Basic Contract Terms

This Agreement contains the terms upon which you (hereinafter: the Licensee) are granted the right to use software standard product (hereinafter: the Software) of DocuWare GmbH, Therese Giehse Platz 2, 82110 Germering, Germany, (hereinafter DocuWare) and its licensors, which Licensee has acquired from a third party Software vendor authorized by DocuWare (hereinafter: the Vendor).

PLEASE READ THE FOLLOWING LICENSING TERMS AND CONDITIONS CAREFULLY! By installing, copying or otherwise using the Software, you agree with the following terms and conditions. IF YOU SHOULD NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT CONTINUE INSTALLING OR USING THE SOFTWARE. IN SUCH CASE CANCEL THE INSTALLATION PROCESS IMMEDIATELY. YOU MAY THEN RETURN THE SOFTWARE FOR A REFUND OF THE LICENSE FEE FROM THE VENDOR.

I.    License and Usage Rights

1. Subject to the payment of the agreed license fee and the following conditions DocuWare grants to Customer a non-exclusive, subject to Para 12 and 13 of this Section transferable right to install and use for internal purposes software that (i) is created by DocuWare or offered under the trademark of DocuWare (hereinafter “DocuWare Software”), or (ii) is not DocuWare Software (hereinafter: “Third Party” Software) in conjunction with the documentation and any material accompanying the software (the Documentation) and the license key.
2. A DocuWare System is the entirety of software components which are technically or logically linked to each other and as such administered within one common administration instance. Each DocuWare System contains logical entities of one or more Organizations. Such Organization technically represents inside the DocuWare System the company or the public administration of the Customer. The individual DocuWare software products and modules which can be installed in a DocuWare System contain a license for usage of the Software. Such a license is specifically issued to the one Organization of the Customer who purchased the software if not otherwise stated.
3. In the event that Customer had acquired a Client License up to and in-cluding September 2017, such license can after installation either be used as one Concurrent License or converted by the system administrator into two Named Licenses. In the event that Customer had acquired Named Client Licenses in or after October 2017, each four Named Client Licenses can be converted into a Concurrent License by the system ad-ministrator. A user can use a Client License for the DocuWare Client Software and for Add-on Modules. A Client License used as a Concurrent License entitles the Customer to use the Docu-Ware Software on an un-limited number of workstations, provided that the multiple work-station/network system technically prevents the number of users from be-ing able to work at the same time (simultaneously) as members of the Organization in any manner with DocuWare Software which exceeds the total number of available Concurrent Licenses. Named Client Licenses entitle the Customer to assign such license to one named user and allow only this one user the exclusive usage of the DocuWare software. All workstations, especially mobile PCs which are consistently or partially of-fline from the network in which the DocuWare system is installed, re-quires a Named Client license.
4. In the event that Customer had acquired a Site License (available up to and including September 2017), such license may be used to install and use DocuWare software on an unlimited number of workstations of an Organization, provided that all users are physically located within one site. A site is defined as one building or as a group of buildings which is not divided by any public roads. Any usage of DocuWare software through users who are physically located outside such site require extra Named or Concurrent Licenses. DocuWare Software or any portion of such software may also be used temporarily but not permanently outside the site, if it is installed on a mobile computer (notebook, laptop etc.) and if this mobile computer is administered from this site.
5. A purchased Server License may be used to install and use the respective DocuWare Server Software on one server only. If such DocuWare Software requires or allows the installation and usage of portions of the DocuWare Software on different servers it may be installed and used on different servers on condition that no identical portion of such DocuWare Software is installed and used on more than one server. Such installed DocuWare Server Software although licensed by one specific Customer may also be used by all other Customer who’s logical Organizations reside in the same DocuWare System.
6. In the In the event that Customer has acquired an Add-On Module License, the respective DocuWare Add-On Module may be installed and used through any user of the Customer’s Organization, provided that this user in the same moment uses a valid DocuWare Client License.
7. In the event that Customer wants to acquire additional Licenses for a DocuWare System, Customer must be using the most current version of all DocuWare components in such system and a current maintenance and support subscription has to be in place.
8. In the event Customer acquires a Programmer’s Toolkit License - also referred to as Software Development Kit (“SDK”) - then Customer has a nonexclusive, non-transferable, non-sub licensable and royalty-free right to reproduce and distribute executable files created using the SDK. Customer is being granted a nonexclusive, non-transferable, non-sub licensable and royalty-free right to reproduce and distribute the runtime modules of the SDK provided that Customer: (a) distributes the runtime modules only in conjunction with and as a part of Customer’s software product; (b) does not use DocuWare’s name, logo, or trademarks to market his software product; (c) includes DocuWare’s copyright notice for the SDK as part of the sign-on message for his software product; and (d) indemnifies, holds harmless, and defends its licensor from and against any claims or lawsuits, including attorney’s fees, that arise or result from the use or distribution of his software product. The “runtime modules” are those files in the SDK that are identified in the accompanying written materials as required during execution of Customer’s software program.
   No Multiplexing – no License pooling: In any case the Customer has to ensure, that every user who gets direct or indirect access to DocuWare software components - including all server components - or to DocuWare data through usage of non-DocuWare software is also using a valid DocuWare Client License, either as Named or Concurrent License.
9. In case and to the extent Customer has acquired from DocuWare licenses to any Third Party Software, DocuWare reserves the right to limit Customer´s license rights pursuant to the requirements of the licensing terms between DocuWare and the Third Party licensor. In the event a Microsoft SQL-Server license is acquired by Customer, the respective license is, in addition to the limitation set forth above, (i) for a Runtime License also runtime restricted and (ii) according to the license description within the price list may possibly only be used in conjunction with DocuWare Software. If it is limited for the use in conjunction with DocuWare, the aforementioned Third Party Software may not be used for any purpose of development and/or in conjunction with applications, da-tabases or schedules that are not contained in DocuWare Software. However, it is permitted through the use of appropriate tools, to access those databases and schedules that are generated by DocuWare Software.
10. Nothing in the General Business Terms entitles Customer to use any name or trademark of DocuWare for any purpose whatsoever, or to use any other name or mark confusingly similar thereto, without the express written consent of DocuWare, save as expressly set forth in these terms and conditions.
11. None of the Deliverables may be modified adapted, disassembled, decompiled, reconstructed or transformed, unless and to the extent permitted by mandatory law.
12. Customer may permanently transfer any software and Documentation acquired from DocuWare to third parties, whether against consideration or free of charge, provided that (i) Customer has completely transferred the software and the Documentation to such third party, and (ii) Customer has concluded with such third party a license agreement, which license terms and confidentiality obligations shall be for the third party at least as restrictive as the respective terms of these general terms and conditions, and (iii) such third party has agreed to procure from DocuWare a new license key after compensating DocuWare for all costs incurred by DocuWare for generating such license key. In case the above requirements are met, Customer shall (i) completely transfer the Software and the Documentation by delivering all original data carriers to such third party and (ii) completely deliver any copy made thereof to such third party or, at its option, destroy any not transferred copies thereof. With the completion of transfer of the software Customer’s right to use the software and the Documentation shall lapse immediately.
13. Customer shall be entitled to transfer the software and the Documentation to third parties on a non permanent basis, provided that (i) such transfer shall not be made for profit purposes (e.g. leasing, Software-as-a-Service), and (ii) Customer has concluded with such third party a license agreement, which license terms and confidentiality obligations shall be at least as restrictive for such third party as the respective terms of these general terms and conditions, and (iii) such third party has agreed to procure a new license key from DocuWare for all costs incurred by DocuWare for generating such license key. When the third party is using the software, Customer shall have no right to use the Software and the Documentation. Any non permanent transfer of the software to third parties for a profit purpose (e.g. leasing, Software-as-a-Service) shall not be permitted, unless DocuWare has granted Customer its prior written consent.
14. If Customer intends to export the software in a country outside the EU, Customer shall obtain all information regarding the export regulations (Bundesausfuhramt, 65760 Eschborn/Taunus) and obtain all permits, ordi­nances, order or regulations covering such export.
    Customer’s right to use the software and the Documentation shall lapse with immediate effect through any use that is not in strict compliance with this Section I.

