Somebytes SoftwareSomebytes Software Development

General Terms and Conditions

Of Sven Ilius, for goods, services and software licences in the field of Software Development

A. Contractual Basis

1. Area of Application
These terms and conditions should apply to all contractual relations and pre-contractual negotiations with my customers, irrespective to manner and extent of the services in the line of ongoing and future business connection.

2. Exclusivity
My terms and conditions are valid exclusively. Conflicting terms and conditions of my contractual partners or third parties are only valid if I expressly agree in written to their validity. If you should not agree to this, please indicate this immediately in written. In this case, I reserve the right to withdraw my offer; nobody can raise a claim in any way to me then. Hereby, I disagree explicit to the standard notice to own general terms and conditions.

3. Conclusion of Contract and written form
On principle, I only enter in a contractual obligation provided that manner and extent of the services and rewards are defined in written by both parties. Later, oral changes or amendments are not valid before they have been confirmed in written afterwards. The same applies for all declarations of intend, especially for complaints, reminders and notices of defects in the line of the contractual relation.

B. Software Licences

4. Licence and Extent of Use

I in the nature of an entitled person assign to the customer the further non-transferable and non exclusive right to use indefinitely the software, and if available the documentation material, specified in the order and/ or invoice. The customer acquires the right to use the software on as much workstations integrated in one local network as licence fees he has paid for. Basis for assessment therefore is the number of licences listed in the referring invoice as well as special agreements (quantity scale, unlimited licences etc.) if applicable.

5. Property and Copyright
The software assigned to the customer including the whole documentation remains my property. I stay the owner of all copyrights and rights of use of the programs assigned to the customer including the corresponding documentation material, even if the customer makes changes or connect it with his own programs or with them of third persons. In the case of such changes or connections as well as in the case of making copies, the customer has to attach an appropriate comment of copyright. A change of the program code by the customer is only allowed after previous written consent by me. If functions of the system are interfered by using programs changed by the customer or third persons or other programs not procured from my person I am not liable for such damages.

6. Payments
For using the software for an indefinite time, the customer is obligated to pay a one-time licence fee. The amount of the licence fee complies with the current price list respectively to separate reached agreements according the order or invoice. All prices stated on the website are quoted in Euro including VAT. My VAT- identification no. is DE207486657. Unless otherwise agreed, the customer receives an activation code or an activation program via E-Mail when full payment has been received. If the customer falls behind with payment for more than 30 days, I am entitled to charge interest for delay in the amount of 5 % per year over the corresponding benchmark interest rate of the European Central Bank.

7. Responsibility of the Customer
The disposed programs as well as the documentation material must not make accessible neither in whole nor partly to third persons with clue to possible misuse. The customer must not modify my labeling, copyright marks and property declarations in any way on the programs. The customer has to make sure outward the non-disclosure of all program-, documentation-, and company papers as well as program specific knowledge. This includes only the papers which have been made accessible to the customer in the curse of the completion of the contract; it does not include advertising brochures and their content. The customer has to pledge his employees to an accordingly non-disclosure. The non-discloser agreement is also valid beyond the duration of the contract whereupon it does not matter if the contractual relationship has been dissolved because of any reason. Furthermore, the duty to observe secrecy includes also a prohibition of publication of materials or citations in mere extracts. The break of the duty to observe secrecy is only allowed with my previous written agreement. The customer is obligated to make up for damages occurred by harming the above mentioned rules in case of gross negligence to the maximum amount of the license price apart from deliberate intention.

8. Termination
I have the right to terminate the contract with immediate effect if the customer falls behind with paying the license fee for more than one month and/ or the customer furthermore breaks with one provision of these general terms and conditions or another individual contractual rule after a written warning. The customer is only entitled to terminate this contract because of failure to meet service provisions of my side or because of unrecoverable defects in case I have not meet my obligations and if he previously has given a written warning and a reasonable period of time has passed in which the criticized fault of the contract has not been cleared. Within a period of five days after termination of the license, the customer has to destroy all programs, copies and referring materials including changed or combined programs unless they need to be stored because of legal prescriptions. The customer has to confirm unsolicited within 30 days the elimination or the conservation because of legal prescriptions to me. Furthermore, he grants me the right to control the observation of this provision.

