General Terms and Conditions for DNA’s Services and Goods Deliveries
In this document the following words shall have the following meanings:
- Conditions means the terms and conditions of supply as set out in this document and any special terms and conditions agreed in writing with the Supplier;
- Contract means the Customer’s purchase order and the Supplier’s acceptance of it, or the Customer’s acceptance of a statement of work, quotation, Internet website, or other document or electronic media describing the Goods, Software Licenses or Services to be provided (as the case may be) by the Supplier;
- Customer means the person, firm or company who makes contracts with, is licensed by, or purchases Services from the Supplier;
- Document includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disc or other device or record embodying information in any form;
- Goods means any goods or licensed software agreed in the Contract to be supplied by the Supplier to the Customer (including any part or parts of them);
- Services means the services agreed in the Contract to be supplied by the Supplier to the Customer, together with any other services which the Supplier provides, or agrees to provide to the Customer;
- Software determines all programmes, applets, data bases, operation systems, files or similar electronic data provided on a data storage or downloaded over the web, by e-mail or any other electronic way;
- Supplier means the respective contracting entity of DNA Evolutions GmbH (DNA);
- VAT means value added tax chargeable under German law for the time being and any similar additional tax.
- Headings in these Conditions shall not affect their interpretation.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or reenactment and includes any subordinate legislation for the time being in force made under it.
- Words in the singular include the plural and in the plural include the singular.
- A reference to one gender includes a reference to the other gender.
A. APPLICATION AND ADAPTATION OF THESE TERMS & CONDITIONS
- These Standard Terms and Conditions („T&C“) shall apply to all items delivered and services performed (also referred to as “Deliverables”) by DNA Evolutions GmbH, Germany (“DNA”). They shall also apply to all future transactions with the customer to the extent that they concern similar legal transactions. Unless confirmed in writing by DNA, the validity of standard terms and conditions of the customer deviating from these T&C are not recognized by DNA. The unconditional delivery of goods, the performance of services, or the acceptance of payments by DNA shall not be deemed acceptance of standard terms and conditions of the customer deviating from these T&C or supplementing them, even in cases where DNA has not explicitly objected thereto.
- Due to existing exclusive partner agreements on DNA products, licensee’s products using these DNA products shall not be used or licensed to licensee’s customers working for or in the Field Service Industry (worldwide). Should licensee intend to license licensee’s product using one or more of DNA products in this industry branch, licensee is obliged to contact DNA to receive a written approval for the requested end customer before using DNA products.
- These T&C consist, first, of general provisions in Section B. that are applicable to the entire business relationship between DNA and the customer regardless of the various types of contracts. Second, they consist of special provisions in Section C. licensed software, D. governing the sale of goods, and special provisions in Section E. governing services, all of which supplement the general provisions set forth in Section B. In the event of conflicts between the general provisions in Section B. and the special provisions in Sections C., D. or E., the relevant special provisions shall have priority. In the event that these T&C are inconsistent with other agreements, the other agreements (with the exception of standard terms and conditions of the customer; cf. no. 1 above) shall apply.
- These T&C shall apply in their current version, as valid from time to time. DNA reserves the right to adapt these T&C at any time or to redraft them to the extent that the amendment or new version of the T&C remedies interferences with the equilibrium of the contract due to substantial changes in circumstances (Äquivalenzstörung) or closes gaps if this is reasonably acceptable to the customer.
- Nothing in the contract or conditions is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent for the other party for any purpose. No party shall have authority to act as agent for, and to bind, the other party in any way.
- Any waiver by the Supplier of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
B. GENERAL PART
§ 1 Binding contracts
- Quotations submitted by DNA are non-binding. A contract shall come about through acceptance of the order of the customer by DNA. Acceptance may also be declared implicitly by DNA through performance or the acceptance of the performance.
- A contract shall also come about by an expression of intent by the customer (e. g. by e-mail, telephone or a click in the Internet) thereby ordering or initiating the activation of all or part of the Deliverables by DNA.
§ 2 Commencement and term of the contractual relationship with regard to contracts for the performance of a continuing obligation
- The contractual relationship for contracts for the performance of a continuing obligation shall commence upon a contract having come about pursuant to Section B. § 1 or in accordance with agreements between the parties and shall run for the period specified in the contract (“Basic Term”). Unless terminated within the notice period, the contract shall be renewed by one year at a time (“Renewal Period”).
- The period of notice of termination is three (3) months effective at the end of the Basic Term or the Renewal Period. The notice of termination must be given in writing. The right of notice effective immediately for cause shall remain unaffected thereby
§ 3 Customer’s obligation to cooperate, toleration of interruptions
- The customer may use the Deliverables exclusively in conformity with the contract and in compliance with the law. The customer must take all appropriate measures to ensure that third parties are not using the items and services provided by DNA in a non-conforming manner or in breach of the law.
- The customer is responsible for its equipment being in perfect technical condition, serviceable and compatible with DNA’s Deliverables as well as for the proper power supply and the connection. This shall apply in particular to the serviceableness and compatibility of data processing devices and communication equipment of the customer. The customer must provide – where required – adequate Internet access.
- The customer shall notify DNA without delay of all changes of its data relevant to the contract, including, but not limited to, the name, legal form, registered office, banking information, name of contact person, and fundamental changes of its financial situation (insolvency proceedings, debt enforcement, etc.).
