AGB

Standard License Terms (Professional Users)

Your order will be performed according to our Standard License Terms (“SLT – Professional Users”)

§ 1       Application, Definitions

1.1       These Standard License Terms (SLT) between us – the Licensor – and you – the Licensee as our contractual partner – shall apply exclusively. Differing or contrary terms shall not apply except if expressly agreed upon in writing.

1.2       These SLT shall only apply vis á vis entrepreneurs, governmental entities, or special estates within the meaning of sec. 310 para. 1 BGB (German Civil Code) (“Professional Users”).

§ 2       Granting of Temporary License

2.1       Licensor hereby grants to Licensee for the duration of this contract (“Term”) a license to use and exploit the software set out in Annex 1: Product Sheet („Licensed Product“) subject to the terms and conditions of this SLT, including installation, loading, displaying and running. The Licensed Product comprises the software and the documentation in accordance with the Product Sheet. The License to the Licensed Product is non-exclusive, non-transferable and non-sublicensable.

2.2       The grant of license is subject to the condition precedent of full payment of the License Fee (according to Section § 5) to the Licensor.

2.3       The right to use and exploit the software is limited to the purposes described in Product Sheet according to the state of the art at the time of the entering into this Agreement(“Purpose of Use”). The Purpose of Use represents the sole agreed upon quality of the software between the Parties. Licensor remains legal owner of the software at any time.

2.4       The right to copy the Licensed Product granted to Licensee herein is limited to the installation of the Licensed Product on a computer system which is in Licensee’s immediate possession and to fulfill the Purpose of Use and a copy thereof which is required for the loading, display, running, transfer or storage of the Licensed Product. Making a copy for security backup is not admitted, as long as the Licensed Product is available for downloading on the Licensor’s server (sec. 69d para (2) UrhG – German Copyright Act).

2.5       The right to revise the Licensed Product granted to Licensee herein is limited to the maintenance or reinstatement of the agreed functionality of the Licensed Product. The right to decompile the Licensed Product granted to Licensee herein is only granted under the terms of sec. 69e para. (1) nos. 1 to 3 UrhG (German Copyright Act) and within the limits of sec. 69e para. (2) nos. 1 to 3 UrhG (German Copyright Act).

2.6       Licensee is not entitled to transfer or make otherwise available (e.g. by rent etc.) the Licensed Product to third parties. However, Licensee may make available the Licensed Products to its employees and other persons who are subject to the Licensee’s right of instruction. An autonomous use right to those persons may not be granted.

2.7       No more extensive rights to use and exploit the Licensed Products are granted to Licensee. Without Licensor’s consent Licensee shall neither modify nor edit the Licensed Products, unless Licensor is in default to remedy a material defect of the Licensed Product and the modification or edit is carried out to remedy the defect.

2.8       Upon breach of contract by Licensee, in particular on default of payment, Licensor shall be entitled to deactivate the license and thereby stop the Licensor from further using the Licensed Products. Furthermore he may require at Licensee’s expense the return of all copies of the Licensed Product, if any, in which Licensor has retained ownership, or if applicable, to demand the assignment of Licensee’s right of return against third parties. In such case upon Licensor’s request Licensee shall confirm in writing that no copies of the Licensed Product of copies thereof were retained and that all installations of the Licensed Product have been irrevocably deleted from Licensee’s or third party’s systems.

§ 3       Installation of the Licensed Product

3.1       Licensor shall deliver a copy of the Licensed Product for the exercise of the rights to use and exploit granted to Licensee herein in machine readable form and transferred via download on the website www.cardiolectra.de or another medium to be agreed upon between the Parties. Licensee shall receive the software documentation, if any, as electronic document in.. Licensor makes available to Licensee the necessary license code to activate the software. Such license code may only be used to exploit the Licensed Product within the legal framework of this STL, Schedule 1 and the software documentation.

3.2       Licensee is responsible for providing the system environment in accordance with the system requirements set forth in the Product Sheet (Annex 1). He is further responsible for installing and configuring the software on its own system premises.

§ 4       Maintenance

4.1       For the term of this Agreement Licensor shall maintain the agreed upon quality of the Product within the Purpose of Use in accordance with Section 2.3 according to the state of the art at the time of the entering into this Agreement. Therefore Licensor shall perform the necessary maintenance works.

4.2       Licensor shall modify or adapt the software only if and to the extent, such modification or adaption is necessary for the maintenance of the software according to the state of the art at the time of the entering into this Agreement (update). Licensor is not obligated to advance the development of the software (upgrade). Parties may agree upon such advanced development in a specific agreement.

