Terms and Conditions of NeptuneLabs GmbH – Software Development

Updated: May 2013

Preamble

Subject of the “Terms and Conditions – Software Development” is the regulation the of the contract terms for contracts concerning work labour of NeptuneLabs GmbH, located in the 32657 Lemgo, Germany with the client for creating or customizing software. In each case the terms and conditions are valid at the time the contract was amended.

§ 1 Applicability

These terms of sales are exclusive. Contradictory or deviating conditions of the buyer, especially conditions of purchase, are only accepted if an explicit agreement of NeptuneLabs in written form is received. All agreements made between NeptuneLabs and the buyer, which are made in context of contract execution, are needed to be delivered in written form.

§ 2 Offer

In case that the order is to be considered as an offer according to § 145 BGB, we may accept it within 2 weeks, unless in the offer a longer period is stated. If an adaption of software was offered to the customer, the special conditions stated in “Terms and Conditions – Software Development” apply.

§ 3 Scope Of Services

The valid scope of service is worded in written form and defined per contract, submitted proposal or by functional specification document.

§ 4 Rights Of Third Parties

NeptuneLabs ensures that the work performed within this contract affects no rights of third parties and that there is no knowledge of other which would limit or exclude the use of the software in some way.

§ 5 Source Code

The source code remains at NeptuneLabs, who are committing themselves to store this at a safe place, and to remove problems which affect the contract immediately upon request of the client solely by using the source code.
All forms of reverse engineering of the final product are strictly prohibited.

§ 6 Nondisclosure

The parties mutually commit themselves to treat all information received in context of the contract as confidential and to keep them keep secret indefinitely.

§ 7 Submitted Documents

For every documentation, which is submitted to the purchaser in context of order placement (e.g. offers, calculations, drawings etc.), we reserve ownership and copyright. The documents must not be made available for third parties, unless NeptuneLabs agreed on this with the client explicitly in written form.

§ 8 Approval

The approval needs to be delivered in written form and shall require the signature of the client. Minor deficiencies or deviations of the original commission do not discharge of the approval. The same applies if the required threshold of originality for intellectual creations can not be aligned with the arrangements of the client. If there is a failure to sign the approval, the approval will be valid 14 days after the signing period.

§ 9 Payment

(1) The payment of the agreed amount shall be made after the acceptance and billing by the client in full within 10 days. The same applies for subsequent invoices for maintenance, service or hosting attendances, if commissioned.

(2) Cash discount is prohibited in principle.

(3) Prices are exclusive of VAT. VAT will be shown separately and billed.

(4) If the purchaser is in deliquency of payment, which occurs within 14 days after the invoice date without further exhortation, default charges consisting of 5 percent over the normal base rate will be calculated. The claim for higher damages caused by delay remains reserved.

§ 10 Offsetting And Right Of Retention

The client only has the right to compensation if his counterclaims are legally established, if they are undisputable or acknowledged by us. In order to exercise a retention, the buyer is only authorized in this respect as his counterclaim is based on the same contractual relationship.

§ 11 Delivery

Unless otherwise provided, the delivery of software always takes place via internet. For this purpose, an option to download the product will be provided to the client. The same also applies for any license keys which are needed to use the software.

§ 12 Transfer Of Risk

If the goods are shipped upon request of the buyer, the liability for accidentally destroyed or damaged goods is transferred to the client with the dispatch of the goods, at the latest when leaving the factory / warehouse. This applies regardless of whether the shipment of goods is done from the place of performance or the person which takes the responsibility for freight cost. If goods are delivered via internet, the risk is transferred when the transmission licenses takes place.

§ 13 Reservation Of Ownership

(1) The client only acquires a license for the use of the software, not the software itself. The client acknowledges that he does not acquire any ownership of the software itself or intellectual property contained within. The software license (EULA) bundled with the software is to be respected and complied by the client.

(2) We reserve the ownership of the delivered goods until full payment of all claims against of the supply contract is received. We have the right to repossess the goods if the client acts contrary to the agreement. The withdrawal of the goods does not constitute withdrawal from the contract, unless this is explicitly declared in written form.

(3) The customer is obliged to treat the goods with care, as long as ownership has not been transferred to him. In particular, he is obligated to insure the goods to the sufficient replacement value at his own expense against theft, fire and water damage. If maintenance and inspection work is needed to be carried out, the client is due to perform this at his own expense in time. As long as the ownership has not been transferred, the client must notify us in written form immediately if the case of seizure or other interference by third parties applies. If the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit according to § 771 ZPO, the customer is liable for our financial loss.

(4) The purchaser is entitled to resell the goods within the normal course of business. The purchaser here and now assigns to us the receivables from the resale of the conditional goods in the amount of the final invoice total agreed with us (including addedvalue tax). This assignment applies regardless of whether the goods have been resold without or with processing. The customer remains entitled to collect the claim even after the assignment is conducted. Our authority to collect the receivables ourselves remains unaffected by this. However, we will not undertake any action to collect the claim as long as the client fulfils his payment obligations arising from the collected profits, is not in default of payment and, in particular, application has not been made to open insolvency or composition proceedings and cessation of payments has not taken effect.

(5) The processing or working or transformation of the purchase item by the buyer shall always occur in the name of and on behalf of NeptuneLabs GmbH. Any processing or modification by the buyer of the goods sold is prohibited.

§ 14 Liability And Warranty

(1) NeptuneLabs is liable only for errors due to gross negligence or intent, unless a contractual obligation is concerned. In case of loss or damage of media the liability for the replacement of lost data is excluded, unless barred by compelling law. In any case, liability is limited to the amount of compensation.

(2) The regulations of the end-user license agreement (EULA) are valid. The end user license agreement is enclosed to all software packages and updates. It is also available here. If you are unable to access this, we will send you the EULA upon request in written from.

§ 15 Final Provisions

Contract modifications or additions should be recorded in written form. Detmold, Germany will be the solely place of jurisdiction for all disputes arising from the contractual relationship. In any case, German law applies.
This translation of the original German contract is for informational use only.
NeptuneLabs assumes no responsibility or liability for any errors or inaccuracies that may appear in this translation except for intentional fraud.