- The customer shall support DNA in the performance and management of the contract and, where applicable, in the Cure (rectification of defects or replacement) if necessary. This shall include, but is not limited to, the permission and facilitation of access to the customer’s equipment or its premises if necessary (e. g. in the event of installing or importing updates, etc.) or access to the customer’s systems in the event of remote maintenance. During any of these interventions, e. g. in the event of remote maintenance, the customer has no access to the system and must tolerate these interruptions. The customer must also tolerate interruptions if DNA performs maintenance services or other technically required actions at a portal provided to the customer. DNA shall use its best efforts to organize and schedule these interventions such that the interruption of the customer’s operations is kept to a minimum. DNA shall notify the customer in advance in a timely fashion of any necessary service calls or interventions.
- DNA shall use all reasonable endeavours to meet any performance dates specified, but where given, time limits, projected results and performance specifications quoted shall be best estimates only and time shall not be of the essence of the Contract. DNA shall use reasonable endeavours to provide the Services to the Customer in all material respects in accordance with the Contract. The Customer acknowledges that advice, information and results given by the Supplier to the Customer are given on the understanding that they are subject to normal experimental error and that the advice given or conclusions drawn are based on the evidence and methods and techniques known at the time.
§ 4 Terms of payment, payment under contracts for the performance of a continuing obligation, set-off
- Invoices from DNA are due and payable without delay, and any deductions. A cash discount shall be granted only on the basis of an express agreement, which will be effective and remain effective only for as long as the customer is not in default with any other payment.
- Unless objected to by the customer within one month of receipt of the invoice, all invoices shall be deemed approved with regard to their contents (in particular with regard to the Deliverables ordered). Claims of the customer according to the law, in particular in the event of defects, shall remain unaffected thereby.
- If the customer has provided for a SEPA Direct Debit Scheme, the direct debit shall be affected no later than within eight (8) calendar days of the billing date. If the SEPA Direct Debit Scheme has been set up, the amount of the invoice will be debited by DNA stating the mandate reference and the creditor ID. A pre-notification is provided together with the invoice and the period applicable to this pre-notification shall be reduced to one (1) day. The customer shall guarantee that the account has sufficient funds. Any costs incurred due to non-payment or chargeback of the debit shall be at the customer’s expense unless such non-payment or chargeback is beyond the customer’s control.
- Unless specifically stated otherwise or agreed separately, the prices specified or agreed do not include the statutory VAT, shipping costs and costs of packaging, additional accessories, installation, training and other ancillary services, which shall be charged separately.
- The customer is in default, without specific reminder, upon its failure to pay the invoice submitted to it within fifteen (15) days of the date of the invoice, unless the invoice submitted is incorrect, has not fallen due, or is not enforceable. Default may also occur in accordance with the statutory requirements. If the customer is in default, DNA is entitled to charge interest in the amount of nine (9) percentage points above the base interest rate. Claims for higher damages on the grounds of default shall remain unaffected thereby.
- The remuneration under contracts for the performance of a continuing obligation must generally be paid in advance on a monthly basis. If the customer is in default of payment of remuneration or a substantial part thereof at two (2) subsequent payment dates, or if the customer is in default for a period extended over more than two (2) payment dates regarding the payment of remuneration in an amount equal to the remuneration for two (2) months, DNA is entitled to terminate the contractual relationship for cause with immediate effect.
- DNA may set off its own claims against any claims for refund, damages or other payment claims of the customer. A set-off by the customer of any of its own claims against payment claims of DNA or the exercise of a right of retention shall be neither permissible not possible unless the customer’s claim or counterclaim is uncontested, established as final and absolute or at least ready for judgment. A set-off or the exercise of a right of retention shall similarly be possible if both the customer’s claim and DNA’s claim have a reciprocal basis in law.
- For all Contracts with a value over one thousand Euros (1,000€) DNA reserves the right to invoice one-third of the Contract price on acceptance of the Contract, which if so requested must be paid in accordance with the Supplier’s normal payment terms and conditions as set out in this Condition.
§ 5 Charge of costs in cases of unjustified complaints
To the extent that a complaint of the customer regarding the serviceability of the items delivered and services performed by DNA, e. g. due to an alleged defect, is unfounded under the law, the customer is not entitled to any claims, including, but not limited to, any warranty claims and rights. DNA may charge the customer with any work performed by DNA on the basis of such complaint upon the customer’s request or demand, as well as expenses incurred by DNA (including, but not limited to, costs for analyses, repairs, transportation and travel).
§ 6 Delivery periods
All delivery dates or delivery periods agreed shall be understood to be approximate dates/periods unless specifically designated as binding.
§ 7 Refusal of acceptance of items delivered and services performed by DNA
in the event of minor defects
The customer is not entitled to refuse to take receipt of, or accept, items delivered and services performed by DNA in the event of minor defects.
§ 8 Limitation of DNA’s liability for damages
- Where DNA, its authorized representatives, employees or agents willfully or with gross negligence commit a violation of obligations of any kind or for any cause in law, especially obligations under the contractual relationship or on the commission of a tortious act willfully or with gross negligence, DNA shall be liable for the resultant loss or damage to the customer in accordance with statute.