§ 5       License Fee

5.1       Licensee shall pay an annual fee in the amount of as set forth in our Price List (Annex 2) plus applicable value-added taxes.

5.2       Payment is to be made in advance for the respective Term. In case of Extended Term according to Section 11.1 payment has to be made within 30 days after receipt of the respective invoice.

§ 6       Licensee’s care

License shall take adequate measures to prevent access to the Licensed Product by unauthorized persons.

§ 7       Warranty

7.1       Licensor only and exclusively warrants that the Licensed Product has the agreed upon quality within the Purpose of Use set out in Section 2.3 and the Product Sheet (Annex 1). Licensee knows and takes acceptance of the fact that the Licensed Product serves for informational and educational purposes only. It is neither in form nor in function a medical device and not suitable to be applied as such in medical therapy or as a decision-enhancing tool regarding certain medical actions.

7.2       In case the Licensee notices a defect of the Licensed Product, he shall immediately give a written notice (e-mail to contact@cardiolectra.com is sufficient) to the Licensor, specifying when and under which circumstances the problem occurred. Licensor will react within adequate reaction times during normal business hours. The reaction time depends on how critical the problem is for the operation processes of Licensee.

7.3       Licensor shall examine the Licensed Product and remedy any defect within an appropriate period of time at its own expense. Licensor may chose the kind of remedy.

7.4       Licensee shall give adequate access to the Licensed Product in order to enable Licensor to perform necessary remedy measures. As a temporary solution Licensee shall accept suggestions for adequate workaround solutions.

§ 8       Liability

8.1       Licensor’s liability is unlimited in case of intentional or gross negligent behavior, in case of harm to life, body or health, in case of liability under the statutory provisions of the Produkthaftungsgesetz (German Product Liability Law) and wherever Licensor has given a particular guarantee.

8.2       In case of a ordinarily negligent breach of a contractual obligation which is of the essence for the performance of the contractual purpose (Kardinalpflicht – cardinal duty), liability of the Licensor is limited in its amount to the damages foreseeable and typically occurring in the present contractual context.

8.3       Apart from Section 8.1 and Section 8.2 any Licensor’s liability is excluded. In particular the Licensor is not liable for defects that have already been existing at the time this Agreement has come into force, unless Sections 8.1 and 8.2 are applicable.

8.4       The aforementioned limitations of liability shall apply also on the personal responsibility of the Licensor’s employees, representatives and officers.

§ 9       Hardware

In case Licensee choses a Licensed Product – in accordance with the Product Sheet (Annex 1) – that comprises the use of specific hardware devices to be provided by Licensor (like tablets, VR-systems), the Standard Terms on Hardware Rental in Annex 3 additionally apply.

§ 10    Customization

Licensor offers specific customization services on request, like branding or integration of specific medical devices. Such services are subject to a specific further individual agreement.

§ 11    Term and Termination

11.1    The initial term of this Agreement shall be [12] months from the day the software has been activated as a full version by the Licensee (“Term”). The Term shall extend automatically for another [12] months (“Extended Term”) if none of the Parties has declared termination at least [1] months before the end of the respective Term or Extended Term.

11.2    The statutory right to immediately terminate the Agreement for cause remains unaffected for both Parties.

11.3    Notice of termination has to be issued in written form (e-mail included).

11.4    At the end of the Term or in case of early termination for cause Licensee shall immediately cease to further use the Licensed Products. Licensor is entitled to deactivate the license and thereby stop the Licensor from further using the Licensed Products. Licensee shall de-install all copies of the program from its systems, if any, assure that any third party also de-installs the program, delete the Licensed Product completely from his systems and destroy any solid backup copy, documentation etc. The use of the Licensed Product after the termination of the Agreement is forbidden.

§ 12    Data Protection

Parties observe the statutory law regarding data protection.

§ 13    Miscellaneous

13.1    This SLT and the relation between the Parties shall be governed by the laws of the Federal Republic of Germany under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

13.2    Place of jurisdiction for any disputes arising out of or in connection with this contractual relation shall be Berlin, Germany.

13.3    The Annexes are an integral part of the Agreement. In case of contradictions between the Annexes and the provisions of the Agreement the latter shall prevail.

13.4    The Parties agree that should, at any time, any provision of this Agreement be or become void, invalid or due to any reason ineffective this will not affect the validity or effectiveness of the remaining provisions and this Agreement will remain valid and effective, save for the void, invalid or ineffective provision. The void, invalid or ineffective provision shall be deemed replaced by such valid and effective provision that in legal and economic terms comes closest to what the Parties intended or would have intended in accordance with the purpose of this Agreement if they had considered the point at the time of conclusion of this Agreement. The same shall apply to any gaps.

Berlin, 15.10.2020