II.    Limited Warranty and Disclaimer

1. Vendor warrants for a period of twelve (12) months from delivery of Software to Licensee that such Software, as delivered, will be free from defects in the media and will substantially conform to the specifications in the Documentation. In the event of non conformance of Software, Licensee shall promptly notify Vendor and provide Vendor with all available information in written or electronic form so that Vendor can reproduce the defect. Vendor's sole obligation is to undertake reasonable commercial efforts to correct the defects reported to Vendor in writing or in electronic form during the warranty period. VENDOR'S SOLE LIABILITY AND LICENSEE'S EXCLUSIVE REMEDY WITH RESPECT TO BREACH OF THE FOREGOING LIMITED WARRANTY WILL BE LIMITED TO ERROR CORRECTION OR PRODUCT REPLACEMENT, OR IF NEITHER IS IN VENDOR'S OPINION COMMERCIALLY FEASIBLE, REFUND OF THE LICENSE FEE RECEIVED BY THE VENDOR FROM LICENSEE FOR THE SOFTWARE THAT DOES NOT CONFORM WITH THE FOREGOING WARRANTY LESS A REASONABLE REDUCTION FOR THE TIME OF ACTUAL USE OF SOFTWARE BY LICENSEE.
2. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY, THE DELIVERABLES ARE LICENSED "AS IS," AND VENDOR SPECIFICALLY DISCLAIMS, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE DELIVERABLES. VENDOR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OF NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. 

