General Delivery and Payment Terms
1.1. These general terms of delivery and payment are exclusively applicable to the business relationship for its entire duration. Olympus shall not recognise any conditions of the Customer which are in conflict with or deviate from these conditions unless Olympus has expressly agreed to these in writing. These general terms of delivery and payment shall also apply should Olympus unconditionally execute a delivery to the customer in full knowledge of the conflicting or deviating terms of the customer.
1.2. All agreements concluded between Olympus and the customer for the purposes of execution of this contract are to be set down in writing in this contract. Any subsidiary oral agreements which are in conflict with the content of the written agreement shall only apply if confirmed in writing by Olympus.
2. Quotations and Orders
2.1. Olympus quotations shall always be non binding.
2.2. Although in principle, contracts with Olympus only come into force once Olympus has issued a written confirmation, they also come into force with the commencement by Olympus of the execution of an order. Olympus’ confirmation of order or, where no such confirmation of order exists, Olympus’ quotation, is authoritative for the content of the contract.
2.3. Olympus reserves the right to make technical, and design changes, in particular improvements, even after confirming an order, in so far as this is reasonable for the customer.
2.4. Where a declaration by Olympus exists that has been designated as a description of a service or product, this description conclusively and completely specifies the characteristics and qualities of the supplied product or service. In cases of doubt, these types of descriptions, illustrations, references to DIN/ISO standards etc. should not be assumed to constitute receipt of a warranty. In cases of doubt, only explicit written declarations by Olympus are authoritative in terms of receipt of a warranty.
3.1. Prices are indicated in Euro or in another agreed currency and do not include Value Added Tax (VAT). VAT shall be invoiced at the currently valid rate.
3.2. Prices shall be calculated on the basis of the prices in effect on the date of delivery/performance, in so far as no agreement to the contrary has been made.
3.3. Should the customer desire an uncustomary mode of dispatch, e.g., express delivery, the additional costs shall be charged to his account.
3.4. Prices quoted shall apply free delivered to the customer, including normal packaging and forwarding costs. For orders with a net invoice value of under 200 (two hundred) Euro a flat rate of 5 (five) Euro shall be charged for postage and packaging costs. These charges shall not apply to follow-up deliveries from a larger total order.
4. Terms of Payment
4.1. Invoices are payable no later than by the due date indicated in the invoice. Payment shall be made without any deduction and free of all charges. No deduction of a discount is permitted unless such discount was expressly agreed upon. Should the deduction of a discount be stipulated in the respective quotation/agreement or in the respective invoice, such discount is granted only if and to the extent that at the date of receipt of payment no balance is due in favour of Olympus. In case of repairs and deliveries of spare parts the possibility of deduction of a discount is excluded.
4.2. Payments are regarded as having been made on the day that these sums are at the disposal of Olympus.
Cheques are accepted as payment but are subject to the customary reservations. Promissory notes are only accepted after prior agreement and only as payment subject to the customary reservations. All costs arising in connection with cheques or promissory notes are borne by the customer.
4.3. The customer is only entitled to offset amounts in commercial transactions if his counterclaim has been legally established, uncontested or is recognised by Olympus. The customer shall have no right to redebit or retain monies unless this is based on the same contractual relationship.
4.4. In the event of default in payment, the customer shall be obliged to pay interest for default as of the date on which he de-faults on payment, which annual interest shall amount to 10% above the applicable base rate of the European Central Bank and shall be no less than 12%. The right of Olympus to demonstrate a higher loss and the right of the customer to demonstrate a significantly lower loss remain unaffected. In any case the customer shall be liable for statutory default interest. No interest is payable on down payments and advance payments. Olympus shall also be entitled within reaso-nable limits to withhold deliveries, even those from different orders, and to perform delivery only against prepayments or on a cash-on-delivery basis.
4.5. Notwithstanding the rights contained in these terms of delivery and payment, Olympus’ legal rights in respect of default of payment and ability to pay remain unaffected. Delivery times agreed to by Olympus shall be extended by the period of default of payment.
