General Terms and Conditions and End User License Agreement Klarso GmbH
Version June 2017
§ 1 Subject matter of the contract
- Provider. The supplier of products or services pursuant to this contract is Klarso GmbH, Schwartzkopffstr 7a, D-10115 Berlin, hereinafter referred to as Klarso.
- Relationship. These terms and conditions of Klarso govern the legal relationship between Klarso and the customer.
- Services. Klarso develops software for customers and licenses software to customers as licensees. Klarso provides services such as support, training and warranty in connection with the use of the software by the customer as a licensee. Services such as data preparation or database / document creation, product information as well as support and warranty are provided by Klarso.
- Manufacturer. Klarso is the manufacturer and owner of all exploitation rights to the standard software “Index Manager”, “Thesaurus Manager”, and the software product family “klar:suite”.
§ 2 General information
- Consumers. If the customer is a consumer within the meaning of § 13 BGB (German Civil Code) and acquires rights of use for purposes which cannot be attributed either to his commercial or his independent professional activity, the provisions for consumers in apply in § 3.7, § 4.4, § 16, § 18.2.
- Exclusivity. These General Terms and Conditions apply exclusively; deviating terms or business conditions of the customer apply only if and to the extent that they are expressly accepted by Klarso in writing. These terms and conditions shall also apply if Klarso, in the knowledge of conflicting terms or conditions of the customer deviating from these terms and conditions, carries out the order of the customer without reservation.
- Writing requirement. All agreements made between Klarso and the customer for the offer and execution of an order shall be made in writing or in text form (for example by email).
- Supplements. Amendments and additions to this contract require their written form to be effective.
§ 3 Conclusion of contract (offer, confirmation and acceptance)
- Conclusion. A contract with cost according to these terms is concluded, if (i) the customer goes through the web-based ordering process on a Klarso website (e.g. klarso.com, index-manager.net) and then clicks the “Place order and pay” button, or (ii) the customer and Klarso sign a written order form, or (iii) the customer accepts a written offer from Klarso in writing or (iv) the customer places an order by telephone and an order confirmation email is sent. Details of the contract (e.g. selected software, key features, license duration) can be found in the options selected by the customer and the details provided by Klarso in the order process or in the offer / order form (all together subsequently called the “offer”). A free-of-charge contract under these terms can be concluded by installing a free or test or freemium software.
- Product presentation. The presentation of the Klarso products and services, in particular on the website, does not constitute an offer for the conclusion of a contract, but rather asks the customer to send a request for the conclusion of a software license agreement or service contract to Klarso.
- Details of the customer. The customer is obliged to provide all the information truely and completely that is necessary for Klarso to properly execute the contract. This information is requested during the webbased ordering process at the time of purchase, or results from Klarso’s offer in accordance with § 3.5. Additional costs which Klarso incurs e.g. due to incorrect / incomplete customer details, shall be borne by the customer.
- Web-based ordering process. On the websites of Klarso the order process for the conclusion of the contract comprises the following steps:
- Select the product in the desired variant
- Enter the invoice and delivery address and, if applicable, company data (VAT ID)
- Verify all inputs
- Click on the button “Place order and pay”
- Confirmation mail, that the order has been received. The contract is concluded with sending of the order confirmation email.
- Offer. In the case of queries via telephone or email, Klarso creates a binding offer for the licensing or development of software and additional services and sends this to the customer. The contract is concluded by written acceptance of the offer (also in text form, for example by email).
- Test phase. If a test phase is stipulated in the order, the customer can terminate the contract within 30 calendar days from the contract date without notice and with immediate effect. An already paid usage fee or purchase price will be refunded in this case.
- 14-day right of revocation. If the customer is a consumer (see § 2.1), he is entitled to revoke the order within 14 days after purchase. This can be done informally by email to firstname.lastname@example.org without giving any reasons.
- Information. Telephone information from Klarso is not binding.
§ 4 Prices and terms of payment
- Prices. The prices apply as stated in the offer at the time of the order.
