TIXEL GmbH - Terms & Conditions
Contents
1. Agreement be tween TIXEL and Customer and subject to the conditions therein 6 License Restrictions 1 Customers are not entitled to grant any sublicenses lease lend or in any way including Application Service Providing ASP let anyone else whether directly or indirectly or against compensation or free of charge use or in any way dispose of the Software provided however that nothing herein shall prevent the Customer from using the Software in its ordi nary course of its business Exemptions are provided only for distribution partner on the basis of an Original Equipment Manufacturer Agreement or a Software Reseller Agreement 2 Customer are not entitled to use copy or in any other way transfer or use the Software in any manner except as stated in the License Agreement as well as these Terms amp Conditions 3 Copies of the Software may be made for purposes expressly permitted by the License Agreement as well as for safety or archival purposes only and for no other purpose whatsoever These Terms amp Conditions shall apply also to such copies All copies on removable media such as CD have to be marked with copyright notices and to be made inaccessible for third parties 4 Customers may not modify reverse engineer decompile or disassemble the Software or information or material con nected to the Software except to the extent expressly permitted by mandatory law TIXEL GmbH General Terms amp Conditions 2of5 Ap2. Customer does not have the right to a lien and plea for the unfulfilled contract unless the counterclaims are based on the same contractual relationship 5 Software License Terms 1 TIXEL retains all right title and interest including all copyright and Intellectual Property rights in and to the delivered Software and all copies thereof 2 TIXEL grants to the Customer a limited non sublicensable non transferable nonexclusive License to use the Software in accordance with the terms of the correspondent License Agreement and subject to the TIXEL Terms amp Conditions set forth herein 3 Unless otherwise explicitly agreed upon in writing the Customer initially receives a provisional License on a temporary ba sis which will be replaced by a full and permanent License after full payment of the sales price according to the valid Li censing Terms 4 Software usually is activated by delivery of a license key or entitlement system which may be designed to allow use of the Software in compliance with the scope of the License granted and termination of the License for non compliance with the applicable License Further licensed Software may contain a metering or instrumentation capable of verifying license entitlement and transmitting reports or statistics on the Software usage to TIXEL or a third party engaged by TIXEL to col lect any such reports or statistics 5 Documentation pertaining to the Software written information whether
3. contained maintenance policies user or technical manuals training materials support policies specifications copyright attributions or otherwise will be made available by TIXEL with the Software in any manner including on CD via email on the website or other on line format and contain software functionality and service descriptions according to the valid Licensing Terms It will be updated or amended by TIXEL from time to time Any public statements or advertisements do not represent an indication of quality and do not imply any form of guarantee 6 Modifications to the Software as well as new releases which are not free updates as determined in TIXEL s sole discretion such as those providing enhanced functionality or performance or that otherwise improve or add to delete or otherwise modify any aspect of the Software are only available if the Customer purchases additional Maintenance Services to the Software by signing a Software Maintenance Agreement 7 These Terms amp Conditions remain applicable to the Software including all modifications e g patches updates and up grades hereto 8 With licensing of Software TIXEL provides no other rights to Customer not expressly set forth herein including any rights to maintenance and support training or other development services relating to the Software Any rights of Customer to any such services shall be solely as provided separately in a Service Support and Maintenance or other
4. on them He is also obliged to notify TIXEL immediately of any attachment of the products by a third party or of any damage to the products or loss of products suffered 4 Payment Terms 1 All deliveries and services from TIXEL are subject to the terms of payment as stated on the invoice Invoices will be deemed to have been accepted by the Customer unless no objection had been made within 14 days 2 If nothing to the contrary has been expressly agreed in writing all TIXEL prices are ex works excluding packaging plus the statutory rate of value added tax 3 Unless otherwise stated all invoices issued by TIXEL are due and payable without deduction within fourteen 14 days of the date of the invoice via direct bank transfer on the account of TIXEL stated on the invoice 4 Unless prices have not been expressly agreed as fixed prices they are subject to adjustments due to changes in wages materials and sales costs for deliveries that take place three months or more after conclusion of the contract 5 With respect to amounts that are not paid on time TIXEL reserves the right to charge dunning costs as well as default in terests at a value of five percent 5 over the respective rate of discount of the European Central Bank or if less the maximum amount allowed by applicable law 6 Customer has no right to charge amounts with counterclaims unless it is determined that the claim is undisputed or has been validated by a court