4.6. In the event of a perceptible deterioration in the customer’s financial circumstances, suspension of payments by the custo-mer, excessive indebtedness, a petition for institution of insolvency proceedings being filed, or the dishonouring of cheques by the customer, all of Olympus’ debts shall become payable immidiately. In such cases, Olympus shall be entitled at its discretion to demand advance payment or provision of security or, should the customer definitively refuse to meet the terms of the contract and/or to provide security, to terminate the contract or demand damages for non-performance.
5.1. Delivery times/deadlines shall only be binding if confirmed by Olympus in writing.
5.2. The delivery deadlines shall be considered to have been met if, by the time of the deadline, the delivery item has been dis-patched or collected from Olympus, or, should this dispatch or collection be delayed to reasons for which Olympus is not responsible, if notification of readiness to deliver is given within the stipulated time.
5.3. Delivery times that have agreed upon in writing shall be extended by a reasonable period should their non-observance after conclusion of a contract be as a result of “force majeure”, mobilisation, war, riots, strikes, lock-outs, attachments, embar-goes, or the occurrence of other unforeseen hindrances which cannot be eliminated by reasonable means and which are outside of the sphere of responsibility of Olympus. The same shall apply should such circumstances affect subcon-tractors and ancillary suppliers. Should delivery be impossible in whole or in part because of the nonculpable failure of Olympus to obtain supplies itself, as a result of “force majeure” or of difficulties not caused by negligence of Olympus, Olympus shall be entitled to terminate the contract. In this event, the customer shall not be entitled to claim damages or delivery of whatever kind.
5.4. The customer’s right to termination upon expiry of a reasonable period of grace granted to Olympus without result shall remain unaffected.
5.5. Claims for compensation or reimbursement of expenses as a result of impossibility of - or delay in - performance of the ser-vice or delivery shall be restricted to the amount of damages which could have been foreseen at the conclusion of contract. There shall be no liability in respect of the above in the event of simple negligence on the part of Olympus. Compensation entitlements in respect of intentional damage, damage to health, personal injury or death remain generally unaffected.
5.6. Should dispatch or delivery of the goods be delayed by circumstances lying within the sphere of responsibility of the customer, Olympus shall be entitled to charge the resulting additional expenses to the customer’s account.
5.7. Part deliveries shall be permitted. To the extent that such part deliveries can be used on their own, they shall be con-sidered as independent deliveries in respect of the due date of payment.
6. Dispatch and Packing
6.1. Dispatch within the territory of the Federal Republic of Germany shall be from a location to be specified at the discretion of Olympus unless otherwise stipulated by the parties. The manner of delivery shall be subject to Olympus’ discretion. Special requests of the customer shall be met in so far as this is possible. The customer shall bear any resulting additional expenses (see Item 3.3. above).
6.2. The goods shall be delivered in packaging which is suitable for dispatch and transport. Should means of packing or trans-port be desired above and beyond this transportability requirement, the customer shall bear the additional expenses.
6.3. For after-sales service deliveries (replacement parts, repair equipment), postage and packaging shall be calculated separately.
6.4. Should damaged packaging have to be replaced, Olympus reserves the right to charge for the replacement if Olympus did not cause the damage.
7. Passing of Risk
The risk lies with the customer for all deliveries, including any returns, even if freight prepaid, FOB, or CIF (Incoterms 2000) delivery has been agreed. The risk shall pass to the customer as soon as the consignment leaves the warehouse of Olympus or of a warehouse maintained by Olympus. Should delivery be delayed at the customer’s request or as a result of circumstances for which the customer is responsible, the risk shall pass to the customer for the duration of the delay as of the date of notification of readiness to deliver.
8. Reservation of Title
8.1. Olympus shall retain title to the goods until all present and future claims against the customer to which Olympus is entitled as a result of mutual business have been settled (reserved goods). Olympus’ claims shall not be extinguished upon being included in any current account balance and Olympus recognising this balance. The customer shall store the reserved goods in a proper manner and insure them sufficiently at his own expense. The customer shall be entitled to resale of the reserved goods only within the framework of his ordinary course of business, either against payment in cash or upon agre-eing upon a reservation of title. The customer shall be prohibited from transferring ownership by way of security, pledging, or otherwise disposing of the reserved goods in any manner which thwarts or impedes the reservation of title in functioning as security. Should third parties attach reserved goods in the customer’s possession, the latter shall inform such third par-ties of Olympus’ reservation of title, and shall inform Olympus in writing of the attachment enclosing the order of attachment and a statutory declaration which declares that the goods attached are identical with the reserved goods supplied. The customer shall bear any costs arising from attempts to prevent attachments by third parties in the event that pro-ceedings are successful and in the event that attempts to enforce the judgement on the third parties in question are not successful.