- Where DNA, its authorized representatives, employees or agents commit a violation of obligations of any kind or for any cause in law due to ordinary negligence, especially obligations under the contractual relationship or on the commission of a tortious act due to ordinary negligence, any claim in damages by the customer against DNA shall be excluded except in the case of a violation of essential contractual obligations due to ordinary negligence. In that case DNA’s liability shall be limited to foreseeable damage typical of this type of contract. An essential contractual obligation within this meaning is one the fulfilment of which provides for a proper performance of the contract in the first place and on compliance with which the customer generally relies and has a right to rely.
- The above exclusions or limitation of liability, as the case may be, shall not apply in the event of culpable wrongful death, personal injury or harmful health effects, nor in the event of fraudulent concealment of a defect, where a guarantee of quality fails to be met, or in the event of liability under the Product Liability Act.
- The statutory rules on burden of proof shall not be prejudiced by the above provisions.
- Information or advice emanating from DNA given after the exercise of all reasonable care in its compilation, preparation and issue, but is provided without liability in its application and use. Except in respect of death or personal injury caused by the DNA’s negligence or as expressly provided in these Conditions, the Customer acknowledges that DNA shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Supplier, its servants or agents or otherwise) which arise out of or in connection with the provision of the Goods or Services (as the case may be) under this Contract or their use by the Customer, and the entire liability of the Supplier under or in connection with the Contract shall not exceed the amount of the Supplier’s charges for the provision of the Goods or Services (as the case may be), except as expressly provided for in these Conditions.
- DNA shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any material or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Customer.
§ 9 Force majeure, no claims of customer in the event of interruptions not related to DNA’s performance, interruption in performance with justification
- For as long and to the extent that the delivery of items and performance of services by DNA are hindered due to force majeure (e. g. pandemics, legal strikes or lockouts, interruptions of operations, lack of labour, energy or raw materials, acts or omissions of governments, all through no fault of DNA, obstacles of DNA’s suppliers to perform beyond DNA’s and the supplier’s control), the mutual contractual performance obligations shall be suspended.
- If the hindrance due to force majeure is not only temporary in nature, both parties to the contract are entitled to rescind the contract or terminate it with immediate effect with regard to the performance affected by such hindrance.
- The beginning and the end of force majeure shall be communicated by the party affected thereby without delay to the other party.
- Where the interruptions do not prevent DNA from making deliveries and performing services but result only in a limitation of the usefulness or quality thereof, there is no force majeure. This could in particular be the case if reception and transmission areas are restricted geographically to the radio station of the individual network provider, or if radio technology-related, atmospheric, weather-related or geographic circumstances, or topographic facts, or natural or architectural obstacles (bridges, tunnels, buildings, etc.) affect the reception and transmission areas or trigger radio interferences or radio communication failure. The use of the Internet may be restricted by additional interferences (such as network overload). The customer is hereby expressly notified of these potential interruptions the causes of which are not related to the items delivered or services performed by DNA. DNA also points out that the usability of mobile telecommunication technology and networks can sometimes vary considerably from country to country and even regionally. It is therefore for the customer itself to check the usability of mobile telecommunication standards and networks provided by DNA with the hardware in the proposed areas of operation using the product data sheets. DNA does not give any warranty of such usability. Nor do changes in such usability during the term of the contract or during normal operating life, e.g. network changes, fall within DNA’s area of control. To the extent that such interruptions or lack of usability have not been intentionally or negligently caused by DNA, they shall not create a claim for damages, warranty, reduction of the price, rescission or termination of the contract with immediate effect by the customer. In these cases too, the customer is fully obligated to pay the agreed remuneration.
- Due to the possibility of a sudden hampering of performance of services, e.g. due to a pandemic, it is agreed by the parties that a situation might always suddenly arise in which, although DNA might still able to fulfil its contractual obligations, its performance is not just insignificantly impeded so that DNA has a legitimate interest in suspending its performance for the duration of such impediment and then resuming it again once the obstacle has been eliminated. The parties agree that in such circumstances DNA shall have the right to temporarily suspend its performance.
§ 10 Data protection
- DNA shall be entitled to collect, treat, and use in accordance with the statutory provisions any personal data that are required to create or amend the contractual relationship and its contents, as well as personal data for the provision of services. The customer is aware and expressly agrees that the performance of services requested on the part of the customer may require the recording of the whereabouts of a resource, resources’ data and communication data and the temporary storage of such records and data by DNA. The customer shall inform the resources, the works council or the staff or employee representation, as applicable, in accordance with the law on the proposed use of the services and, where required, involve them in the organization of such use and reach an agreement where necessary.
§ 11 Intellectual property rights
- Any and all copyrights, industrial design rights, trademark rights, patents, utility model rights, or any other proprietary rights to the concepts, texts, drafts and comparable deliverables developed by DNA shall remain exclusively with DNA. The customer agrees and undertakes that it will not use the records, knowledge and information delivered to the customer by DNA to assert any rights with respect to industrial property rights applications, prior use, or licensing, nor disclose any such knowledge and information to third parties.
- Any and all objects, records and documents of DNA provided by DNA to the customer in the course of the implementation of the contract shall remain the property of DNA, unless DNA has contractually transferred title to such objects, records and documents to the customer.
