1.1.The object of the Contract is the provision of the software Docusnap (hereinafter referred to as “Software”) by the company itelio GmbH, Franz-Larcher-Str. 4, D-83088 Kiefersfelden, (hereinafter referred to as “Licensor”) to the user of the Software (hereinafter referred to as “Licensee”). Docusnap is a computer program for the inventory, documentation and analysis of IT infrastructures.
1.2.The Software is either provided permanently (purchase option) or temporarily (rental option) .
1.3.The Licensor’s offer is solely aimed at commercial customers and public bodies. The customer assures that it is not a consumer in the sense of § 13 BGB [German Civil Code].
1.4.The Software is offered in various product editions: Free, Basic, SAM, Security, Premium and Ultimate.
a.Docusnap Free: Edition of the Software with limited functionality for the inventory, documentation and analysis of up to 25 computer systems. The actual size of the network is irrelevant. The Free Edition contains advertising overlays and captures and transmits statistical data to the Licensor to the extent described in § 13.3.
b.Docusnap Basic, SAM, Security, Premium and Ultimate Edition: Editions of the Software without the limitations of the Free Edition. The exact scope of performance of the individual editions is available
at www.docusnap.com/en/products/features-at-a-glance .
The Basic, SAM, Security, Premium and Ultimate Editions are licensed according to § 2 depending on the respective network size.
c. Docusnap Enterprise: Licensees who purchased the Enterprise Edition of the Software in the past can use the Software to the functional extent provided by the Ultimate Edition with the limitation that the use of the Docusnap Discovery Services requires the purchase of a separate licence, which is calculated according to § 2.1.
1.5.The demo version of the Software enables the use of the Software in the Ultimate Edition for a limited time for the purpose of testing the Software. Once this test phase has expired, the Software changes automatically to the Free Edition with the corresponding use limitations pursuant to § 1.4.a.
2.1. The basis for the calculation of the licence is the sum of all network sizes captured with the Software. The network size is the sum of all systems (work stations and servers) in a network. This includes Windows systems (server and desktop operating systems), Linux and Mac OS/X systems, Unix and Thin-Clients. Both virtual and physical systems are counted. Mobile devices (smartphones, tablets) and SNMP systems such as routers, printers, switches and other active network participants are excluded from the calculation.
2.2.When using the Software, the Software verifies the licensed number of systems with the actual number of systems to be inventoried. Additionally, a verification against the existing active computer accounts in the Active Directory Services (ADS) is performed. If the number of systems to be inventoried or the existing computer accounts exceed the licence size, the functionality of the Software is limited.
§3.Conclusion of the Contract
When placing an order in the Licensor’s web shop, the Licensee issues a binding offer to conclude a purchase contract (purchase option) or to conclude a rental contract (rental option). The contract is concluded when the Licensor accepts the offer in the form of an order confirmation by email.
4.1.Purchasing and rental option
The purchase prices or the rent for the Docusnap Basic, SAM, Security, Premium and Ultimate Editions are calculated depending on the selected product edition and the sum of all network sizes pursuant to § 2.1 on the Licensor’s website with a licence calculator and shown during the order process in the web shop.
The Docusnap Free Edition is provided to the Licensee free of charge. It contains advertising overlays and captures and transmits statistical data to the Licensor to the extent described in § 13.3. A deactivation of the anonymous data collection and transmission is precluded.
5.1.In the case of the rental option, the rental contract is concluded for a specified period. The Licensee can select from different rental periods when concluding the contract. On expiry of the rental period selected by the Licensee, the rental contract is extended automatically by the duration of the rental period, unless it is terminated before expiry of the rental period in the customer portal. Termination may also be in writing or in text form. Termination in writing or in text form must be received by the Licensor at the latest one week before expiry of the rental period.
5.2.The option of extraordinary termination for an important reason remains unaffected. An important reason exists if, under consideration of all the circumstances of the individual case and under consideration of the mutual interests, the terminating party cannot reasonably be expected to continue the contractual relationship until the agreed expiry. This is in particular the case if insolvency proceedings are opened against the Licensor’s assets and the insolvency administrator refuses to enter into this Contract.
6.1.In the case of the purchase option, the Basic, SAM, Security, Premium and Ultimate Editions can only be purchased together with a Docusnap Service Contract provided by the Licensor that is valid for at least one year. The object of this separate contract is the further development of the Software and the support.
6.2.The separate conditions of the Docusnap Service Contract apply.
7.1.The Software can be downloaded by the Licensee on the Licensor’s website www.docusnap.com. The Licensee must ensure that it suitably and durably secures the downloaded installation file for any later re-installations.
7.2.The Software is installed by the Licensee, unless agreed otherwise.
8.1.The Software has been developed and tested by the Licensor in good faith. Nevertheless, the Licensor is not able to simulate all possible system and software environments and test the Software for corresponding, long-term compatibility. The Licensee must ensure that the Software is tested by qualified IT staff before use in productive systems and system environments, in particular the effects on systems and networks with regard to the interoperability with other computer programs. The Licensor shall not be liable for downtimes due to the disregard of this obligation.