8.2. Any modification or processing of the reserved goods affected by the customer on behalf of Olympus shall not give rise to any obligations for Olympus. In the event of processing, combination, or mixing of the reserved goods with other non-Olympus goods, Olympus shall be entitled to the resulting fractional share of co-ownership of the new item, in accordance with the ratio between the value of Olympus reserved goods and that of the other goods processed at the time of pro-cessing, combination, or mixing. Should the customer acquire sole ownership of the new item, he shall grant Olympus co-ownership of the new item in proportion to the value of Olympus’ reserved goods and shall hold the item in safe custody for Olympus free of charge.
8.3. In the event of resale or leasing of the reserved goods, the customer assigns to Olympus in advance and by way of secu-rity his claims against his customers arising from this resale or leasing, up to the value of the reserved goods sold in each individual case; this assignment shall apply until all claims of Olympus arising from business dealings with the customer have been settled. Should the reserved goods be resold or leased together with goods from other suppliers and should an overall invoice be issued for both types of goods, the customer shall assign to Olympus that portion of the total price char-ged and/or of the total rental fee corresponding to the reserved goods included in the overall invoice; the same shall apply to ancillary rights (reservation of title, transfer of ownership by way of security, bills of exchange and the like). In a fiduciary capacity and for the account of Olympus, the customer shall be entitled to collect claims arising from resale which have been assigned to Olympus, and shall be entitled to enforce ancillary rights.The customer’s authorisation to col-lect and the authority to enforce ancillary rights can be cancelled for good cause, in particular in the event of a substantial deterioration in his financial position. The above-mentioned authorisations in particular the customer’s authorisation to col-lect, shall extinguish definitively should he fail to fulfil his financial obligations to Olympus, should insolvency proceedings be instituted against him, or should the institution of such proceedings against him be refused for insufficiency of assets. The customer shall not be authorised to dispose of the assigned claims by other means, e.g., by assignment to third parties (in particular to financial institutions), without prior written consent of Olympus.
8.4. In the event of default by the customer in making payment to Olympus, dishonouring of promissory notes or cheques, sus-pension of payments, excessive indebtedness, or should his assets be the subject of insolvency proceedings, or should the institution of such proceedings be refused for insufficiency of assets, the entire balance of his debts shall become pay-able, including promissory notes with later maturities. In this event, the customer shall, at the request of Olympus, provide Olympus with a list of all goods still in his possession which are subject to reservation of title, and a list of debts assigned to Olympus, which list shall include names and addresses of debtors and the amount of the debts. Should the conditions described above apply, the customer shall, upon request of Olympus, inform the debtors of the assignment of the debt to Olympus. Olympus shall be entitled to bring about the notificationof such third party debtors itself. Olympus shall also be entitled to repossess the goods subject to its reservation of title with a view to utilisation or dischar-ging the balance of the debts. The customer shall be obliged to procure possession of the goods for Olympus or to allow the authorised representative of Olympus access to the business premises during normal business hours. The demand for return or the seizure of the goods shall not constitute termination of the contract.
8.5. At the customer’s request, Olympus shall be obliged to release security at the customer’s discretion where the total value of such security exceeds the value of Olympus’ claims against the customer arising from current business dealings by more than 20%.
8.6. Should the proposed reservation of title not be legally effective in the territory in which the goods are located, the parties agree that the legal stipulations in that territory which are most similar to the rights of retention of title are to apply. Where special requirements are necessary to meet these stipulations, the customer is obliged to ensure that these requirements are met at his own cost.