- Europe. Orders from European countries must always be made in EURO, or in the currency listed for the customer’s country when the order is placed in the web based ordering system.
- Rest of the world. Orders from American, South and East Asian, Oceanic and African countries must be made in US dollars, or in the currency listed for the country of the customer when the order is placed in the web based ordering system.
- VAT. In general, the prices quoted are exclusive of value-added tax. The value-added tax will be stated separately in the invoice at the statutory rate on the invoice date. For consumers (see § 2.1) in Europe, the prices quoted include VAT.
- Customs. In the case of orders from outside the EU, any customs or import fees that might become due in the country of the customer, are to be paid exclusively by the customer.
- Payment method. Payments must be made by the payment method indicated in the offer at the time of the order. Any other methods of payment require the prior consent of Klarso.
- Maturity. Unless otherwise stated in the confirmation of order or invoice, the invoice amount shall be due without deduction immediately after invoice retention. The customer bears any costs for the transfer of money or the currency conversion, if necessary also subsequently.
- Discounts. The deduction of any discounts shall be subject to the prior explicit agreement.
- Rebates. Klarso can offer special discounts for different customer groups, e.g. for non-commercial customers such as students or universities. The customer is obligated to prove his entitlement to the reduction, if necessary repeatedly, and to ensure that the license is made available only to the authorized person group.
- Late Payment. If the customer is in default of payment, Klarso shall be entitled to prevent the further use of the software or the affected license for the duration of the delay in payment.
- Offsetting. The customer is only entitled to set-off rights if his counterclaims have been legally established, undisputed or recognized by Klarso. The customer is only entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
- Obligation to cooperate. If the customer is in default of acceptance or if he violates other cooperation obligations, Klarso shall be entitled to demand damages incurred by Klarso, including any additional costs. In this case, the risk of accidental loss or accidental deterioration of the object of the contract also passes to the customer at the time at which the latter is in default of acceptance.
§ 5 Delivery, delivery time
- Download. After conclusion of the contract, the customer is given access to a download link, via which the customer can download and install the software. The software is not delivered on a data carrier, unless otherwise expressly specified in the offer.
- Access Period. The access period starts when the customer receives the download link for downloading the software from Klarso servers and the required license key. The customer alone decides whether and when he downloads and activates the software.
- Installation. The customer is responsible for the installation and configuration of the software on his computer, unless otherwise specified in the offer.
- Order Processing. Orders are processed within one week after receipt.
§ 6 Activation and license verification of the software
- Activation. The use of the software requires an online activation with a valid license key.
- License key. The customer receives a license key when downloading or purchasing the software (for example by email) for activation and subsequent use according to the acquired license rights.
- Online testing. An Internet connection is necessary for activation and license verification when starting the software. If an Internet connection is not available after activation of the software, the software can nevertheless be used for a period of at most 14 days (“Offline mode”).
- Data transmission. For software activation and license verification various data is sent to Klarso which may also include personal data. The customer hereby AGREES WITH RESPECT TO THE DATA PROTECTION LAW (§ 4a BDSG) that Klarso processes and stores information about the license number, the computer and the system environment used, the date and time, the IP address, the program version, the username and domain of the workstation computer used, and data on the usage statistics, with the purpose to provide the software services, to process support requests, as well as to verify compliance with the license terms. These data are not passed on to third parties, except to enforce this agreement.
§ 7 Use rights and forms of utilization agreements
- License. Licensee is granted a paid, non-exclusive, time limited right to use the software product licensed by Klarso or the software developed for and accepted by the customer. This license is also limited to a number of users or installations. The source code is not included. Differing conditions may be agreed upon for custom-developed software scripts.
- Users and installations. The licenses are limited to a certain number of users or installations. In the case of restriction of the number of installations, an additional license fee is payable for the use of the licensed software on another workstation and / or computer system. Use of the software on a so-called multi-user system or in a network is only permitted by separate agreement and only against payment of the corresponding license fee(s). The “relocation” of an installation from one computer to another computer is possible (e.g., in the case of a repair); If the customer installs the software once more and exceeds its licensed user / installation number, the installation which has not been used for the longest time is deactivated.