8.2.The Licensee has an increased obligation pursuant to § 8.1 in areas with a particular risk in the sense of § 9.4.d.
8.3.The Licensee must inform the Licensor immediately if any anomalies arise during the use of the Software, in particular in the case of incompatibilities and negative effects on systems and networks.
9.1.The Licensee has the non-exclusive, non-transferable right to use the Software within the framework of the following conditions of use. The above right of use is not limited by time in the case of the purchase option and is limited to the duration of the rental period in the case of the rental option.
9.2.The Licensee can only use the Software if it activates the Software online following installation. For this, the Licensee must enter an activation code which it receives from the Licensor by email. If there is no internet connection, the Licensor also offers the option of an offline activation. On expiry of the rental period, the Software is deactivated by the Licensor.
9.3.The Software may not be passed on to third parties or decompiled (i.e. returned into the source code) without the agreement of the Licensor, unless this is expressly permitted through this licence agreement or by law. If reverse engineering, decompiling or disassembling (hereinafter referred to as “Decompiling”) is required to achieve interoperability with other computer programs, the Licensee must contact the Licensor prior to Decompiling the Software and request provision of the information required to achieve such interoperability. If the Licensor provides this information for the interoperability without culpable hesitation, the Licensee is not entitled to Decompile the Software.
9.4.The Licensee is not entitled to, either itself or through a third party:
a.sub-license or sell, let, loan or lease the Software or any part of the Software;
b.change the Software in its entirety or in part or to create derivative works that are based in whole or in part on the Software;
c. remove the Software’s existing protective mechanisms against unauthorised use or to circumvent them, unless this is required to achieve error-free use. Copyright notices, serial numbers as well as any Software identification features must also not be removed or changed. The same applies for a suppression of the on-screen display of such features;
d.use the Software without the Licensor’s express written agreement (prior consent) in high-risk areas that require fault-free permanent operation of relevant systems where an error in the Software may result in immediate danger to life, limb or health or in considerable material or environmental damages (high-risk activities and high-availability activities, in particular the operation of nuclear power stations, weapons systems, aviation navigation or aviation communication systems, life support systems or appliances, machine and production processes in the manufacturing of pharmaceuticals and foods). Without its express written agreement, the Licensor shall not warrant and guarantee that the Software is suitable for high-risk activities and high-availability activities.
9.5.The above rights of use are granted subject to conditions precedent at the point in time the full purchase price is paid or, as applicable, when the full rent is paid. Until this point in time, the Licensor agrees to the use of the Software in accordance with the above conditions.
For the Basic, SAM, Security, Premium and Ultimate Editions, the Licensor develops the Software further and provides support within the framework of the Docusnap Service Contract (§ 6).
For the Basic, SAM, Security, Premium and Ultimate Editions, the Licensor develops the Software further and provides support without a separate remuneration to the Licensor being due. §§ 2, 3, 4, 5, 6, 8, 9 and 10 of the Docusnap Service Contract apply accordingly.
For the Free Edition, the Licensor’s performance is limited solely to the provision of the Software. The Licensor does not provide any support; there is no entitlement to further development.
11.1.Technical data, specifications and performance indications in public statements, in particular in adverts, do not constitute indications of quality. The functionality of the Software is dependent on the description in the user documentation that can be viewed on the Licensor’s website and its supplementary agreements.
11.2.The Licensor warrants the functionality of the Software only within the framework of the respectively applicable system requirements that can be viewed on the website www.docusnap.com.
a.In the case of the purchase option, claims for defects lapse within a period of twelve months from first activation.
b.Subsequent fulfilment is provided exclusively through removal of the defect. The defect is usually removed by providing an update.
c. Until the Licensee has paid the remuneration due pursuant to this Contract in full and does not have a legitimate interest in retaining the full remuneration, the Licensor is entitled to refuse subsequent fulfilment.
a.The Licensor warrants the maintenance of the contractually agreed condition of the Software for the contract term and also that the use of the Software according to the contract does not violate any third-party rights. The Licensor shall remove any material and legal defects of the Software that arise in due course.
b.The Licensee is obligated to inform the Licensor of defects of the Software on discovery without delay. For material defects, this includes the description of the time the defect occurred and the circumstances.
c. Strict liability for initial defects pursuant to § 536(1) BGB is precluded. The Licensor’s liability for culpability remains unaffected.
Warranty rights are precluded for the Free Edition.
11.6.The Licensee shall support the Licensor in the detection and removal of defects and, in particular, provide error information (EventLog, DocusnapLog, Remote Analysis Option) that show the circumstances in which the error occurred.
