GENERAL TERMS AND CONDITIONS (GTC) / LICENSING AGREEMENT

Transcription

1 1.Scope of application: GENERAL TERMS AND CONDITIONS (GTC) / LICENSING AGREEMENT 1.1 The present General Terms and Conditions (GTC) shall apply exclusively to all deliveries and services of Madison Werbeagentur Marketing- und Werbeberatungs GmbH (hereinafter referred to as Licenser ) in connection with the software PadMan for the customer (hereinafter referred to as Licensee ) as well as all resulting rights and obligations. 1.2 Any conflicting or differing conditions of the Licensee shall only be applicable if the Licenser agrees to comply with them expressly and in writing. Accordingly, the Licenser s GTC shall also be applicable if they carry out deliveries and services without reservation in full knowledge of conflicting or differing conditions of the Licensee. 1.3 The Licenser s GTC shall also apply to future business transactions between the contractual parties, even if it is not referred to them again during these transactions. 1.4 The Licensee shall agree to comply with the provisions of these GTC prior to the purchase of the license number. 2. Subject matter of the agreement: 2.1 PadMan is a software that provides graphic designers without any programming knowledge with the opportunity to create apps for Apple ipads in Adobe InDesign on Mac OS X. The PadMan software consists of three parts: the InDesign plug-in, the Mac OS X assistant and the royalty-bearing license for the app in order to enable an upload to the app store with the app. The software as well as any software updates shall be the Licenser s intellectual property and protected by copyright. The Licenser shall be entitled to all rights concerning publication, processing, copying, provision, and exploitation in this regard. 2.2 The PadMan software shall comply with the description in line with the menu item Help on the website The Licenser shall not owe any further features. Presentations such as in test programmes, in product descriptions and the like shall not be promises to provide certain features. Promises to provide certain features shall be expressly confirmed in writing. 2.3 The Licenser shall hereby grant a non-exclusive single license for the use of the PadMan software that is added, updated, or replaced, if required, by the software updates or system restore software provided by the Licenser (hereinafter jointly referred to as Software ). The Licenser shall remain the owner of the Software and reserve all rights not expressly granted to the Licensee in the following. 1 PadMan GTC

2 2.4 The Licensee is aware of the essential functional features of the Software. They shall bear the risk of whether it complies with their demands and requirements and shall ask for advice from the Licenser, their employees, or competent third parties in case of doubts prior to conclusion of the agreement. 2.5 The technical requirements to the contractual software as well as the range of functions shall be published by the Licenser on their homepage under the Help menu item. The Licensee has acquired the information on all the conditions and requirements necessary for the use of PadMan themselves. They shall be responsible for the selection and use of other software and hardware not expressly assessed as compatible by the Licenser in connection with the subject matter of the license agreement. 3. Scope of use: 3.1 The conclusion of the agreement between the contractual parties shall be effected by registration of the Licensee on the homepage of the Licenser payment of the indicated royalty via PayPal. The PadMan software may be downloaded after payment. Thereby, the Licensee shall receive the right to use the PadMan software immediately and non-exclusively during the contractual term according to these provisions. Cancellation of the agreement shall be excluded. 3.2 The Licenser shall be entitled to change, update, or revise the Software at their discretion and provide it to the Licensee for download free of charge. The Licenser shall grant the Licensee the single, non-exclusive license to use such updates of the Software potentially provided according to the conditions described below. 3.3 The Licensee shall be entitled to use PadMan as well as any changes and updates made (hereinafter referred to as Software ) via Adobe InDesign and on Mac OS X for the creation of an app for the Apple ipad. The Licensee shall be obliged to make sure that the app generated on the basis of the Software does not show any content suitable to violate the sense of justice and decency of all ethically and justly thinking people in society. The Licensee shall be the owner and sole person authorized to dispose of the apps developed with the Software. They shall be solely liable for the content of the app and especially that it does not violate any criminal law or other legal or contractual provisions or rights of third parties. They shall indemnify and hold the Licenser harmless in this respect. 3.4 The Licensee shall be obliged to conclude a new licensing agreement for each and every app to be developed. They shall be entitled to change the app created by them by using the Software, unless this establishes a new version. 2 PadMan GTC

