General Terms & Conditions of Sales of Omix Visualization GmbH & Co. KG
Dated August 2013
All contracts about deliveries and services of Omix Visualization GmbH & Co KG are based on these General Terms & Conditions of Sales. By ordering, you acknowledge your awareness of these General Terms & Conditions of Sales and declare that you accept them. Differing and/or additional agreements strictly require a written permission of Omix Visualization GmbH & Co KG.
A. Conclusion and Execution of Contract
We grant to you the right to use the software for a period of one (1) year against payment. The amount of the license fee depends on the software edition effectively licensed by you. For special discounts of the Academic or Educational Edition, please apply to Omix Visualization GmbH & Co KG.
Enterprise Edition: You use the software as private-law company, as freelancer or for other commercial, professional or economic activities.
Academic Edition: You use the software as public-law educational and/or research organization exclusively for non-commercial purpose in science and education.
Educational Edition: For students enrolled at an educational institution (school, college, university) and using the software for educational purposes, we grant a student discount.
The differentiation in Enterprise, Academic and Educational Edition also applies to the optional plug-ins. The type of license edition must be consistent between Omix and the installed plug-ins. For example, you can only use Enterprise Edition licensed plug-ins within Omix Enterprise Edition. The same applies for Academic Edition and Educational Edition.
Conclusion of the contract assumes acceptance of the Omix End User License Agreement (EULA) (available at http://www.omix-visualization.com/eula) and providing your personal data. Omix Visualization GmbH & Co KG will protect the data collected in this process in accordance with the German Data Protection Act. These data are not transmitted by us for advertising or promotional purposes.
After your order, the contract comes into force by our confirmation of acceptance within five (5) days, or alternatively, by providing the contractually agreed services as download by us. As long as not specified otherwise in our online shop or the order process, you can download the software directly after conclusion of the contract and payment. After Installation, you activate the software on the target computer and – after receipt of full payment – you receive a hardware dependent license key. The data sent during this activation step contains information as follows: username, password, software version, language code and a hash of the hardware signature of your target computer system. The communication between the software and the license server of Omix Visualization GmbH & Co KG is protected according to current standards.
Contract customers have access to new program versions and update during the complete license period free of charge. Such updates are provided as downloads.
Contracts without automatic renewal automatically end after expiration of the license period. Contracts with automatic renewal (subscriptions) can be canceled without giving any reason within a minimum of 14 calendar days (cancelation deadline) before end date of the current license period which can be found in your confirmation of order acceptance. Otherwise, the contract is automatically extended by one year. Cancelation comes into effect on the end date of the license period.
The corresponding software license fee will be invoiced at the beginning of the next license period (contract year). If not specified otherwise, the renewal invoice will be based on the list prices valid on the date of cancelation deadline. At any time Omix Visualization GmbH & Co KG is entitled to terminate the contract with immediate effect for important reason. One important reason in particular occurs if you are in default of payment. In this case, Omix Visualization GmbH & Co KG will refund proportionally to you the already paid amount to you.
The right of revocation according to § 312 paragraph 4 No. 1 of the German Civil Code ("BGB") does not apply to distance contracts for the supply of goods which are unsuitable for a return shipment due to their nature (software provided for download, online software activation). The right of revocation will not apply, if you are entrepreneur in the meaning of § 14 BGB and act at conclusion of the contract in your commercial or self-employment activity.
As long as not specified otherwise, invoices of Omix Visualization GmbH & Co. KG are due and payable immediately without any deductions. Without further reminder, 30 days after receipt and due date of the invoice, you are in default with the payment due if we have pointed it out in the invoice. However, we can put you in default by sending a reminder earlier. The default interest for consumers is 5% and for entrepreneurs 8% over the base rate of Deutsche Bank provided we are not entitled for any other reason to higher interest rates. If full payment is received within 14 calendar days after receipt and due date, the license period begins with the day on which we receive full payment, otherwise, the license period begins with the invoice date. Checks will only be accepted on a conditional basis and are only valid after clearing as payment. Any bank charges will be charged to you. Only claims which are undisputed or legally binding may be offset. You can only assert the right to reserve payments if it is based on the same contractual relationship.
