Quality First Software GmbH
Revision 1.3 of January 1, 2012
1. Contractual Basis
1.1 Preamble
Quality First Software GmbH (QFS) is a company developing and
distributing software designed to help in testing and thus enhancing
other software. A software product of QFS is the program QF-Test.
QF-Test is a test tool for programs with a graphical user interface
based on technologies listed on QFS' website.
This Leasing Agreement provides the regulations for making QF-Test
available for the term agreed between the parties. QFS hereby
explicitly object to any counter-confirmations referring to the
General Terms and Conditions of Business of contractual partners
(Licensee). The foregoing shall also be applicable if submittal or
acceptance of offers by contractual partners is made subject to the
prior applicability of their own General Terms and Conditions of
Business.
1.2 Exchange Agreement
This Agreement shall be the basis for the exchange of services.
However, such exchange shall not create any corporate relationship
between QFS and the Licensee.
1.3 Assignment of Rights and Obligations
QFS may transfer any of the rights and obligations under this
Agreement to third parties at any time. Licensee may not assign or
sublicense the rights granted under Section 2 below without prior
written approval by QFS.
2. Content of Services
2.1 Granting of License
QF-Test is software protected by copyright. QFS is entitled to grant
to third parties rights of utilization and commercial exploitation to
QF-Test. On the basis of this License Agreement, the Licensee shall be
granted a non-exclusive right of utilization limited in time. Such
right of utilization shall be limited to the actually purchased
version, which means new versions must have a new license. Moreover,
the right of utilization shall be limited to the number of licenses
specified in the respective purchase order and the locations and/or
networks mentioned therein. Simultaneous use of QF-Test shall be
limited to the number of licenses specified in the purchase order. The
use of QF-Test shall be limited to internal purposes of the Licensee.
It must not be passed on to any third parties. The standard License
Agreement transmitted together with the software does not apply to
this leasing model.
QFS shall make available a free test version to non-registered
Licensees. As a rule, the license granted therefore shall be identical
with the license for the full version. However, the use of the test
version shall be subject to a time limit and may be limited in other
ways at the sole discretion of QFS. Furthermore, there is no
obligation to provide any manuals, documentation, updates and/or
support for the test version.
2.2 Delivery / Installation
QF-Test shall be exclusively distributed on the Internet as downloads.
The Licensee shall have full responsibility for the installation and
the functioning of the software on the computers and networks operated
by the Licensee. QFS is under no obligation to provide any
installation services.
2.3 Manuals / Documentation
Any manuals and the entire documentation for QF-Test shall be made
available as HTML and/or PDF files in German and English. The Licensee
has no entitlement whatsoever to be provided the mentioned
documentation as hardcopy.
2.4 Updates
QFS is free to make available minor updates (bundling of several error
corrections in one version) for QF-Test free of cost at its
discretion. The Licensee shall not have any entitlement to such
updates. The obligations imposed on QFS by statutory warranty
regulations shall not be affected by the foregoing (sub-clause 3.1).
New versions of QF-Test will be made available by QFS at its
discretion in the form of medium upgrades (version with additional /
enhanced functions) or major upgrades (version with substantially
enhanced volume of functions) at the conditions indicated at QFS' then
current website.
2.5 Support and Maintenance
Support and Maintenance beyond the statutory warranty obligations in
sub-clause 3.1 are not subject to this Agreement and have to be agreed
between Licensee and QFS separately. QFS offers a standard Software
Maintenance Agreement to that end.
3. Securing of Services
3.1 Warranty
QFS is obliged to cure any deficiencies in QF-Test within a reasonable
period of time after Licensee has given QFS notice of such defect. In
case of defective products, QFS is free to decide whether it will
remedy the defect or supply a product free of defects. QFS is entitled
to circumvent a possible defect if the defect as such can only be
remedied at a disproportionally high expense, provided such
circumvention does not substantially impair the use of the product in
line with its purpose and is reasonable for the Licensee.
If remedy of defect fails within a reasonable period, or if it proves
abortive again after a further reasonable period of grace set by
Licensee, or if QFS declares in writing that it relinquishes the
remedy of the defect, then Licensee is entitled to the further legal
warranty rights in accordance with the following provisions.
Licensee is only entitled to terminate the License Leasing Agreement
due to non performance by QFS after QFS has been given a reasonable
period for cure of defects and QFS has failed to cure such defects.
Licensee is not entitled to reduce the price by deducting certain
amounts from the price agreed between the parties except for defects
which are undisputed or recognized by declaratory judgment.
Licensee's warranty rights are excluded if changes to the product or
attempts to repair the product have been made by Licensee without
prior written approval by QFS. Licensee is entitled, however, to
explain and prove that such changes and/or attempts of repair are in
no connection with the occurred defect, and do not substantially
complicate the analysis as well as the removal of the defect.
Exclusion of warranty does not extend to changes to which Licensee is
entitled - especially in view of self-help - provided such changes
have been done professionally and are documented traceably.
Licensee will support QFS in analyzing and removing the defect,
prepare and/or print supporting information on QFS' request, as well
as provide further information, if any, to support analysis and
removal works, and grant immediate access to the documents revealing
further details of the occurrence of the defect.
Strict liability under Sec. 536a clause 1 German Civil Code/BGB for
defects existing at the time when entering into the agreement is
excluded.