5. take adequate precautions to counter situations where the program does not operate properly in whole or in part In order to avoid data loss the Customer is solely responsible for protecting and backing up the data and information stored on the computers on which the Software is used and should confirm that such data and information is protected and backed up before contacting TIXEL for technical support 8 Warranties amp Limitation of Liability 1 2 7 TIXEL provides products as is to be used in accordance with the respective product description and user manual It shall be emphasized that given the present state of the art it is technically not feasible to produce software or hardware that meets all conceivable combinations of applications and that are fully protected against any external intentional manipula tion TIXEL disclaims all warranties and representations express or implied including the implied warranties of non in fringement merchantability and fitness for a particular purpose TIXEL shall be liable solely for a breach of an essential contractual obligation on whose fulfillment the Customer may reasonably rely on cardinal obligation TIXEL s warranties shall be limited to typical contractual foreseeable damages with regard to services on a monthly basis at the maximum up to the respective monthly fee TIXEL shall not be liable for loss of Customer s data content or other information in connection wi
6. TIXEL GmbH General Terms amp Conditions for Business Customers Non legally binding translation of German AGB www tixeltec com agb 1 Applicability General Scope 1 These Terms amp Conditions are applicable to all present and future business relations between TIXEL GmbH hereafter TIXEL and its business customers as defined in 14 BGB hereafter Customers together the Parties 2 These Terms amp Conditions are applicable to all quotations deliveries and services hereafter deliveries supplied by TIXEL 3 Any conflicting or deviating terms are rejected by TIXEL unless TIXEL has explicitly agreed to in writing 4 All subsidiary or other agreements as well as amendments and modifications to these Terms amp Conditions are subject to written confirmation by TIXEL 2 Quotations amp Orders 1 By placing an order the Customer submits a binding offer to conclude a contract with TIXEL The Customer hereby con firms that it understands and agrees to be bound with respect to all use and handling of the ordered goods or services by the then current TIXEL Terms amp Conditions which may be reviewed on the TIXEL website www tixeltec com tac 2 All orders are subject to approval and acceptance by TIXEL which will be made either by written declaration or by deliv ery and invoicing of the ordered goods or services A confirmation of receipt does not constitute a binding acceptance of an order 3 Quotations c
7. alculations drawings sketches cost estimates and other documents attached to proposals or order confir mations remain the exclusive property of TIXEL The Customer shall use these documents only for the agreed purpose and shall not duplicate them without TIXEL s agreement These documents and all copies made thereof may not be dis closed to any third party and shall be returned to TIXEL or destroyed on request 4 TIXEL is constantly improving and refining its products and services to provide new features to its Customers and to en sure its Customers always get the top of the line products Deviations of the supplied product from the ordered product are therefore admissible as far as they are reasonable in relation to the Customer 3 Shipping Policy 1 TIXEL products shall be delivered in accordance with what is stated in the order form unless it conflicts with these Terms amp Conditions TIXEL products may be delivered as software package virtual appliance or hardware appliance hereafter products Partial deliveries shall be permitted if this is reasonable for the Customer and nothing else was expressly agreed upon 2 Software packages as well as virtual appliances usually are made available to download from TIXEL servers or will be de livered on removable media such as CD DVD or USB flash drive 3 Hardware appliances TIXEL Software including operating system and hardware will be physically delivered subject to the shippin
8. are by the Customer Upon any termination the Customer must return or destroy the Software Materials in its possession together with all copies in the realistic manner stipulated by TIXEL 7 Customer s Responsibilities 1 2 At delivery the Customer shall examine the functionality and quality of the Software If the Customer concludes that the Software considerable deviates from the agreed specifications or requirements for the Software the Customer shall notify TIXEL in writing within fourteen 14 days of delivery with all available details regarding the alleged Defect If at any other time the Customer discovers such item was not as warranted as described herein it also shall notify TIXEL promptly at least within 14 days in writing In order to take advantage of the fully scope of service of TIXEL products as to reliability and performance commitments the Customer has to maintain a proper and adequate environment such as specific hardware and software requirements and use the TIXEL products in accordance with the instructions furnished The Customer is solely responsible for setting up an appropriate technical infrastructure and shall properly train its personnel in the use and application of TIXEL Soft ware or systems The Customer agrees to test all modules and applications of the Software thoroughly within the specified environment with regard to usability and reliability before starting any operative use The Customer shall