C. Delivery, Guarantee and Liability

9. Delivery and Dates
Delivery dates and periods are in general non-binding temporally orientation guides unless they are explicit agreed in written as fix dates. I reserve the right to adjust the specifications of the license products f. e. to technical developments, amendments or future market requirements. Source codes are not included in the delivery. The same applies to individual adjustments or extensions of the software. I only guarantee the correct run of the software on the operating systems released by me.

10. Guarantee
I grant the guarantee for the legal period (of currently six months) from the point of delivery onwards that the software regarding its functionality corresponds basically to the description in the manual respectively the documentation. Liability for an assured feature exists only if it is a matter of an expressly written assurance. I point out that regarding the state of technology it is impossible to create computer software totally free from defects. The customer should investigate standard software immediately after delivery and communicate evident errors without delay to the seller. If an error arises in the software, the customer is obligated to communicate it within two weeks to me. With the written notice of defects the error and its form of appearance has to be described as detailed as an inspection of the error is possible (f. e. by giving the error message) as well as an exclusion of a handling error can be done (f. e. by telling the steps of work).
In case of a justified notice of defect I reserve the right for subsequent improvement. After having failed two times with the improvement of the same defect or an error that is in direct connection with the defect, the customer has the right to chose between redhibitory action or price reduction. The same applies if one cannot expect of the customer due to especially grave circumstances of the particular case a second try of subsequent improvement because of the same defect or an error that is in direct connection with it or another error.
If the program documentations give clear hints to the analysis of the problem and definite instructions for error recovery and if it is an error like this that is caused by an operating error, I have the right to claim reimbursement of expenses.
The guarantee includes the error recovery of the program code but not the recovery of errors that occur because of outside influences, operating errors and changes that have not been executed by my person and for which ones I cannot be held responsible.
An insignificant reduction or limitation of serviceability and capability of the program does not describe an error. If the error recovery is in fact impossible or because of economical reasons unacceptable, I am entitled to install an alternative solution if it leads to a suitable solution of the problem.
I do not guarantee that the software corresponds to the special requirements of the customer or that it will work together with the programs of the customer or with its existent hardware.

If the customer has claimed me against guarantee and if the result is that either it has not been an error or that the claimed error does not obligates me for guarantee, the customer has to reimburse my expenses if he is responsible grossly negligent or intentionally for claiming me.

11. Limitation of Liability and Prescription
In case of slight negligence I am only liable if an essential obligation of the contract (cardinal obligation) is harmed or a case of delay or impossibility is on hand. In case of liability because of slight negligence the liability is limited to the fivefold of the contractual amount as well as limited to such damages that are foreseeable or typical. This limitation of liability is also valid in case of liability because of slight negligence because of an initial incapacity of my side. Insofar as nothing other occur, further claims of the customer - whatever legal reasons - are excluded. I am not liable for lacking economical success, indirect damages or secondary damages and for damages of claims of third parties.

Liability for deliberate intent, gross negligence, missing of warranted attributes, because of bad faith, for damages to persons, defect of title and product liability remain unaffected.

Liability for data loss is limited to the typical efforts for recovery which would have been occurred in case of continuous and safety copies made according to the risk.

Liability independent to the fault in line with § 538 sect. 1 BGB (German Civil Code) is expressively excluded.

The prescription period for non essential breach of contract is limited to two years.

D. Auxiliary Conditions

12. Choice of Law, Place of Fulfilment and Court of Jurisdiction
All my business connections with my customers are exclusively subject to the law of the federal republic of Germany. If this law refers to any foreign legal system, these references are invalid. The application of the CISG (United Nations Convention on Contracts for the International Sales of Goods) is expressively excluded. Place of fulfilment is Bad Lobenstein. Court of jurisdiction for both parties is Bad Lobenstein, but I am entitled to have the choice to put in own claims to the court of jurisdiction of my partner. If my contractual partner is no general merchant, the legal rules are valid.

13. Licence Conditions
Additionally, the individual licence contracts of the respective software are valid which have been presented to the customer already during the installation of the shareware version or which are in the program index as a text file. Provided that the customer had no possibility to read them before ordering, they are only valid after acceptance with the first start of the program. The licence contracts complete and expand these general terms and conditions. If there are contradictory sections that are not invalid or not applicable, the respective rules of the licence contract are valid.

14. Severability Clause
If several clauses of this contractual conditions or aside closed individual agreements are all or partly invalid, this does not affect the efficiency of the remaining clauses. The invalid clause will be replaced by another one which comes as close as possible to the economic content of the invalid rule and that itself is valid.

Status quo: December 2005