- All computer software supplied by DNA to the Customer pursuant to or in connection with the Contract shall be treated by the Customer as confidential and in any event shall be subject to a separate licensing agreement. The software products, Licenses, or final product of any work developed or arising in the course of carrying out the Services under this Contract or Goods supplied shall not pass to the Customer until DNA has been paid in full for all Goods, Licenses or Services (as the case may be) provided. Further, if the Customer shall incorporate the Goods or Licenses into any other goods then the title in these goods shall also belong to the Supplier until DNA has received payment in full of all outstanding sums.
§ 12 Retention of title
- All goods delivered to the customer the ownership of which is intended under this contract to devolve upon the customer shall remain DNA’s property until full payment of all claims under this business relationship (“Conditional Goods”). The customer must treat the Conditional Goods with care. The customer must also sufficiently insure the Conditional Goods at replacement value against theft, fire and water damage at its expense.
- The customer may sell, process or install the Conditional Goods only in consideration of the provisions set out below: a) The customer’s authorization to sell, process or install Conditional Goods in the ordinary course of business shall end upon a revocation of such authorization by DNA due to an essential violation of an obligation by the customer, including, but not limited to, the suspension of payments; b) The processing or installation of the Conditional Goods by the Customer shall always be performed on behalf of DNA without binding DNA. In the event of processing or installation, DNA shall acquire co-ownership in the goods into which the Conditional Goods are processed or installed at the ratio of the invoiced value of the Conditional Goods to that of other materials at the time or processing or installation. This shall apply mutatis mutandis in the event of blending the Conditional Goods with other materials.
- If the value of the collateral in favour of DNA exceeds DNA’s claims by a total amount of more than 10%, DNA is obligated, upon the customer’s request, to release collateral to this extent at DNA’s discretion.
§ 13 Records and material provided by the customer
- All records and material provided by the customer to DNA (“Customer’s Supplies”) for the purpose of fulfillment of contract shall be handled with due care by DNA. DNA is not obliged to insure the Customer’s Supplies.
- DNA shall return the Customer’s Supplies as soon as they are no longer needed by DNA to fulfill the contract. For as long as the customer has not paid the remuneration owed, DNA shall have a right of retention with regard to the Customer’s Supplies. The customer must examine immediately the Customer’s Supplies returned to it and notify DNA without delay of any fault it found. Sec. 377 German Commercial Code (”HGB”) shall apply in this respect.
§ 14 Suspension of performance under the contract in the case of alleged industrial property right infringement
If DNA is prohibited from its full or partial performance under the contract by a third party invoking an industrial property right of that party, DNA is entitled to suspend the performance of the contract in this respect until clarification of the legal situation. If the continuation of the business relationship due to the delay is no longer reasonably acceptable to the customer or DNA, the party concerned is entitled to rescind or terminate the contract with immediate effect.
§ 15 Installation
In the event that the customer must install Deliverables provided by DNA in order to use them, the customer is obligated to have the items professionally installed at its expense either by an DNA installation partner or a workshop trained by DNA. The installation is not included in the price agreed upon. Prior to the installation of the Deliverables provided by DNA, the customer must ensure that the technical requirements – communicated to it by DNA in good time in advance – have been fulfilled in order to install and get the Deliverable ready for operation.
§ 16 Assignment of rights and claims
DNA may assign rights and claims against the customer to third parties, the customer may assign rights and claims against DNA only with DNA’s consent.
§ 17 Place of performance, place of jurisdiction, and applicable law
- The Federal Republic of Germany shall be the exclusive international place of jurisdiction for all disputes arising under this business relationship. DNA’s principal place of business shall be the exclusive local place of jurisdiction if the customer is a merchant [as defined in the law], legal entity under public law or fund under public law. DNA may sue the customer also in any other court that has local jurisdiction under the law.
- The business relationship between DNA and the customer shall be governed exclusively by the law of the Federal Republic of Germany without giving effect to the UN Sales Convention.
C. SOFTWARE LICENSING
The following License Agreements for Software Products between DNA Evolutions GmbH, Ulm/Germany (“DNA”), and the Customer or User (“Licensee”) applies to the DNA Products
and any other software product licensed by DNA Evolutions GmbH that is not explicitly mentioned in this list.
§ 18 Scope and Limitations of the License
- All licensed deliveries of the DNA products are subject to this agreement and are protected by national and international agreements for copyrights. None of the deliveries may be copied, transferred or distributed in electronic or any other way unless as explicitly granted in this agreement. Licensee may incorporate the DNA product library into licensee’s product and distribute it once to its customers solely as incorporated into licensee’s product.
- DNA grants the licensee a non-exclusive, non-transferable right to install and use a copy of the software for the sole purpose of incorporating the DNA product into licensee’s product. The license is granted for an undetermined period of time. The licensee may terminate this agreement by destroying all copies of the DNA products. DNA has the right to terminate the right to use the programs if the licensee fails to comply with any of the terms of this agreement, in which case the licensee shall destroy all copies of the programs.
- Licensee shall not distribute DNA products whether incorporated or not in licensee’s own product which can be used by licensee’s customers as a software development kit or as components enabling licensee’s customers to produce software for routing, scheduling or optimization purposes.
- Due to existing exclusive partner agreements on DNA products, licensee’s products using these DNA products shall not be used or licensed to licensee’s customers working for or in the Field Service Industry (worldwide). Should licensee intend to license licensee’s product using one or more of DNA products in this industry branch, licensee is obliged to contact DNA to receive a written approval for the requested end customer before using DNA products.