- Start of license. The license period starts with delivery, or in the case of download software with sending of the required data (download link and activation key).
- Test licenses. Klarso may offer free licenses for testing. Licenses of this kind can be acquired free of charge by a customer once per product. A test license is limited to one installation or workstation. The license period is limited to 14 days or 30 days and terminates automatically without notice. Test licenses may be restricted in some functions and do not include support.
- Lifetime licenses. Only if expressly agreed, a license is permanent and indefinite. For lifetime licenses without limited term, support and upgrades are not included and must be purchased or agreed upon.
- Further rights. Customer shall not be entitled to any further rights.
§ 8 Software updates (updates and upgrades)
- Updates. Customers receive updates (software updates within the purchased software version) free of charge.
- Upgrades. As part of their existing license customers do not receive Upgrades to new main versions of the software with significant new features, except if explicitly agreed. Customers may receive an offer to upgrade their license to the new major software versions, if applicable by adapting their payments to the new version’s price.
- Download. If updates and upgrades are available, they will be available for download via a feature of the software or via the relevant Klarso website.
- Updating duty. Klarso is entitled to make software updates at its own discretion, to offer them for download and to make their use obligatory.
- Free licenses. Users of free of charge licenses are not entitled to updates of the software they use.
§ 9 Service and support
- Support levels. Unless otherwise agreed, standard support is available for term contracts, but no support for free licenses and lifetime licenses (without a term). If support is included, the support provides reasonable assistance with questions about the features and difficulties with the installation and activation of the software.
- Contracts with standard support. Free online support by inquiries via email or web form. An answer to email inquiries within 2 business days is striven for (except during the two-week period between Dec 24 and Jan 6).
- Contracts with premium support. Basic support plus free phone support. During service hours Mon-Fri from 10 am to 12 noon and from 2 pm to 4 pm (except holidays and during the two-week period between Dec 24 and Jan 6) or by callback from Klarso to the customer within 2 business days.
- Contracts with training. A personal online training of 2 hours with introduction to the licensed software for new users.
- Individual support. Individual support services, e.g. including consulting, beyond the agreed support level are subject to fees and require a separate agreement.
§ 10 Termination, contract amendments, price adjustment
- Termination. Subscription/runtime licenses are renewed and each time extended by their contract term (e.g. 3 months), but by no more than 12 months, provided that they are not terminated with a term of 2 months at the end of the term. The right to extraordinary termination shall remain unaffected. In particular, Klarso shall be entitled to extraordinary termination if the customer
- violates in any form the rights of use and / or copyrights of Klarso granted to him by this agreement,
- is in arrears with payments due for more than two months.
- Discontinuation of product. With the expiry of at least 5 years from the start of the license, Klarso reserves the right to discontinue the operation of the license server for a Klarso product for justifiable reasons. The start of the license for each customer is the day on which he first acquired a license for the affected Klarso product.
- Equivalent product. Independently of this, Klarso is entitled to transfer the services from this agreement to another product which is at least equivalent for the customer. This will be announced in time with a deadline of at least 3 months so that projects started can be completed.
- Amendment to this agreement. Klarso reserves the right to demand a change of this agreement for reasons of amended jurisprudence or legislation, the further development of the product or for other important reasons.
- Price adjustment. Klarso is entitled to increase the prices for the product and associated services adequately to offset personnel and other increases in costs. Such price increases will be announced to the customer by email with 30 days’ notice.
§ 11 Non-contractual use
- Non-conformity. The customer is not entitled to use the software beyond the permitted use according to this agreement or to make use of it through third parties or to make it accessible to third parties. Therefore, the customer is obliged to keep his license key confidential and to not pass it on to third parties. Unauthorized uses include in particular the modification of the software and the attempted or successful access to the software without a valid license by bypassing the access control of the license server. Third parties shall include affiliated companies which are not wholly owned by the customer. In particular, the customer is not permitted to duplicate, sell or lend the software or parts thereof, rent or lend it on a temporary basis.
