| 7 Permission to use software, software licensing agreement | ||
| 7.1 | Permission to use software is granted to the customer in return for a one-off payment. | |
| 7.2 | Where permission to use software is granted the legal relationship between DATASOUND and the customer shall be governed exclusively by the DATASOUND Software Licensing Agreement as amended at the time permission is granted. | |
| 8 Payment | ||
| 8.1 | Where purchase prices are payable c.o.d., payment will be due forthwith following supply or performance and receipt of invoice by the customer. Where payments are made by credit card the purchase price will be due as soon as the order has been picked and the goods have left the warehouse. | |
| 8.2 | Customers shall only have the right to set off counterclaims provided that these are legally valid or undisputed. | |
| 8.3 | Customers may only exercise a right of retention provided that their counterclaim pertains to the same legal relationship. | |
| 9 Warranty, elimination of software defects, duty to inspect and register complaints |
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| 9.1 | In the event of product defects which occur within 24 months following the transfer of risk as a result of circumstances which existed prior to the transfer of risk (e.g. design errors or material defects, lack of assured characteristics), DATASOUND offers a warranty as required by law. It is incumbent on the customer to report defects in existence at the time the purchased goods are received no later than two weeks after receipt (dispatching notification in good time will suffice). Failure to report defects in good time will render warranty claims invalid. Information contained in brochures, advertisements, documentation and similar publications is intended for descriptive purposes only and constitutes no guarantee of the nature of products. | |
| 9.2 | DATASOUND must eliminate software defects which arise within 24 months following receipt of the software. Software defects shall exclusively comprise reproducible deviations from the relevant software description. For as long as it is liable for the elimination of software defects, DATASOUND will fulfill this duty by supplying a new software release. Until such time as the new software release is supplied DATASOUND is required to provide an interim workaround solution, provided that this is possible at reasonable expense and provided also that the customer is no longer able to process tasks which cannot otherwise be postponed. The customer must provide DATASOUND with all documents and information needed to eliminate software defects. | |
| 9.3 | Should the elimination of defects not prove successful within a reasonable period, the customer may demand a reduction in the price or cancellation of the contract. This shall not affect Section 10 (Liability of DATASOUND). | 9.4 | If the customer is a commercial entity, the warranty period pursuant to Sections 9.1 and 9.2 shall be twelve months. In this case inspection of the goods and notification of possible defects shall be subject to the provisions of § 377 of the German Commercial Code. | 9.5 | If the customer resells the goods, the customer shall have a right of recourse against DATASOUND pursuant to § 478 of the German Civil Code (recourse by a commercial entity) only insofar as the customer shall not have entered into any agreement with his purchaser which goes beyond the entitlements provided for by law. |
| 10 Liability of DATASOUND | ||
| 10.1 | Warranty and compensation claims by the customer in excess of the entitlements specified in this contract, in particular claims for interruption of operations, loss of profit, loss of information or data or consequential claims resulting from defects are excluded irrespective of legal grounds. | |
| 10.2 | This shall not apply in the event of mandatory liability, e.g. pursuant to product liability legislation or in cases of willful intent, gross negligence, loss of life, physical injury or impairment of health, or a breach of essential contractual duties. Compensation for a breach of essential contractual duties is however limited to typical, foreseeable loss or damage, provided that there was no willful intent or gross negligence involved and no liability exists for loss of life, physical injury or impairment of health. The above provisions entail no variation in the onus of proof to the detriment of the customer. | |
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