- In case or change of the User’s name, legal form, or address the User is obliged to inform DNA without any delay.
6. The software may only be operated in the way described in the user manual. Except as permitted under Section 1 above, the licensee may not modify, change, extend, translate, disassemble, decompile or reverse-engineer the software or parts of it. It is not allowed to make any copies of the software unless as granted in this agreement.
- The “Third Party Software” terms and conditions and – if applicable – the “Additional License Agreement for Trial or Demonstration Purposes or Trial and Demonstration Versions” are part of this T&C (see the relevant section below), supplement this T&C, and apply for all software licenses provided by DNA.
$ 19 License
- The software is licensed to the licensee but it is not sold. DNA holds all rights on the software if it was not explicitly transferred to the licensee. Except with respect to the rights granted in Section 1 regarding DNA product, licensee shall not make any copies of the software or of parts of the software, rent, loan, sell, or in other way distribute unless for one single copy for back-up purposes.
- The User will receive a license key which enables the use of the JOpt license based on the purchased capabilities. This key must be included in the User’s software accessing the JOpt functions.
- The licensee is obliged to prevent the software or any benchmark results from disclosure.
§ 20 Disclaimer of Warranty of Licensed Software
- DNA warrants that (i) it has the right to grant licensee the rights under this agreement; and (ii) the software will work in accordance with the user documentation.
- As licensee’s sole and exclusive remedy and DNA’s entire liability for any breach of the foregoing performance warranty, DNA will fix, provide a work around, or otherwise repair or replace the nonconforming software, or, if DNA is unable to do so, terminate the license for the software and return the fees paid to DNA for the nonconforming software.
3. Except for the foregoing warranties, the software is provided ‚as is’ without warranty of any kind. We further disclaim all warranties, express and implied, including without limitation, any implied warranties of merchantability, fitness for a particular purpose or non-infringement.
- Except for the indemnification obligations of either party or either party’s gross negligence or wilful misconduct in no event shall either party be liable for any indirect, incidental, special, punitive or consequential damages, or damages for loss of profits, revenue, data or data use, incurred any party, whether in an action in contract or tort, even if such party has been advised of the possibilities of such damages. Except for the indemnification obligations of either party or either party’s gross negligence or wilful misconduct, each party’s entire liability for damages hereunder shall in no event exceed the purchase price of the software.
§ 21 Property Rights and Indemnification of Licensed Software
- The software is protected by international copyright agreements. The licensee accepts that no intellectual property rights are transferred by this software and that all rights remain explicitly at DNA.
- DNA shall defend, indemnify and hold licensee harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against licensee by a third party alleging that use of the software as contemplated hereunder infringes the intellectual property rights of such third party, provided licensee (a) promptly gives written notice of the Claim to DNA; (b) gives DNA sole control of the defence and settlement of the Claim (provided that DNA may not settle any Claim unless it unconditionally releases licensee of all liability); and (c) provides to DNA, at DNA’ s cost, all reasonable assistance. DNA will, at its sole option and expense: (i) procure for licensee the right to continue using the software under the terms of this agreement; (ii) replace or modify the software to be non-infringing without material decrease in functionality; or (iii) if the foregoing options are not reasonably practicable, terminate the license for the infringing software and refund Licensee all prepaid fees for the remainder of its subscription term after the date of termination. DNA shall have no liability for any Claim to the extent the Claim is based upon (i) the use of the software in combination with any other product, service or device not furnished, recommended or approved by DNA, if such Claim would have been avoided by the use of the software, without such product, service or device; or (ii) Licensee’s use of the software other than in accordance with this Agreement.
D. SALE OF GOODS
To the extent that DNA sells goods to the customer, in particular hardware with software (“Goods”), the following provisions shall apply in addition to the general provisions under Section B. above.
§ 22 Passing of risk, delivery, storage, and insurance
- Deliverables from DNA shall generally be ex works (Incoterms 2010). The risk shall pass to the customer as soon as DNA has made the Goods ready for pick-up as agreed and notified the customer of the readiness for dispatch. If DNA has assumed the shipping costs, the risk shall pass to the customer upon delivery to a forwarding agent or carrier but no later than upon the Goods leaving the warehouse. The shipment is at the risk of the customer.
- To the extent that it has been agreed that DNA is to deliver the Goods, the customer must ensure that the Goods can be delivered at the agreed delivery date.
- Agreed delivery periods shall start to run at the earliest upon the sending off of the confirmation order but not prior to the clarification of all technical and commercial details of the fulfillment of the order and receipt of any agreed down payment.
- If the pick-up or the dispatch is delayed at the customer’s request or due to its fault, DNA shall store the Goods at the expense and risk of the customer. DNA charges the actually incurred costs for the storage on a weekly basis but no less than 0.5% of the net value of the Goods stored. The customer shall be free to pick up the delivered Goods at any time at its own risk and expense.
§ 23 Quality agreement
- The quality owed shall be governed exclusively by the performance characteristics and specifications expressly agreed upon. DNA does not assume any warranty beyond the quality so defined, including, but not limited to, the warranty for a specific application or a specific suitability of the Goods, service life or durability of the Goods, unless this has been expressly agreed upon; in all other respects the risk of suitability or use shall reside exclusively with the customer.