9. e or storage or to other than normal use of service TIXEL assumes no liability for services or performances offered by third party suppliers as well as for technical malfunc tions for which TIXEL may not be held responsible TIXEL explicitly assumes no liability for a external DNS and routing problems interferences of telecommunication connectivity temporary server failure or overload as well as external attacks DDoS viruses on TIXEL s or a third party s network or mail infrastructure b Failures on the part of the Customer e g by incoming outgoing hacker attacks DDoS due to incorrect or insufficient maintenance of Customer systems c Failures caused by improper use or repair of Customer hardware or software or that result from improper operation of Customer systems Neither party shall be liable to the other in any manner whatsoever for any decisions obligations costs or expenses in curred changes in business practices plans organization products services or otherwise based on either party s deci sion to use or rely on any information exchanged between the parties TIXEL shall have the right to terminate the License with immediate effect and claim damages in case of a seriously breach of contractual obligations by the Customer e g if payments are overdue for at least 4 weeks or if the Customer fails to fulfill its major material obligations under 6 License Restrictions or 7 Customer s Responsibilities of the
10. g conditions as described hereafter 4 Whilst TIXEL makes every effort to deliver ordered products within the quoted timescale delivery dates are only estima tions The Customer shall be entitled to claim liquidated damages for delayed delivery only after written request within a reasonable time and in so far as it can be proved that the delay has been caused through the fault of TIXEL and that the Customer has suffered a loss as a result of such delay 5 Damages for delayed delivery shall not exceed per cent of the net contract price of the part of the supplies in delay for every full week s delay and shall in no case whatsoever altogether exceed 10 000 EUR No damages at all shall be due for the first two weeks of delay Liability due to intend or gross negligence remains unaffected hereby 6 The delivery time shall be reasonably extended if hindrances occur which TIXEL cannot prevent despite using the re quired care regardless of whether they affect TIXEL or the Customer or a third party Such hindrances include but shall not be limited to epidemics mobilization war revolution serious breakdown in the works accidents labor conflicts late or deficient delivery by subcontractors of raw materials semi finished or finished products the need to scrap important work pieces official actions or omissions by any state authorities or public bodies natural catastrophes acts of God 7 In so far as such adaptation exceeds 2 months or i
11. ion time and is unable to guarantee that all problems or issues can be resolved or addressed Customer acknowledges and agrees that TIXEL s ability to provide Maintenance Services is dependent on Customer timely providing accurate product installation location information and any failure to do so may impact TIXEL s ability to provide the Service Remote access to the Software on Customer s network may also be required to diagnose or resolve a Maintenance problem Customer acknowledges that Customer s failure to provide such access may impact TIXEL s ability to resolve the problem Software updates are provided only for standard hardware platforms and operating systems supported by TIXEL in accor dance with TIXEL s product specifications Customer is responsible for making or arranging for updates to interfaces for nonstandard devices or Customer applications If TIXEL fails to fulfill its obligations under a Maintenance Agreement despite repeated reminders Customer s sole and ex clusive remedy is the right to terminate the Agreement immediately for the affected Software and to claim pro rata reim bursement of prepaid Maintenance Fees TIXEL will not be obligated to provide any Maintenance a on Software that i have been altered modified mishandled or damaged ii have not been installed operated re paired or maintained in accordance with TIXEL s product specifications documentation and instructions or iii have been mi
12. ithout previous written consent of the other party not make these documents available to any third party either in whole or in part nor use them for purposes other than those for which they were handed over The confidentiality obligation will remain in force after the expiry of the License and these Terms amp Conditions for five years following disclosure of information Confidential Information shall not include information which is or becomes generally available to the public other than as a result of a disclosure by the receiving party which was available to the receiving party on a non confidential basis prior to its disclosure by the other party or which became available to the receiving party on a non confidential basis from a third party The Customer acknowledges that TIXEL stores and uses information relating to it for service and record keeping purposes only and based on German data protection rules TIXEL reserves the right to denote Customer s name and logo as reference in publications free of charge unless Cus tomer explicitly disagrees in writing 12 Miscellaneous 1 3 4 TIXEL may modify these Terms amp Conditions at any time without notice Thereafter any new agreement will be made sub ject to the amended Terms amp Conditions Existing contracts will initially remain unaffected by the changes They will be come also an integral part of existing contracts upon renewal extension or amendment of same u