3 3.5 The Licensee shall be entitled to make the app usable for their customers in addition to their own use on their ipad. In this case, they shall load it to the app store, offer it for download and comply with the guidelines for the app store use accessible under The Licenser shall not assume any liability in case of non-compliance with these guidelines by the Licensee. 3.6 The Licensee can carry out the upload to the app store themselves (do-it-yourself method) or commission the Licenser with the upload of the app to the app store (full service). In this case (full service), the Licenser shall not be obliged to inspect the content of the app. The Licensee shall be responsible for data backup of the app. The Licensee shall completely indemnify and hold the Licenser harmless in case of data loss or if the app is not accepted by the app store. The Licensee shall carry out any changes possibly required for acceptance in the app store independently. Then, they can commission the Licenser again with the upload of the app to the app store. This one new re-upload shall be made on part of the Licenser free of charge. 3.7 The Licensee shall not be entitled to any other form of use of the Software than the form described above. They shall especially not be entitled to publish, copy, decompile, reverse engineer, or modify the Software or any parts of it, make attempts to derive the source code, pass it on or make it accessible to third parties not authorized to use it or license it against payment or free of charge. 4. Term 4.1 This license agreement shall be applicable until its termination. If the Licensee violates one or several contractual provisions, the Licenser shall be entitled to terminate the rights to use the Software. 4.2 In case of termination, the Licensee shall delete the downloaded copy of the Software and any possible components of it and declare the termination of use in writing. 5. Warranty 5.1 The Licenser shall warrant that the Software provided for download is in operational condition for the use via Adobe InDesign and on Mac OS X. 5.2 The warranty period shall be six months. 5.3 The warranty claim shall only arise if the Licensee has notified any visible defects to the Licenser immediately and in writing. Such notifications of defects shall only be valid if they concern reproducible defects and are made in form of a written documentation (fax or shall apply as written notification in this regard). 5.4 The Licenser, who has been notified in this manner, shall announce an alternative, replace the defective software component or remedy the defect at their option if there is a defect present that 3 PadMan GTC

4 impairs the functionality and is based on a programming error. All costs accruing in connection with the correction shall be borne by the Licenser. 5.5 Any assistance, error diagnosis as well as the removal of defects and impairments the Licensee is responsible for shall be carried out by the Licenser against payment. The same shall apply to the removal of defects if any programme modifications, additions or other interventions have been made by the Licensee themselves or by third parties or if any software components are infested with computer viruses at the Licensee s. 5.6 The Licensee may only demand rescission of the agreement or reduction of the remuneration if and to the extent the improvement (possibly several times) of the defect finally fails despite a grace period of at least 30 days set in writing. Replacement of the costs for removal of defects by third parties (substitute performance) shall be excluded. 5.7 The Licenser shall not accept liability for errors, impairments, or damages based on non-compliance with installation requirements, improper operation, infection with computer viruses, use of unsuitable data carriers and the like. 5.8 The warranty immediately lapses if the Licensee or a third party not expressly authorized makes changes to the Software without the Licenser s written consent. Any invoices for this shall not be acknowledged. The original warranty period shall not be extended by works and deliveries covered by warranty. 6. Freedom of rights of third parties 6.1 The Licenser shall guarantee that the Software does not violate any rights of third parties which limit or exclude the contractual use of the Software. 6.2 If a claim is asserted against the Licensee on the basis of violation of intangible property rights of third parties due to the use of the Software or any part of it, the Licenser shall hold them harmless if the Licensee informs them about this fact immediately and leaves all negotiations to them. In case of justified claims of third parties, the Licenser shall at their discretion either acquire the necessary rights to the Software or parts of it for the Licensee or deliver an equivalent software or reimburse the royalties to the Licensee. 6.3 The Licensee shall not be authorized to issue any declarations of acknowledgement to third parties. The Licensee shall authorize the Licenser to represent the Licensee with respect to such disputes. 4 PadMan GTC

5 7. Liability 7.1 The Licenser shall only be liable for damages to the delivered Software itself or in case of intention, gross negligence, or culpable violation of essential contractual obligations. Other and further claims of the Licensee, especially for lost profit, consequential damages, economic losses, interest losses, and based on damages from claims of third parties also from the title of product liability against the Licenser shall in any case be excluded. 7.2 The amount of compensation shall in any case be limited to two times the royalty. 7.3 The liability for personal injuries and the statutory product liability shall remain unaffected by above-mentioned liability regulation. 7.4 If liability is limited, this shall also apply to the personal liability of employees, representatives, and vicarious agents of the Licenser. 7.5 The claims for damages shall become statute-barred after expiry of the period of time named in 5.2. In case of intentional violation or grossly negligent breach of duty and fraudulent concealment of defects as well as claims for damages according to the Product Liability Act, the statutory statute of limitations shall apply. 8. Data protection 8.1 The data protection provisions in the valid version of the data protection act shall be observed. The Licensee shall agree that their data may be stored by the Licenser and processed for their own purposes. This consent may be revoked by the Licensee at any time in writing by sending an to 8.2 The Licensee shall expressly agree to be informed about campaigns of the Licenser by fax, or by mail, also in form of bulk mailing and also for advertising purposes. The Licensee may revoke this consent at any time in writing as well. 9. Place of performance, place of jurisdiction, applicable law, severability clause: 9.1 Place of performance for both contractual partners shall be the Licenser s place of business in Graz. 9.2 Place of jurisdiction for all disputes based on agreements with the customer shall be the relevant court at the Licenser s place of business. 9.3 Austrian law shall apply. The United Nations Convention on Contracts for the International Sale of Goods shall be excluded. 9.4 Should individual conditions of this agreement be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provisions shall be replaced by such 5 PadMan GTC

6 provisions that come closest to the economic purpose of the agreement in consideration of the mutual interests. 6 PadMan GTC