- Disassembling the software. The customer is not entitled to reverse engineer, decompile or disassemble the software product or to remove copyright information or trademarks. This applies, however, only to the extent that the applicable law does not expressly permit such a possibility. A software product is licensed as a single product. The customer is not authorized to separate its components to use them on more than one computer.
- Consequences. Upon infringement of one of the essential obligations stipulated in this agreement, Klarso is entitled to inform the customer of such infringement and to demand correct licensing and / or to prohibit the further use of the software or license and / or to block access to the software. Access is not restored until the breach of the relevant essential obligation has been permanently remedied or the risk of repetition has been banished by providing an appropriate declaration of injunction to Klarso.
§ 12 Availability, planned non-availability and disruption reaction
- Availability of online services. Klarso guarantees an availability of at least 99%, averaged over the year for the download, license verification, and other server based services of its products.
- Planned non-availability. Klarso is entitled to perform maintenance, updates or backups on its hardware and software systems daily from 10 pm to 7 am of the following day, as well as on Sundays and public holidays. Planned non-availability is announced on the website www.klarso.com.
- Reaction times in case of failure of Online-Services. Klarso shall ensure that within 48 hours of receipt of an email or telephone call the fault correction is initiated (reaction time), except weekends and legal holidays and the period between Dec. 24 and Jan. 6 of each year.
- Right to modify the software. Klarso reserves the right to make changes to individual software components for reasons of modified technical conditions, the further development of the software products, or for other important reasons. The customer has to tolerate this as long as the software provides him with overall equivalent functionality.
§ 13 Warranty and Liability
- Warranty. Klarso warrants that the software is of the agreed upon nature at the time of risk transfer and corresponds to the service description according to offer or documentation.
- Beta versions. Klarso may allow the customer to access beta versions of the software or individual software features in beta version; i.e. software or features for which the release has not yet taken place in a distributed product version. For these, no warranty is accepted and liability excluded to the widest extent possible.
- Corrective action. The remedying of defects is carried out by free repair. The customer shall report the defect properly and provide Klarso with the information necessary to reproduce the defect. The customer is not entitled to remedy defects himself and to demand compensation for the expenses necessary for this, provided that the customer has not properly reported the defect and provided Klarso with adequate information necessary to reproduce the defect and Klarso has not eliminated the defect within a reasonable time period.
- Termination due to defects. The customer is only entitled to terminate the contract pursuant to § 543 para. 2 sentence 1 no. 1 of the German Civil Code (BGB) on the grounds of non-compliance with the contractual use, if Klarso has been given sufficient opportunity to rectify the defect and failed. Rectification of a defect shall be deemed failed, if it is impossible or if it is refused by Klarso or if it is delayed unreasonably by Klarso or if there are reasonable doubts as the prospects of success of a rectification or if the situation is unacceptable to the customer for other reasons. Failure to rectify the defect shall only be deemed to be impossible if Klarso refuses or delays rectification unreasonably, or if there are reasonable doubts as to the prospects of success, or if unreasonableness exists for any other reason.
- Limitation of Liability. Klarso is liable within the framework of the statutory provisions for damages, if these were caused intentionally or by gross negligence by Klarso. Klarso is only liable for slight negligence if a duty is violated, which is of particular importance for the achievement of the contractual purpose (cardinal obligation). In the case of violation of the cardinal liability, the liability is limited to the amount of the purchase price or the license fee for one year as well as to such damages, which must typically be expected as part of a software transfer of this kind. Any additional liability is excluded irrespective of its legal basis, except if Klarso’s liability is legally binding, in particular because of injury to life, body or health of a person, fraudulent concealment of a defect, assumption of an express guarantee, or the product liability law. Klarso’s strict liability for damages (§ 536 a BGB) is excluded for deficiencies existing at the time the contract is concluded.