13. le to continue such service The term of a respective Maintenance Agreement shall begin on delivery of Software renewal date and will continue for twelve 12 consecutive months It may be terminated by either party upon written notice thirty 30 days prior to the end of the term identified herein Otherwise it will automatically be extended by a further 12 months at the then current fee TIXEL will invoice Customer for the respective Maintenance Fee annually and in advance on the first day of each Contract Year Maintenance fees are nonrefundable If Customer wishes to reinstate lapsed Maintenance TIXEL reserves the right to charge a Reinstatement Fee of up to one annual Maintenance Fee additionally to the then current Maintenance Fee Customer may not assign the rights granted by a TIXEL Maintenance Agreement or any of them without the prior writ ten consent of TIXEL It is in particular expressly agreed that Customer shall remain the sole contact of both TIXEL and the End User if different from Customer TIXEL shall provide Maintenance Services exclusively to Customer TIXEL will use commercially reasonable efforts to provide corrections or workaround solutions for any problem or issue re ported and determined to be in the Software or the documentation at no cost to Customer for the term of this Agree ment While it is TIXEL s goal to provide an acceptable resolution for incoming problems issues and incidents TIXEL can not predict a resolut
14. nless Customer explic itly disagrees in writing within 30 days after notification of such a change If any provision of these Terms amp Conditions is unenforceable the remaining provisions shall to the extent possible be carried into effect taking into account the general purpose and spirit of this Agreement This Agreement shall be governed by and construed in accordance with the laws of Germany and the parties hereto sub mit to the exclusive jurisdiction of the court of Hannover Germany to settle any disputes or claims which may arise out of or in conjunction with this Agreement In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods TIXEL and TlXstream are registered trademarks TIXway TIXpipe TIXcustom and RWTP are trademarks or trademarks of TIXEL in the United States Germany and other countries All such trademarks trade names and service marks are proprietary to TIXEL and may not be used in connection with any product or service that is not TIXEL s in any manner that is likely to cause confusion among Customers or in any manner that disparages or discredits TIXEL without TIXEL s written permission All other trademarks product names and company names and logos are the property of their respective owners TIXEL GmbH Hannover April 24 2015 TIXEL GmbH General Terms amp Conditions 5 of 5 April 24 2015
15. replacement by TIXEL fail within reasonable time the Customer may cancel the contract or de mand a price reduction Upon termination the Customer must return all supplied products including all copies to TIXEL within 14 days but not before a return authorization had been obtained from TIXEL The applicable warranty period shall be 12 months after delivery of Software unless the parties have otherwise mutual agreed to in writing Warranty claims against TIXEL are not transferable and can be made valid only by the Customer These Warranties shall not apply a to TIXEL Evaluation Licenses provided under a Software Evaluation Agreement SEA to a Reseller or Customer for a defined evaluation period and made available for test purposes only b to installed products which are not installed or used to TIXEL s specifications to products which have been repaired or altered by others than TIXEL without TIXEL s prior written consent TIXEL GmbH General Terms amp Conditions 3of5 April 24 2015 8 9 10 d to consequential damages caused by negligence misuse abuse accident or damage by circumstances beyond TIXEL s control including but not limited to lightning flood electrical surge tornado earthquake or any other cata strophic events beyond TIXEL s control e to consequential damages that may result from improper operation connected equipment failure or malfunction in adequate packing or shipping damage maintenanc
16. ril 24 2015 5 Marking and or information regarding patent copyright or copyright notices in Software or computer media through which the Software is accessible to the Customer may not be removed changed or modified in any way The same ap plies to corresponding marking of all documentation provided by TIXEL The Customer may use access display run or otherwise interact with as many copies of the Software as corresponds to the number of user licenses The Customer may store or install a copy of the Software on a storage device such as a net work server used solely to run the Software on the Customer s other computers over an internal network however the Customer must acquire and dedicate a License for each separate computer that may access the Software from the stor age device The Customer shall introduce routines and control functions in order to ensure that the number of computers that may access the Software do not exceed the number of Licenses granted according to the Order Form Customer is obligated to inform TIXEL about changes in the use of the Software and to acquire additional Licenses if necessary TIXEL retains the right to charge up to twice the license price for the time of improper use of licensed Software if the Cus tomer missed to inform TIXEL about same TIXEL furthermore reserves the right to terminate the License with immediate effect and to claim further damages in case of the knowingly improper use of licensed Softw
