocation of this clause.

(3) The parties are aware that the Contractual Software may be subject to export and import restrictions. In particular, there may be obligations to obtain a permit or the use of the Contractual Software or associated technologies may be subject to restrictions abroad. The Customer will comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union, the United States of America as well as all other relevant provisions. The performance of the contract by the Provider is subject to the proviso that there are no obstacles to performance due to national and international regulations of export and import law and that there are no other statutory provisions to the contrary.

(4) The laws of the Federal Republic of Germany shall apply without giving effect to the UN Sales Convention.

(5) Should individual provisions be invalid, the validity of the remaining provisions shall not be affected thereby. In lieu of the invalid provision, the contracting parties shall agree upon such valid provision which most closely corresponds to the economic intent of the invalid one.

(6) If the Customer is an entrepreneur, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising under the contractual relationship between the Customer and the Provider shall be the Provider’s place of business.

The Provider shall, however, also be entitled to file action at the Customer’s place of general jurisdiction.

(7) The contracting parties have concluded the contract in the German and English language. The German version alone shall be decisive for the legal effects between the parties.

 

Dated 2023/09/14

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