3.2 Limitation / Exclusion of Liability
3.2.1 QFS is liable without contractual restrictions in accordance with statutory regulations:
- for damages based on a breach of a guarantee provided by QFS;
- for willful misconduct;
- for damages based on the fact that QFS has fraudulently concealed a defect;
- for damages arising from injury to life, body or health caused by an intentional or negligent breach of duty by QFS or otherwise on the intentional or negligent conduct by a legal representative or a vicarious agent of QFS;
- for damages other than those listed under indent 4 based on intentional or grossly negligent breach of duty by QFS or otherwise on the intentional or grossly negligent conduct by a legal representative or a vicarious agent of QFS.
- pursuant to the terms of the German Product Liability Act.
3.2.2 In cases other than those listed in 3.2.1, QFS' liability for
negligent breaches of Cardinal Duties by QFS or by a legal
representative or agent of QFS shall be limited to such damage which
was typical for this kind of business and foreseeable upon the
execution of this Agreement. Cardinal Duties shall mean duties which
enable the performance of the Agreement i.e. are precondition of the
performance of the Agreement and which the Licensee may therefore rely
on. Typical and foreseeable is a damage which QFS has foreseen as a
potential consequence of a breach of duties or - taking into
consideration the circumstances QSF was or should have been aware of -
QFS should have foreseen.
3.2.3 In cases other than those listed in 3.2.1 and 3.2.2 the
liability of QFS for negligence is excluded.
3.2.4 The plea of contributory negligence (sec. 254 German Civil
Code/BGB) remains unaffected. The Licensee is especially obliged to
make backup copies and to provide sufficient and up to date anti-virus
protection. Backup copies have to be made regularly and to an extent
that is appropriate when considering the usage and the risks,
typically once a day in order to ensure restoration of data with
reasonable time and effort. In case of loss of data, QFS' liability is
limited to the restoration expenses that would have arisen if backup
copies had been made regularly and where anti-virus protection had
been in place.
3.2.5 The foregoing provisions regarding the limitation of liability
apply to all contractual and non-contractual claims for damages
against QFS regardless of their legal grounds and accordingly to the
liability of QFS to compensate futile expenses.
3.3 Copyright
QFS shall be entitled to the copyright as well as any proprietary,
utilization and commercial exploitation rights resulting thereof to
any and all materials capable of being protected by copyright that are
made available to the Licensee in connection with the granting of
license. Any granting of rights shall be made exclusively in the form
as described in sub-clause 2.1 above. Any violations of copyright
shall be brought before the court by QFS both under civil and criminal
law.
4. Performance of the Agreement
This Agreement is concluded with the acceptance of the present License
Leasing Agreement by the Licensee. A license file limited to two
months will be transmitted with the ordered product. Once full payment
has been made, a license file for the term agreed between the parties
will be transmitted.
The term of this License Leasing Agreement is subject to the agreement
between the parties. Have the parties agreed upon a limited term, the
Agreement automatically starts and ends with the date agreed. In this
case the right to terminate the Agreement with notice is excluded.
License fees shall become due for the full term in advance on the date
on which they are invoiced by QFS.
Otherwise, the following shall apply in accordance with the provisions
of QFS' Software Maintenance Agreement: The base term is one year and
commences on the date on which the Agreement is invoiced by QFS.
Termination by the end of the base term is possible by giving three
months' notice in writing to take effect by the end of the respective
month. In the absence of termination in due time, the Agreement shall
be renewed for further one year's periods each time. Termination upon
the expiration of the base term is possible at any time by giving
three months' notice in writing to take effect by the end of the
respective month. License fees shall become due for one year in
advance on the date on which they are invoiced by QFS.
The right to immediate termination remains unaffected. In case QFS
severely and materially breaches this License Leasing Agreement,
Licensee is only entitled to immediate termination of this License
Leasing Agreement after a reasonable period for cure has lapsed
without QFS having cured the severe material breach.
Immediate termination of this License Leasing Agreement is only
possible in writing. After termination of this License Leasing
Agreement, Licensee is obliged to fully and permanently delete any and
all copies of QF-Test, manuals, documentation and installation. Any
use of QF-Test after termination of this License Leasing Agreement is
prohibited.
5. General Provisions
5.1 Choice of Law and Venue
This Agreement is exclusively governed by German law. Should German
law make reference to foreign jurisdictions, this reference is
excluded. The application of the UN Sales Convention is explicitly
excluded.
In case the parties are merchants, legal entities under German public
law or special assets under German public law, the exclusive venue
shall be QFS' seat of business. The same applies in case one party
does not have a legal domicile in Germany. It is at QFS' discretion to
bring charges forward also at the other party's seat of business in
cases stated in this paragraph.
5.2 Written Form
Any modifications of and/or amendments to this Agreement, as well as
all other statements of legal import of both parties, shall only take
effect if made in writing or simple text without signature (e.g.
email, or facsimile). The same applies to modification of this clause;
abandoning the formal requirement requires an agreement in writing or
simple text without signature.
5.3 Interpretation of the Agreement
If any of the provisions of this Agreement should be or become
invalid, ineffective or unenforceable, that will not affect the
effectiveness of the remaining provisions. The same applies to any
gaps in individual provisions and/or parts of this Agreement.
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