- General information on the Goods published in the media or printed on labels is based on DNA’s general experience and knowledge and serves no other purpose but providing product information or bench marks without any commitment. Any description of the Goods that may be included in the customer’s orders or DNA’s confirmations of orders shall serve the sole purpose of a general designation and description of the Goods but shall not represent a quality agreement (Beschaffenheitsvereinbarung). Any such information or descriptions shall not release the customer from its obligation to examine the Goods.
- DNA is generally not aware of the actual place of application or use of the Goods. The customer is responsible for verifying whether the delivery or application of the Goods constitute any industrial property right infringements or other violations of the law at the place of application or use.
- Furthermore, the customer is responsible for checking whether the Goods are properly certified at the actual place of application or of use, which is not guaranteed by DNA.
§ 24 Notice of defects, warranty and warranty period
- DNA must be notified of defects without delay but no later than eight (8) business days after receipt of the Goods, and in the case of latent defects, no later than three (3) business days after discovery of the defect, in text form (email or telefax are sufficient). Notices of defect must specify the defect in detail. In all other respects, the provisions set forth in Sec. 377 HGB shall apply.
- In warranty cases, the statutory provisions shall apply unless agreed otherwise below.
- To the extent that the Goods are defective, DNA shall, at its option, remedy the defect or deliver Goods that are free from defects (“Cure”). DNA must be granted a reasonable period for this purpose. If the customer consents, DNA may replace the Goods or individual components thereof for the purpose of rectification of defects. The customer shall not unreasonably withhold its consent. The Cure shall neither include the installation and disassembly of the Goods nor the costs thereof.
- DNA is to be provided with two opportunities to effect a Cure. If the Cure fails or is unnecessary (because DNA refuses it wrongly, for example) the customer may rescind the contract or reduce the purchase price provided that the legal requirements for this purpose are met. The customer may claim damages under the law only if the requirements of the provisions set forth under Section B. § 8 are met.
- Limitation begins one year after delivery of the goods or – if legally required – after acceptance. In the cases of §§ 438 para. 1 no. 2, 438 para. 3, 634a para. 1 no. 2, 634a para. 3 BGB (German Civil Code), the statute of limitation provided for therein applies. In the case of fraudulent concealment of a defect, the statute of limitations is governed by the statutory provisions If DNA owes damages according to the provisions set forth under Section B. § 8 above, the warranty period with respect to the compensation shall also be as provided in the statutory provisions.
To the extent that DNA provides other services to the customer (in addition to the sale of Goods, where applicable), including, but not limited to, optimization services, geocoding and routing services, Internet services (jointly referred to as “Services”), the following provisions shall apply in addition to the general provisions under Section B. above.
DNA provides web services based on the APIs as described by the User Document of JOpt. When using Web Services, the software is not licensed but access is provided via an API-Key. Based on the Contract, DNA will grant the Customer the non-exclusive, non-transferable right to call the JOpt Web Services and to process the Web Service’s result to Web Service calls.
DNA has the right to install updates and to change the API of the web service at any time. The User may not modify, change, extend, translate, decompile, reveal or reverse-engineer the web services, its API, or parts of it. Temporary interruptions may occur if DNA resolves interferences or is processing software, hardware, or service updates. The user is obliged to use the web services in a contractual and legal way. Since DNA is hosting the Web Services but relies on third party cloud service providers, the Terms and Conditions of the Web Service cloud service provider contracts also apply for the User when using DNA’s Web Services via the API and API-Key. These Terms and Conditions can be viewed on request at any time via DNA.
The Customer shall only operate the web services in the way described in the User Document. The web services are not an autonomous or independently running application but must be integrated into a third application by the Customer which must further process the results of the web service calls in an application specific way. DNA grants the permission to include JOpt Web Services into any end user application developed and published by the User provided that the terms and conditions of DNA and DNA’s cloud providers are met. DNA may interrupt the web services if a significant infringement of the contractual usage of the web services is noticed, in particular, if the web services is used in a non-contractual or in any illegal way.
The Web Services of DNA make use of internal and external computer service providers and the internet for accepting, processing, and responding to service requests and web service calls. The Customer is aware that computers, computer service providers and the internet may be subject to deficiencies and interferences resulting in late responses or reduced availabilities. All users and contractual partners are herewith explicitly indicated to such eventualities which may occur at any time with any duration. Such interferences do not justify any claims for damages or warranty.
§ 21 Customer’s additional obligation to cooperate
- The Customer is obligated to protect all objects belonging to DNA and provided to the customer for its use as part of DNA’s Service from access by unauthorized third parties and to ensure the proper handling thereof. It is prohibited to pass DNA Services on to third parties without express written consent by DNA.
- The customer is obligated to notify DNA without delay if a loss of, or damage to, any of the DNA Objects provided to the customer has occurred. The customer warrants a system-related use of the DNA Objects at all times. The customer shall bear the risk for any DNA Objects provided to it until the proper return thereof to DNA.