D. Limitation of Warranty and Liability
Omix Visualization GmbH & Co. KG ensures that the products are usable in terms of the corresponding product descriptions and perform accordingly. During the complete license period Omix Visualization GmbH & Co. KG gives warranty of merchantability of the licensed products according to the product descriptions to you.
You are obliged to support Omix Visualization GmbH & Co. KG in identifying and removing possible deficiencies and to provide auxiliary information or to make them available by request. Omix Visualization GmbH & Co. KG is entitled to bypass an error, if this error can only be eliminated at inadequate expenses and the usage of the software is not affected considerably. If a defect is discovered, Omix Visualization GmbH & Co. KG will either improve the software within a reasonable period of time or provide an error-free software version at our own discretion. If Omix Visualization GmbH & Co. KG is not successful in providing an improved or error-free software version within a reasonable time period, you are entitled to select reduction of the license price or to withdraw from the contract. Other claims, particularly those for indemnification of any further damage, are excluded. Omix Visualization GmbH & Co. KG is liable for damages arising from injury to life, body or health in accordance with the statutory provisions. Subject to the next sentence, Omix Visualization GmbH & Co. KG is only liable for other damages if they arise from wilful intent or gross negligence. For other damages that arise from any violation of obligations essential to the contract as a result of simple negligence, Omix Visualization GmbH & Co. KG is also liable. However, liability in case of simple negligence is limited to damage foreseeable at the time of contract violation. Any liability in accordance with provisions set out in the German Product Liability Act remain unaffected by the above terms.
You are obliged to use provided updates, patches and/or service packs for the software. You are furthermore committed to back up your data before installing the software as well as thereafter in adequate intervals, especially before changing hardware and/or software configuration of the target computer. Insofar as you are partially responsible for damages through violation of contractual duty, through change to the software performed by you or a third, or through improper use or misuse of the software, any liability of Omix Visualization GmbH & Co. KG is excluded. Omix Visualization GmbH & Co. KG does not take over guarantee for choice, installation and use and therewith intended outcome of the software. Additional expenses during procedure, by moving of the contractual software and/or product to another location are to be beard by you.
E. Software License
Omix Visualization GmbH & Co. KG grants to you the license to use the software within the agreed time period against payment. All other rights to the software not expressively granted here remain at Omix Visualization GmbH & Co. KG. The software can only be used within the agreed license period.
You are entitled to use the software as single user license on each compatible computer system, provided that the software is installed and activated on a maximum of three (3) computers in parallel or sequentially in time and that it is used by only one user simultaneously. The software is deemed to be in use on a computer if it is loaded to the random access memory (RAM) and/or installed on a permanent storage (for example hard disk or other memory). Furthermore, you are entitled to make a backup copy of the software if this is necessary for safeguarding the future use of the software. The indispensable regulations of the copyright law find supplementing application regarding the rights to use.
Without written consent you are not entitled to make copies of the software and related documentation beyond the purpose stated above; you are not entitled to rent or sell the software or related documentation or to use the software beyond the above stated right to use; you are not entitled to sub-license the software or to make it available or to provide it to third parties in a way not expressively granted; you are not entitled to modify or adapt the software and related documentation (this prohibition applies, i.a., for translation, modification and/or continuing to use the product in parts).
At the end of your granted right to use, the software is not to be operated any longer, and must be removed completely from your system. By the request of Omix Visualization GmbH & Co. KG you have to confirm the complete removal in writing. The regulations of the copy right law also find supplementing application here.
Place of jurisdiction is the registered office of Omix Visualization GmbH & Co. KG if you are merchant or a legal person under public law or if you have no general place of jurisdiction in the Federal Republic of Germany. We are entitled to also take legal action against you at any other legal place of jurisdiction. The law of the Federal Republic of Germany is applicable excluding the UN Sales Convention (CISG).
Copyright © 2013 Omix Visualization GmbH & Co. KG. All rights reserved.