9. Complaints and Warranties
Any complaints regarding incomplete, false or defective deliveries are to be reported in writing immediately after delivery. Hidden defects are to be reported in writing after these have been established. Olympus shall be liable for defects in the consignment subject to the following conditions:
9.1. As a rule, the warranty period shall last 12 months – unless otherwise agreed in writing – from the date of delivery to the customer. The warranty period shall be extended by the period in which the delivered product cannot be used because of the need for remedy of defects or replacement of goods. However, remedy of defects or replacement of goods shall not result in starting a new warranty period, unless such remedy or replacement may - in consideration of all circumstances and facts of the individual case - deemed to be considered as implied acknowledgement of such obligation under warranty; a remedy of defects shall, however, only result in starting a new warranty period, if it redresses the same defect or the outcome of defective remedy. In case of death, personal injury or damage to health as well as in case of intent, violation of material contract obligations or grossly negligent violence of other obligations under the contract the statutory period of limitation applies. Where a defect causing damage forms part of an indemnity agreement between Olympus and the customer or where a defect was fraudulently concealed a limitation or reduction of the statutory period of limitation is excluded. The provisions contained in Sections 478 and 479 German Civil Code (BGB) remain unaffected as a whole.
9.2. During the warranty period, Olympus shall at its own discretion either replace or repair free of charge any parts which are found to be unserviceable or of substantially impaired serviceability as a result of circumstances which are shown to have existed before the passing of risk. Defective design, poor materials, and faulty construction shall constitute such circumstances.
9.3. The customer shall fulfil all his contractual obligations, in particular the stipulated terms of payment. The customer shall be entitled to withhold payment because of a defect only if a complaint in respect of a defect of goods has been filed within the applicable time period. In this event, the payment withheld shall be in reasonable proportion to the extent of the defect noted.
9.4. The customer shall grant Olympus the necessary time and occasion to fulfil the warranty obligations. Should he refuse to do so, Olympus shall be released from the warranty obligation and from the liability for defects.
9.5. Should Olympus allow a reasonable period of grace to expire without remedying the defect or replacing the goods, or should Olympus refuse to take either action, or should remedy or replacement be impossible, the customer shall be entitled to avail himself of his right to termination of contract or reduction of the purchase price.
9.6. Any improper repairs or modifications effected by the customer or by third parties shall nullify any warranty or liability, unless the customer proves that the defect is not the result of this intervention.
9.7. The liability for defects shall not apply to normal wear and tear, nor to damage occurring after passage of risk as a result of faulty or negligent handling, overuse, inappropriate equipment, or such chemical, electro-chemical, or electrical influences as are not provided for in the contract.
9.8. Any further claims or rights of the customer against Olympus or against persons employed by Olympus resulting from defects in supplied goods shall be barred, in particular claims for damage not affecting the supplied goods themselves. This shall not apply where there is wilful misconduct, damage to health, personal injury or death. The above exclusion of liability shall also not apply where the defect causing the damage or loss is the subject of a warranty agreement between Olympus and the customer or where the defect was fraudulently concealed. The provisions contained in Section 478 of the German Civil Code (BGB) remain unaffected.
9.9. In so far as the Olympus product is equipped with accessories from third-party companies and the warranty terms and conditions of the third-party company are included with the Olympus product, Olympus shall assume these terms and conditions only in so far as they are not more disadvantageous for Olympus than the above provisions. Otherwise the above provisions shall apply.
9.10. Warranty claims arising from any batteries included shall be barred. Such batteries shall only be for demonstration purposes and operational tests.
10.1. Unless otherwise explicitly stipulated in these terms, or in the contract on which the delivery is based, Olympus shall also be liable for damages which are caused by gross negligence or with intent of Olympus, its agents or its executives. However, notwithstanding the above, Olympus shall also be liable for simple negligence in cases of material breach of contract. This liability for material breach of contract is restricted to such damage as is foreseeable and typical for the agreement in question. In respect of nonmaterial breach of contract, Olympus is also only liable for such damages in cases of gross negligence.