17. s economically not justifiable both parties shall be entitled to termi nate the contract or the parts affected thereby If a party wishes to terminate the contract it shall after having recog nized the consequences of the event immediately inform the other party 8 All deliveries will be made ex works Subject to TIXEL s right of stoppage in transit delivery of the products to the carrier shall constitute delivery to Customer and title and risk of loss shall thereupon pass to Customer 9 Selection of the carrier and delivery route shall be made by TIXEL unless specified by Buyer TIXEL s liability with regard to packaging and dispatch is limited to premeditation and gross negligence 10 On the Customer s request TIXEL will cover the delivery with transport insurance the costs accrued thereby shall be at the Customer s expense 11 All delivered products shall remain the property of TIXEL until the sales price has been paid in full including related costs and charges 12 During the period of the reservation of title the Customer shall at its own cost maintain the supplies and insure them for the benefit of TIXEL against theft break down fire water and other risks It shall further take all measures to ensure that TIXEL s title is in no way prejudiced TIXEL GmbH General Terms amp Conditions lof5 April 24 2015 13 The Customer is not permitted to provide reserved products as security or lien or to create any other charge
18. se Terms amp Conditions The Customer then shall not be entitled to any refund of the license fee irrespective of the reason for termination of the License Upon any termination the Customer must return or destroy the Software Materials in its pos session together with all copies in the realistic manner stipulated by TIXEL 9 Software Maintenance 1 2 3 4 5 10 11 Customer may purchase additional Maintenance Services to licensed TIXEL Software TIXEL provides support services in response to specific Customer inquiries as well as by way of general patches updates and upgrades as applicable Main tenance scope and contents will be defined in a separate document and be annexed to the correspondent invoice Customer is entitled to receive Maintenance Services only on Software for which it has purchased Maintenance Services Services commence upon sale of the applicable Software by TIXEL New Maintenance Service Agreements are offered only for the most current generally available releases of the Software Subject matter of the contract is the last to Customer delivered and generally available release of the respective Soft ware The acquisition of upgrades will automatically extend the scope of a Maintenance Agreement which may require adjustments of the corresponding Maintenance Fees TIXEL reserves the right to discontinue service of older releases where it deems it no longer necessary or commercially viab
19. sused or operated outside of the environmental specifications for that Software b where the problem relates to Customer s or a third party s network systems hardware software or other problem beyond the reasonable control of TIXEL TIXEL GmbH General Terms amp Conditions 4of5 April 24 2015 12 TIXEL s obligations under any Maintenance Service Agreement with respect to any Software are subject to TIXEL s duly receipt of the applicable License Fee as well as the annual Maintenance Service fee 13 TIXEL retains ownership of any Intellectual Property resulting from Support Services 10 Additional Support Services 1 2 Customer may purchase further services to TIXEL products not covered by a Maintenance Agreement These may include a Priority response times b On site support amp training c On site installation and configuration of TIXEL products installation of operation systems and configuration of server dedicated for TIXEL Software Standard terms and rates as well as individual quotations are available on request 11 Confidentiality 1 3 4 5 Data provided between TIXEL and its business partners such as quotations calculations drawings or any technical docu ments are only binding in so far as having been expressly stipulated as such Each party retains all rights to such docu ments provided to the other The party receiving such documents recognizes these rights and shall w
20. th the use of the Software as a result of Customer s negligence to appropriate protecting and backing up of data content and other information In no event TIXEL shall be responsible to or liable to Customer or any third party whether in contract warranty tort including negligence or otherwise for any damages including but not limited to incidental special indirect or consequential damages that include but are not limited to damages for any loss of profit revenue or business as a direct or indirect result of Customer s access and use of TIXEL Software Without limiting the foregoing TIXEL shall be liable pursuant to legal provisions only in case of intent or gross negligence In case of a defect TIXEL will provide the Customer with appropriate support within reasonable time from the date Cus tomer has notified TIXEL in writing of the defect TIXEL shall repair or replace the product at the Customer s option and free of charge If the Customer s choice is impossible or involves a disproportionate effort the Customer is eligible only to the other option of supplementary performance The foregoing warranties cover only reimbursement for expenses which may be incurred in connection with repair or replacement at the original contractual place of performance If case of a repair or replacement TIXEL will be liable for the new or improved product according to the Terms amp Condi tions of the original product If attempts for repair or
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