- Limitation of Liability for Data Export. The scope of the services of Klarso ends with delivery of the files after a data export. Klarso assumes liability only in case of intent or gross negligence for usability of the exported files for certain purposes or compatibility with certain programs or the correctness of the files and / or possibility to process the files generated by the software, in particular when exporting in application data formats other than PDF or ASCII text. If, in the case of problems with the further processing of the exported files, the customer invokes software problems of the Klarso software, he is obliged to provide Klarso with information and the opportunity to rectify the problem within a reasonable period of time (usually 2 weeks). Liability of Klarso due to delays is in principle excluded.
- Limitation of liability for system requirements. A guarantee for the software can only be accepted in the agreed system environment, the system requirements are accessible on the Klarso website and on the download page. Klarso is therefore not liable for the fact that the functions of the software meet the specific requirements of the customer or work together with components in the special hardware configuration at the customer’s premises.
- Limitation of liability for software changes, misuse. Any warranty or liability is excluded for consequences resulting from alterations made by the customer or a third party to the software or through improper handling or incorrect operation of the software.
- Limitation of Liability for Data Recovery. Klarso shall not be liable for the restoration of data, unless Klarso caused the loss intentionally or through gross negligence and the customer has ensured that a regular and reliable production of backup copies (at least once a day) has been carried out so that the data can be reconstructed with reasonable effort.
- Limitation of liability for damages. Klarso shall not be liable for damages that are not caused by the software itself; In particular Klarso is not liable for lost profits of the customer, which are due to the use of the software.
- Customer responsibility. The selection, installation and use of the appropriate software as well as the desired results are the responsibility of the customer.
- Product Liability. Liability under the Product Liability Act (§ 14 ProdHG) also remains unaffected. Responsibility and liability for software or systems not covered by this agreement are excluded.
- Personal liability. Insofar as the liability is excluded or restricted, this also applies to the personal liability of Klarso’s legal representatives and senior executives. Klarso is only liable for the negligence of other vicarious agents in the scope of the liability for slight negligence according to this liability clause.
- Force majeure. Klarso shall be exempt from the obligation to perform under this agreement if and insofar as the non-performance of services is attributable to the occurrence of force majeure. War, strikes, disturbances, expropriations, cardinal legal changes, storms, floods and other natural catastrophes as well as other circumstances which are not attributable to Klarso are considered to be circumstances of force majeure.
§ 14 Copyright
- Copyright. Klarso software products are protected both by German copyright law and international copyright treaties as well as by other intellectual property laws and treaties. The software products are licensed, not sold.
- Exploitation rights. The ownership or copyrights to the software products (including, but not limited to, databases, images, text contained in the software products) and the accompanying materials are with Klarso.
- No other rights. The software product shall be treated like any other copyrighted material. By the possession, the installation or the use of the software, the customer does not acquire any rights to the intellectual property of the software, apart from the rights of use granted to him under this agreement.
§ 15 Rights of third parties
- Components. Klarso software may contain components that affect the rights of third parties. This is indicated in the corresponding software, either in text files in the installation directory and / or within the program in the menu item “About [this software]”.
§ 16 Right of revocation, right of revocation
If you are a consumer (see § 2.1), you are entitled to revoke this contract within a period of fourteen days without stating reasons.
The revocation period shall be fourteen days from the date of conclusion of the contract.
In order to exercise your right of revocation, you must inform us (Klarso GmbH, Schwartzkopffstr. 7a, 10115 Berlin, Germany), email: email@example.com by means of a clear statement (E.g. a letter sent by mail or an email) about your decision to revoke this contract.
In order to keep the revocation period, it is sufficient that you send the notification of the exercise of the right of revocation before the end of the revocation period.