§ 22 Change of performance
For technical reasons the data provided by the User via the API may be temporarily copied during the data processing. This user data will be deleted after the processing has finished. In order to comply with (personal) data protection rules, DNA strongly recommends that the User does not submit any personal data in any kind without prior secure data encryption. The Customer is responsible for all legally required data security measures especially – but not limited to – personal data. If a change of the Services becomes necessary due to changes of the scope of performance, in particular regarding the Internet, the mobile or fixed-line networks, DNA shall inform the customer in due course of the nature and time of the change of performance by way of a notification (email or telefax are sufficient). The changes shall be binding upon receipt of the notification at the time when they become necessary. Should the changes not be acceptable to the customer, the customer may terminate the contractual relationship within one (1) month of receipt of the notification of change with effect at the time of the necessary change and without prior notice.
§ 23 Suspension of Services
DNA is entitled to suspend the Services if the customer violates any contractual or legal obligation, including, but not limited to, any use by the customer in a non-conforming manner or in breach of the law, or if modifications or maintenance services are required, in particular if flaws occur that result in a major increase of use.
Third Party Software
JOpt uses single functions of open source Third Party Software in the versions as listed below or higher which are license under different license conditions. These Licenses require the application and acceptance of the following terms. By using the software, you accept these terms. If you do not accept them, you shall not use the software. The Third-Party Software may also be subject to export control. You are obliged to check if your product that includes JOpt is affected by any export regulations.
Licensed under The Apache Software License, Version 2.0:
- Jackson-annotations (com.fasterxml.jackson.core:jackson-annotations:2.11.4 – http://github.com/FasterXML/jackson)
- Jackson-core (com.fasterxml.jackson.core:jackson-core:2.11.4 – https://github.com/FasterXML/jackson-core)
- jackson-databind (com.fasterxml.jackson.core:jackson-databind:2.11.4 – http://github.com/FasterXML/jackson)
- Jackson datatype: Guava (com.fasterxml.jackson.datatype:jackson-datatype-guava:2.11.4 – https://github.com/FasterXML/jackson-datatypes-collections)
- datatype: jdk8 (com.fasterxml.jackson.datatype:jackson-datatype-jdk8:2.11.4 – https://github.com/FasterXML/jackson-modules-java8/jackson-datatype-jdk8)
- Jackson datatype: JSR310 (com.fasterxml.jackson.datatype:jackson-datatype-jsr310:2.11.4 – https://github.com/FasterXML/jackson-modules-java8/jackson-datatype-jsr310)
- Jackson-module-parameter-names (com.fasterxml.jackson.module:jackson-module-parameter-names:2.11.4 – https://github.com/FasterXML/jackson-modules-java8/jackson-module-parameter-names)
- FindBugs-jsr305 (com.google.code.findbugs:jsr305:3.0.2 – http://findbugs.sourceforge.net/)
- error-prone annotations (com.google.errorprone:error_prone_annotations:2.7.1 – http://nexus.sonatype.org/oss-repository-hosting.html/error_prone_parent/error_prone_annotations)
- Guava InternalFutureFailureAccess and InternalFutures (com.google.guava:failureaccess:1.0.1 – https://github.com/google/guava/failureaccess)
- Guava: Google Core Libraries for Java (com.google.guava:guava:31.0.1-jre – https://github.com/google/guava)
- Guava ListenableFuture only (com.google.guava:listenablefuture:9999.0-empty-to-avoid-conflict-with-guava – https://github.com/google/guava/listenablefuture)
- J2ObjC Annotations (com.google.j2objc:j2objc-annotations:1.3 – https://github.com/google/j2objc/)
- RxJava (io.reactivex.rxjava2:rxjava:2.2.21 – https://github.com/ReactiveX/RxJava)
- swagger-annotations (io.swagger.core.v3:swagger-annotations:2.1.13 – https://github.com/swagger-api/swagger-core/modules/swagger-annotations)
- Apache Commons Compress (org.apache.commons:commons-compress:1.21 – https://commons.apache.org/proper/commons-compress/)
- Apache Commons Lang (org.apache.commons:commons-lang3:3.8.1 – http://commons.apache.org/proper/commons-lang/)
- Apache Commons Math (org.apache.commons:commons-math3:3.6.1 – http://commons.apache.org/proper/commons-math/)
- immutables.value (org.immutables:value:2.8.8 – http://immutables.org/value)
- BSON (org.mongodb:bson:4.4.2 – https://bsonspec.org)
- MongoDB Java Driver Core (org.mongodb:mongodb-driver-core:4.4.2 – http://www.mongodb.org)
- Spring AOP (org.springframework:spring-aop:5.3.19 – https://github.com/spring-projects/spring-framework)
- Spring Beans (org.springframework:spring-beans:5.3.19 – https://github.com/spring-projects/spring-framework)
- Spring Context (org.springframework:spring-context:5.3.19 – https://github.com/spring-projects/spring-framework)
- Spring Core (org.springframework:spring-core:5.3.19 – https://github.com/spring-projects/spring-framework)
- Spring Expression Language (SpEL) (org.springframework:spring-expression:5.3.19 – https://github.com/spring-projects/spring-framework)
- Spring Commons Logging Bridge (org.springframework:spring-jcl:5.3.19 – https://github.com/spring-projects/spring-framework)
- Spring Transaction (org.springframework:spring-tx:5.3.19 – https://github.com/spring-projects/spring-framework)
- Spring Data Core (org.springframework.data:spring-data-commons:2.6.4 – https://www.spring.io/spring-data/spring-data-commons)
- Spring Data MongoDB – Core (org.springframework.data:spring-data-mongodb:3.3.4 – https://projects.spring.io/spring-data-mongodb/spring-data-mongodb)
Licensed under BSD:
- Units of Measurement Reference Implementation (tec.units:unit-ri:1.0.3 – http://github.com/unitsofmeasurement/unit-ri)
- Units of Measurement Common Library (tec.uom.lib:uom-lib-common:1.0.2 – http://github.com/unitsofmeasurement/uom-lib/uom-lib-common)
- Units of Measurement API (javax.measure:unit-api:1.0 – http://unitsofmeasurement.github.io/)
Licensed under CC0:
- reactive-streams (org.reactivestreams:reactive-streams:1.0.3 – http://www.reactive-streams.org/)
Licensed under MIT:
- SLF4J API Module (org.slf4j:slf4j-api:1.7.32 – http://www.slf4j.org)
- Checker Qual (org.checkerframework:checker-qual:3.12.0 – https://checkerframework.org)
Javax.Measure – Units of Measurement API
Copyright (c) 2014-2018, Jean-Marie Dautelle, Werner Keil, Otavio Santana.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
- Apache 2.0
Apache License, Version 2.0, January 2004, http://www.apache.org/licenses/. Export regulations are available via http://www.apache.org/licenses/exports/.
