Quality First Software GmbH
Revision 1.7 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 Purchase Agreement governs the permanent sale of QF-Test. 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 unlimited 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
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 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
Any defects found must be notified to QFS in writing within a period of 30 days after detection.
The notice of defects must include a description in as much detail as possible.
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 removed at a disproportionally high expense, if the use of the product in line with its
purpose is only insubstantially impaired and if this 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, including but not limited to the reduction of the purchase price or the rescission from
this license agreement.
QFS is no longer obligated to provide warranty 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.
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 Statute of Limitation
3.3.1 Without contractual limitation the statutory provisions apply for
a) Licensee's claims against QFS in case of liability due to intent;
b) Licensee's claims against QFS in case of QFS' deceit regarding defects or where QFS has given a guarantee regarding the quality of a product;
c) claims due to supplier's recourse when finally delivering to a consumer (Sec. 479 German Civil Code/BGB);
d) Licensee's claims for damages:
- based on an intentional or grossly negligent breach of obligation by QFS or an otherwise intentional or grossly negligent conduct of a representative or a vicarious agent of QFS;
- resulting in the injury of life, the body or health which are caused by an intentional or negligent breach of obligation by QFS or an otherwise intentional or negligent conduct of a representative or a vicarious agent of QFS;
- based on the German Product Liability Act.
3.3.2 In cases other than those listed in 3.3.1, the limitation period for claims of the Licensee
due to defects of the goods is one year after delivery of the software.
3.3.3 QFS' rectification of defects for the software does not inhibit the statutes of limitation
nor do these statutes of limitation start anew in case of such rectification.
3.4 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 shall take effect on the acceptance of the present License 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 unlimited in time will be transmitted.
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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