Consequences of revocation
If you revoke this Agreement, we will pay back to you all the payments we have received from you, including the cost of delivery (except for the additional costs resulting from the fact that you have chosen a different type of delivery than the most favorable standard delivery offered by us) within a period of fourteen days from the date on which the notice of revocation of this contract has been received by us. For such repayment, we will use the same means of payment that you have used in the original transaction, unless we have expressly agreed otherwise; In no case will you be charged for these repayment fees.
§ 17 Data Protection, Data Security, and Confidentiality
- Privacy. Klarso strictly adheres to the relevant data protection laws. Klarso collects, processes and uses customer data for the execution of the contractual relationship, in particular also to successfully set up connections to servers over the Internet. Non-personal or anonymous data may be collected automatically to improve the operational security, functionality and handling of the software. Customer data will not be passed on to third-party advertisers without prior consent. The customer agrees that the non-personal or anonymous data collected for the purpose of processing may be transmitted to subsidiaries or authorized service providers. A detailed description regarding the collection, processing and use of personal data by Klarso can be found in the data protection declaration at www.klarso.com/privacy-statement.
- Data inspection by Klarso. Klarso will not use the Internet access to customers to forward databases, manuscript files or other files of the customer to its servers, except if such function is a clearly shown feature of the software. Klarso’s employees are prohibited from accessing, checking or making accessible to third parties in any way without the prior consent of the customer. Consent shall be deemed to have been granted if data are e.g. for solving quality problems by the customer as an email attachment, via FTP or via an Internet link or access. The customer is obligated to check these data for viruses prior to the transmission to Klarso and to use virus protection programs corresponding to the state of the art.
- Data security. The customer is obligated to copy original files in a suitable manner before use with and modification by Klarso software and to secure their original files. Klarso excludes all liability for non-observance of this data security obligation.
- Confidentiality. Klarso’s products, including software and all the manuals and documentation provided, contain essential elements (such as logic and algorithms) that constitute confidential information and business secrets and which are considered confidential information of Klarso. The customer will not disclose confidential information of Klarso to third parties and use it only in accordance with these conditions. The confidential information is also protected in particular by US, EU and international patent or copyright laws.
§ 18 Final provisions
- Modification of these General Terms and Conditions. Klarso is in principle entitled to change these terms and conditions. Klarso will inform the customer at least six weeks before the change becomes effective. The change is deemed approved if the customer does not object to Klarso within 15 days of receipt of the change notification. Klarso will point out this effect of silence to the customers in the change notification. If the customer rejects the change, the contract shall be continued under the existing terms without giving effect to such amendment.
- Law and jurisdiction. This Contract will be governed by the laws of the Federal Republic of Germany. Such governing laws are exclusive of any provisions of the United Nations Convention on Contracts for Sale of Goods, including any amendments thereto, and without regard to principles of conflicts of law. The place of jurisdiction is Berlin. If the customer is a consumer (see § 2.1), this choice does not apply if and insofar as this would lead to the withdrawal of customer rights granted to him by those provisions which can not be derogated by agreement under the law that would govern the contract in the absence of a choice of law in accordance with Article 6 (1) of the Rome I Regulation. If the customer is not a consumer (see § 2.1) the exclusive jurisdiction is Berlin; in this case, Klarso remains entitled to sue at the seat of the customer.
- Transferability. A customer may transfer the rights from this contract to third parties only with the prior written consent of Klarso. Klarso, on the other hand, is entitled to transfer the rights and obligations arising from this contract to a third party; Section 354a HGB shall remain unaffected.
- Communication via email. All communications and statements in connection with this agreement may also be made by email. For this purpose, the email address specified by the customer at the time of registration or in the customer’s account can be used. The customer will retrieve these regularly and will notify Klarso of changes to his email address.
- Language. In the case of a different interpretation of the English and German version of this agreement, the German version shall prevail.
- Severability clause. Should a part of the contract to be concluded be invalid, the effectiveness of the contract shall remain unaffected. The provision which has ceased to apply shall be replaced by a provision which is as close as possible to the economy as closely as possible.