10.2. In the event of damage to health, personal injury or death, where liability pursuant to the German Product Liability Act (Produkthaftungsgesetz) exists, and where there is wrongful intent, the liability of Olympus is unrestrictedly subject to the statutory regulations. Liability in respect of impossibility of or delay in delivery/performance is solely subject to Item 5.5. of these Terms of Delivery and Payment.
11. Assignment of Claims
Claims arising from this contractual relationship and all claims against the damaging party or its insurer arising from the loss of or damage to reserved goods may only be assigned to third parties with prior written permission of Olympus.
12. Export control rulings
12.1. The export of certain goods, information, software and documentation can for example, by very nature of their type or their purpose or end purpose be subject to the approval agreement. The end user shall strictly abide by the relevant export regulations pertinent to the goods, information, software and documentation in question, in particular with regard to the EU, EU member states as well as the USA.
12.2. In abidance with the legislation governing export controls of the Federal Republic of Germany, as well as of the EU member states and the USA the customer is under obligation to procure at his own cost and befor the actual export of products or technical information, which he has received from Olympus, all the required export licenses and any such other documents necessary.
12.3. The customer shall be under obligation, not to sell, export, re-export, deliver or otherwise pass on, whether directly or indirectly, such products or technical information to persons, companies or to other countries in so far as this be in breach of laws and rulings of the Federal Republic of Germany, other EU member states or the USA. The customer is obliged to inform all recipients of these products and/or of any technical information of the requirement to abide by these laws and rulings.
12.4. The customer shall procure at his own cost all licenses and documents required for export and import, which may also be required for using the products. Refusal of export permission does not entitle the end user/ordering person or body/ purchaser to withdraw from the contract or to claim for damages.
13. Data Protection
14. Place of Performance
The place of performance for deliveries, payments and warranties shall be MŸnster.
15. Place of Jurisdiction
15.1. For all disputes, including actions in summary proceedings based solely on documentary evidence (Urkundenprozess), and actions in summary proceedings for unpaid cheques (Scheckprozess), MŸnster shall be the agreed place of juris-diction for merchants entered in the commercial register, legal persons under public law, and separate public estates. This shall also apply in the event that the customer’s legal residence or habitual place of residence is unknown, is located abroad, or has been transferred abroad.
15.2. For all above listed cases Olympus shall also be entitled to file a lawsuit in the court with jurisdiction over the customer.
16. Validity of the Olympus Terms of Delivery and Applicable Payment Law
16.1. Should individual provisions of the contract outside these Terms of Delivery and Payment be invalid, this shall affect neither the validity of the other provisions nor that of the contract.
16.2. The Terms of Delivery and Payment and the contracts concluded within the framework of these terms and conditions are subject to German law. The Vienna Convention (UN Convention on Contracts for the International Sale of Goods of 11 April 1980) is not applicable.
17. Business Dealings with Non-Commercial Entities
17.1. The above provisions shall apply to business dealings with purchasers who are not commercial entities/business persons (Unternehmer) within the meaning of Section 14 of the German Civil Code (BGB), withthe following amendments:
17.2. Item 3.2. shall apply subject to the provision that the price calculation is based on the prices applicable on the date of delivery/performance if the delivery or performance occurs more than four months after conclusion of the contract.
17.3. The reservation of current account in Item 4.1. shall not apply. The interest rate stated in Item 4.4. shall be 5% above base rate, subject to a minimum interest rate of 7%.
17.4. Item 5.7. – Partial deliveries – shall not apply.
17.5. Item 6.4. –Packaging damages – and Item 7 – Passing of risk – shall not apply
17.6. Item 8 – Reservation of title – shall apply with the following wording: Olympus shall retain title to the goods delivered until the purchase price has been paid in full. Olympus’ claims shall not be extinguished upon being included in any current account balance and Olympus
recognising this balance. The customer shall be entitled to resale of the reserved goods only within the framework of his ordinary course of business, either against payment in cash or upon agreeing upon a reservation of title. In the event of sale, the customer shall assign to Olympus all resulting claims against the purchaser in full and with all ancil-lary rights (reservation of title, transfer of ownership by way of security) until all debts arising from the purchase price have been paid in full. The reservation of title shall also extend to new products manufactured by combining the goods which Olympus has delivered with other objects. In the event of combination with other objects, Olympus shall acquire co-owner-ship, which co-ownership the customer shall hold in safe custody for Olympus.