III.    Indemnification

1. If within twelve (12) months from the date of delivery to Licensee a third party raises justified claims against Licensee that Software upon its delivery to Licensee, infringe intellectual property rights as recognized at the agreed place of delivery, Vendor shall at its cost acquire for Licensee a right to use the Software, in accordance with the terms of this Agreement. In case this is not possible at economically reasonable conditions, Vendor shall (i) indemnify and hold harmless Licensee against any reasonable legal costs and third party claims caused by such intellectual property right infringement up to the amount of an appropriate license fee, which the owner of the intellectual property right could claim directly from Vendor for the use of the infringing Software, or (ii) in compliance with the agreed specification modify the infringing Software to become non infringing, or (iii), if item (ii) is not possible at economically reasonable conditions, direct Licensee to stop using the Deliverables and refund to Licensee the licensee fee less a reasonable reduction for the time of actual use of Software by Licensee. 
2. Any obligation of Vendor pursuant to para. 1 shall be excluded, if and to the extent the costs and damages incurred by Licensee as a result of the infringement of intellectual property rights do not result from Vendor´s gross negligence or wilful acts or omissions. 
3. Licensee’s remedies set forth in this Section V. regarding the infringement of third party intellectual property rights by the Deliverables shall be exclusive.

IV.    Limited Liability

1. EXCEPT FOR INTENTIONAL MISCONDUCT AND/OR GROSS NEGLIGENCE, VENDOR’S TOTAL LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE LICENSE FEE RECEIVED FROM LICENSEE FOR THE SOFTWARE INVOLVED.
2. IF LICENSEE EMPLOYS THE SOFTWARE IN, OR IN THE DEVELOPMENT OF, LIFE CRITICAL APPLICATIONS OR IN ANY OTHER APPLICATION WHERE FAILURE OF THE SOFTWARE OR ANY RESULTS FROM THE USE THEREOF CAN REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, LICENSEE SHALL INDEMNIFY AND HOLD HARMLESS DOCUWARE OR VENDOR FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, COSTS, LIABILITIES AND EXPENSES (INCLUDING REASONABLE ATTORNEY’S FEES) ARISING OUT OF OR IN CONNECTION WITH LICENSEE EMPLOYING THE SOFTWARE IN, OR IN THE DEVELOPMENT OF, LIFE CRITICAL APPLICATIONS OR IN ANY OTHER APPLICATION WHERE FAILURE OF THE SOFTWARE OR ANY RESULTS FROM THE USE THEREOF CAN REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, AND AT LICENSEE'S OWN EXPENSE, TO DEFEND OR, AT ITS OPTION, TO SETTLE, ANY CLAIM OR ACTION BROUGHT AGAINST DOCUWARE OR VENDOR DESCRIBED HEREIN. NOTWITHSTANDING THE FOREGOING, DOCUWARE OR VENDOR MAY BE REPRESENTED IN ANY SUCH ACTION, SUIT, OR PROCEEDING AT ITS OWN EXPENSE BY ITS OWN COUNSEL.
3. UNDER NO CIRCUMSTANCES - EXCEPT FOR INTENTIONAL MISCONDUCT AND/OR GROSS NEGLIGENCE - SHALL VENDOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE USE OF THE DELIVERABLES, HOWEVER CAUSED, (WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT OR OTHERWISE), INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. THE LIMITATIONS ON VENDOR’S LIABILITY SET FORTH IN THIS SECTION SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY OF THE LIMITED REMEDIES AGAINST VENDOR.

V.    Proprietary Information

1. Licensee shall hold Software, the Documentation, and the License Key and any and all features and know how, including information relating thereto, (“Confidential Information”) confidential and shall not disclose such Confidential Information in whole or in part to any third party other than to Licensee employees whose job performance requires access to such Confidential Information in pursuance of this Agreement. Licensee shall take all reasonable steps to protect all Confidential Information from unauthorized or inadvertent disclosure or unauthorized use, including but not limited to all steps that Licensee takes to protect information that Licensee considers proprietary, trade secret or confidential.
2. Notwithstanding the foregoing, Licensee’s confidentiality obligations hereunder with respect to the Confidential Information shall not extend to information which Licensee can demonstrate: (i) is or has become generally available in the public domain through no fault of Licensee or any third party having apparent authority to act for Licensee; (ii) is rightfully obtained by Licensee from a third party without confidentiality obligations as to use and disclosure; or (iii) is shown by written record to have been known or available to Licensee without confidentiality obligations as to use and disclosure prior to Licensee’s receipt of such Confidential Information from DocuWare or Vendor.

VI.    General Provisions

1. This Agreement will be governed by and construed in accordance with the laws of Germany applicable on international sale of goods transactions. Exclusive legal venue for all disputes arising out of or in connection with the Agreement shall be the courts of Munich, Germany.
2. Neither this Agreement nor any rights or obligations hereunder shall be assignable or otherwise transferable, in whole or in part, by either party without the prior written consent of the other party, except for an assignment of this Agreement in its entirety to a party that acquires all of the assets, equity and operations of either party hereto, provided that prior written notice of any such assignment is provided to the other party and that the assignee and assignor in such assignment shall promptly execute all documents reasonably required by the other party to confirm the assignment. 
3. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
4. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
5. The prevailing party in any action to enforce the Agreement shall be entitled to recover costs and expenses including, without limitation, reasonable attorneys' fees.
6. The parties agree that a material breach of this Agreement adversely affecting DocuWare’s Intellectual Property Rights in Software or the Documentation would cause irreparable injury for which monetary damages would not be an adequate remedy and DocuWare shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.