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Additional License Agreement for Trial or Demonstration Purposes or Trial and Demonstration Versions
‘We’, ‘us’, and ‘our’ refers to DNA. ‘You’ and ‘your’ refers to the individual or entity that wishes to use the programs from DNA. ‘Programs’ refers to the software product, webservice or component you wish to download and use and program documentation. ‘License’ refers to your right to use the programs under the terms of this agreement.
DNA may provide special versions of the software products for demonstration or trial purposes. These versions are usually degraded in functionality and are provided only for demonstration of the functionality. We are willing to license the programs to you only upon the condition that you accept all of the terms contained in this agreement. If you are not willing to be bound by these terms, return all deliveries back to DNA and/or destroy any copies of the software and program documentation immediately and do not make any use of the programs. By installing the software you automatically confirm your acceptance to this licence agreement.
We grant you a nonexclusive, non-transferable limited license to use the program for your internal business operations, including the development and testing of applications, subject to the terms of this agreement and the program documentation. You may also distribute the program with your applications to your customers for demonstration purposes and subject to the terms of this agreement. We grant you a non-exclusive, non-transferable limited license to use the components only for the purpose of developing a single prototype of your application for your internal business operations, and not for any other purpose. If you want to use the application you develop using the components for any internal data processing or for any commercial or production purposes you must contact us, or a DNA reseller, to obtain the appropriate license. If you want to use the program or components for any purpose other than as expressly permitted under this agreement you must contact us, or a DNA reseller, to obtain the appropriate license. We may audit your use of the programs.
Ownership and Restrictions
We retain all ownership and intellectual property rights in the programs. You may make a sufficient number of copies of the programs for the licensed use and one copy of the programs for backup purposes.
You may not:
- use the programs for any purpose other than as provided above;
- distribute the programs unless accompanied with your applications and for demonstration purposes only;
- charge your end users for use of the programs;
- continue to develop your application using the components after you have used it for any internal data processing, commercial or production purpose without securing an appropriate license from us, or an DNA reseller;
- remove or modify any program markings or any notice of our proprietary rights;
- use the programs to provide third party training on the content and/or functionality of the programs, except for training your licensed users;
- assign this agreement or give the programs, program access or an interest in the programs to any individual or entity except as provided under this agreement;
- cause or permit reverse engineering, disassembly or decompilation of the programs;
- disclose results of any program benchmark tests without our prior consent;
- use any DNA name, trademark or logo without our prior consent.
We grant you a non-exclusive, non-transferable right to copy and distribute the programs to your end users provided that it is for demonstration purposes only and you do not charge your end users for use of the programs and provided your end users may only use the programs to run your applications for their business operations. Prior to distributing the programs, you shall require your end users to execute an agreement binding them to terms consistent with those contained in this section and the sections of this agreement entitled ‘License Rights’, ‘Ownership and Restrictions’, ‘Disclaimer of Warranties and Exclusive Remedies’, ‘No Technical Support’, ‘End of Agreement’, ‘Relationship Between the Parties’. You must also include a provision stating that your end users shall have no right to distribute the programs, and a provision specifying us as a third-party beneficiary of the agreement. You are responsible for obtaining these agreements with your end users.
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Disclaimer of Warranty and Exclusive Remedies
THE PROGRAMS ARE PROVIDED ‘AS IS’ WITHOUT WARRANTY OF ANY KIND. WE FURTHER DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
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End of Agreement
You may terminate this agreement by destroying all copies of the programs. We have the right to terminate your right to use the programs if you fail to comply with any of the terms of this agreement, in which case you shall destroy all copies of the programs.
No Technical Support
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Relationship Between the Parties
The relationship between you and us is that of licensee/licensor. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity. Nothing in this agreement shall be construed to limit either party’s right to independently develop or distribute software that is functionally similar to the other party’s products, so long as proprietary information of the other party is not included in such software.
You agree that this agreement is the complete agreement for the programs and licenses, and this agreement supersedes all prior or contemporaneous agreements or representations. If any term of this agreement is found to be invalid or unenforceable, the remaining provisions will remain effective.