17.7. Item 9.1 shall apply with the following wording: The warranty period shall last 24 months from the date of delivery to the user.
17.8. Item 9.2 shall apply with the following wording: During the warranty period, the rights of the customer shall be limited to demand remediation of a defect, subject to the customer's rights -in case of failed remedy of defects- to demand at his choice reduction or rescission of the contract.
17.9. Item 9.4. Sentence 2 shall not apply.
General License Terms By purchasing the Software (hereinafter referred to as the 'SOFTWARE') as specified in the contract offer, by breaking the packaging seal, by installing or otherwise using the SOFTWARE, you (hereinafter referred to as the 'CUSTOMER') agree to be bound by these General License Terms. If you do not agree to these General License Terms, please return the data medium, manuals already delivered to you in unopened packaging and with unbroken seals as well as all other parts of the acquired product without undue delay. Software already stored on your computer and files downloaded from the data medium must be deleted without undue delay. Refund of the purchase price shall be made swiftly.
§ 1 Subject matter of the License
(1) These General License Terms relate exclusively to the data medium delivered to the CUSTOMER and the SOFTWARE on it, the manuals and the Software protection, to the extent that they have been developed and manufactured by OLYMPUS SOFT IMAGING SOLUTIONS GmbH (hereinafter referred to as 'OSIS'). The terms below do not refer to Hardware that may be sold together with the SOFTWARE.
(2) OSIS provides the SOFTWARE stored on a data medium to the CUSTOMER for permanent use.
§ 2 Right of Use
(1) OSIS grants to CUSTOMER the simple non-exclusive individual right to use the SOFTWARE based on the following terms and conditions.
(2) In case OSIS has granted to CUSTOMER a MAIN LICENSE, the CUSTOMER may use the SOFTWARE on a single computer and on a single workstation only. The CUSTOMER may copy the SOFTWARE, stored on a data medium or through a local network, from one computer to another, provided that the SOFTWARE shall, at no point in time, be used or useable on several computers and provided that the provisions of § 3 are adhered to.
(3) In case OSIS has granted a SECONDARY LICENSE (MAIN LICENSE on more inexpensive conditions) the provisions of § 2 (2) shall apply by way of analogy.
(4) In case OSIS has granted a DESKTOP LICENSE, the CUSTOMER may process pictures taken under the MAIN LICENSE on another workstation (DESKTOP LICENSE). The following restrictions and provisions shall apply:
(4.1) If OSIS grants a DESKTOP LICENSE, the SOFTWARE does not support a picture card.
(4.2) A DESKTOP LICENSE may only be used by the user or users of the MAIN LICENSE within the same department.
(5) The CUSTOMER may make a backup copy of the SOFTWARE.
(6) The CUSTOMER may copy the SOFTWARE, if it is necessary for the use permitted by this § 2. Permitted copying shall include, in particular, the installation of the SOFTWARE on the used hardware and its loading into random access memory. In case the CUSTOMER has, on the basis of a written agreement with OSIS, the right to embed parts of the SOFTWARE specified in the agreement in programs created by CUSTOMER and to deliver the SOFTWARE in such form to third parties, delivery of the SOFTWARE shall only be made in compiled form as a component of the CUSTOMER's program and on the terms and conditions set out in the agreement. OSIS' copyright notice shall be included in visible form in the CUSTOMER-program. The CUSTOMER shall indemnify OSIS against all claims and costs which result from the use and/or distribution of CUSTOMER-programs so created.
(7) The rights of use granted by these General License Terms do neither extend to the source code, nor any program description other than the user documentation.
§ 3 Copyright
(1) With the purchase of the SOFTWARE the CUSTOMER acquires ownership only in the physical data mediums, the user manuals and the software protection. The CUSTOMER acknowledges that the SOFTWARE is covered by the protection of §§ 69a et seq of the German Copyright Law and that OSIS and its suppliers, respectively, remain the holders of any and all industrial property rights in the SOFTWARE, the user documentation and the imaging analysis systems.
(2) OSIS reserves any and all rights and claims deriving from the copyright, in particular the right of publishing, copying and processing the SOFTWARE and the user documentation, if and to the extent that nothing to the contrary is expressly agreed in these General License Terms.
Taking into account the statutory restrictions of §§ 69c et seq German Copyright Law the CUSTOMER shall not without OSIS' prior written consent
modify, translate, de-compile or de-assemble the SOFTWARE
copy any of the written material relating to the SOFTWARE
rent or lease the SOFTWARE to a third party
modify the software protection delivered with the SOFTWARE
(3) Any transfer to third parties of the rights of use granted by OSIS to the CUSTOMER is only permitted if the CUSTOMER withholds no copies and the respective third party submits to these General License Terms.
(4) The CUSTOMER is not entitled to grant sublicenses.
§ 4 Defective Goods
(1) OSIS does not warrant that the SOFTWARE is free from defects and informs that, as the technology currently stands, it is not possible to create the SOFTWARE so as to ensure its functioning free from defects in all environments. In this respect it is only warranted that the SOFTWARE functions within the meaning of the program description and in connection with the hardware specified therein.
(2) The CUSTOMER shall inspect the SOFTWARE including the data mediums and the user documentation to the extent feasible within the ordinary course of business and without undue delay after delivery by OSIS; in case of any defect, the CUSTOMER shall give notice to OSIS without undue delay. The foregoing applies particularly prior to any resale of the SOFTWARE to third parties, whether directly or pursuant to § 2 (6) after embedding the SOFTWARE into other programs. If the CUSTOMER fails to notify a defect, the SOFTWARE shall be deemed approved, unless the defect was hidden. A hidden defect shall be notified after discovery without undue delay, upon failure of which the SOFTWARE shall be deemed approved also with regard to that defect. The timely dispatch of the notice shall suffice to preserve the CUSTOMER's rights.
(3) If a defect appears after the CUSTOMER interfered with the SOFTWARE without OSIS' prior written consent, the defect shall be deemed not to exist. A defect shall also be deemed not to exist if the SOFTWARE is used on hardware or on an operating system that does not meet the requirements laid down in the contract offer or in OSIS' product descriptions.
(4) In case of a defect OSIS shall be entitled to mend twice. Should the defect not be remedied within an adequate time period, the CUSTOMER shall be entitled to either reduce the purchase price or to return the delivered SOFTWARE against refund of the purchase price.
(5) The time limit for statutory warranty claims shall be one year from delivery of the SOFTWARE to the CUSTOMER.
(6) There shall be no further rights based on warranty.
§ 5 Liability
(1) The CUSTOMER's claims for damage shall be governed by this § 5.
(2) OSIS shall liable in accordance with statutory law for wilful and grossly negligent conduct of its legal representatives and vicarious agents as well as pursuant to the German Product Liability Act.
(3) If obligations are breached due to slight negligence, OSIS shall be liable only if the obligation breached is of particular importance for the attainment of the contract purpose (cardinal obligation). In those cases OSIS' liability shall be restricted to such amount which corresponds to the contract value and to such foreseeable damage which must typically be expected. Any additional liability for slight negligence shall be excluded.
§ 6 Breach of Contract
(1) In case the CUSTOMER, his legal representatives or vicarious agents infringe the provisions of § 2 hereof or if they modify the software protection, particularly the Dongles, OSIS shall be entitled, without prejudice to damages claims, to rescind the contract.
(2) In case of rescission under § 6 (1) the CUSTOMER shall be obliged to return to OSIS the SOFTWARE, including the original data mediums and all copies and modified versions of the SOFTWARE as well as the written material and the software protection. The CUSTOMER shall confirm in writing that no copies of the SOFTWARE and the documentation delivered are being withheld.
(3) In case of breach of contract OSIS reserves all rights including the right to claim damages.
§ 7 Final Provisions
(1) For any and all disputes between the parties arising out of or in connection with a contract governed by these General License Terms, the courts of Münster, Germany, shall have exclusive jurisdiction.
(2) These General License Terms shall be governed by and construed in accordance with the laws of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods.
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