12.1.The Licensor is strictly liable only in the case of intent or gross negligence and in the case of a negligent violation of fundamental contractual obligations, without the fulfilment of which an orderly execution of the contract would not be possible and on the compliance with which the contractual partner may ordinarily rely. The Licensor’s liability for damages arising from injury to life, limb or health is unlimited. In the case of the Free Edition, the Licensor is solely liable in the case of intent and gross negligence; a liability for simple negligence does not exist.
12.2.In the case of simple negligence, the Licensor’s liability is limited per claim to the foreseeable loss typical for the contract, at maximum however to the amount that the Licensee paid for the Software as purchase price or, as applicable, as rent for the selected rental period.
12.3.Liability pursuant to the German Product Liability Act remains unaffected by the sections above.
12.4.The Licensor must take the due care and attention usual to this particular industry. When determining whether the Licensor is at fault, the Licensee and the Licensor agree that it is not possible to produce the Software without any errors.
12.5.The Licensor shall not be liable for the loss of data and/or programs if the damage is the result of the Licensee failing to undertake daily data backups and to thus ensure that lost data can be restored with an acceptable effort.
12.6.The above regulations also apply towards the Licensor’s fulfilment agents.
13.1.The Licensor undertakes to comply with the German data protection regulations.
13.2.When activating the Software online, an activation key is transmitted online and stored. This activation key is used to verify the Licensee’s rights of use.
13.3.The Licensee agrees to the Software regularly capturing data on the functionality of the Software and transmitting it to the Licensor, who will store and analyse the data for the purpose of improving the Software. The capturing, storage and analysis of the Software is performed in a fully anonymised form and does not contain any personal data. The data will not be sold on under any circumstances. This data collection and analysis can be deactivated in the Basic, SAM, Security, Premium and Ultimate Editions.
14.1.In the case of the rental option, the Licensor reserves the right to change this licence agreement at any time under compliance with a suitable notice period of at least six weeks. Notice is provided by sending the changed licence agreement in text form to the Licensee under indication of the point in time from which the change shall come into force.
14.2.If the Licensee does not object to the changed licence agreement within six weeks of receipt in written or text form, the changed licence agreement is considered to have been accepted.
14.3.If the Licensee objects in due time pursuant to the above section, both parties shall be entitled to terminate the contract at the point in time at which the change of the licence agreement comes into force. The Licensee shall be reimbursed by the Licensor for any rent already paid for the future.
15.1.Should individual provisions of this Contract be or become ineffective in whole or in part, the validity of the remaining provisions shall not be affected. The parties already agree at this stage that in this case the invalid provision shall be replaced by a valid provision that is as close as possible to the economic intent of the invalid provision. The same applies to any regulatory gaps contained in the Agreement.
15.2.A right of retention can only be exercised on the basis of counter claims arising from the respective contractual relationship.
15.3.The contractual parties may only offset claims that have been determined by a court of law or that are undisputed.
15.4.German law under exclusion of UN sales law applies.
15.5.The exclusive place of jurisdiction for all disputes arising from or in connection with this Contract is the court responsible for the location of the Licensor’s head office, providing the Licensee is a merchant.
1.1.The object of this Contract is the further development of the software Docusnap (hereinafter referred to as “Software”) and the provision of support services by the company itelio GmbH, Franz-Larcher-Str. 4, D-83088 Kiefersfelden, (hereinafter referred to as “Agent”) to the Principal within the framework of the Docusnap Licence Agreement.
1.2.The Service Contract can only be concluded within the framework of the purchase option of the Software (§ 1.2 of the Docusnap Licence Agreement). In the case of the rental option, the further development and the support of the Software are paid for with the rent.
1.3.Outside the statutory warranty rights that exist on the basis of the Licence Agreement and that remain unaffected by this Docusnap Service Contract, the Agent provides the following performances (services):
a.The further development of the Software (§ 2) as well as
b.The provision of support services and a service desk (§ 3).
2.1.The Agent provides further developments of the Software in the form of updates for download. With the updates the Software is improved, functions are added and it is aligned with the state of technology.
2.2.Further developments of the Software pursuant to § 1 shall be provided by the Agent to the Principal during the term of the Docusnap Service Contract without further remuneration. Version upgrades of the Software (e.g. from Docusnap 10 to Docusnap 11) are also included in sentence 1. The updates shall be included in the Docusnap Service Contract in regard of time if the day of the first possible download of the update is within the contract term of the Docusnap Service Contract. There shall be no entitlement to customer-specific further development.
3.1.In the event of any problems with the Software, the Agent shall provide assistance and support to the Principal by telephone or through other long-distance communication methods.
3.2.A service desk is provided for the Principal on working days (Monday - Friday excluding statutory holidays at the location of the Agent’s head office) between 8:00 am and 5:00 pm CET/CEST (UTC+1/UTC+2). During this time the Agent shall also respond to any reported problems and queries received from the Principal by email.
3.3.When reporting problems with the use or application of the Software, the Principal shall provide as much detail as possible and describe the problem symptoms, the conditions of use, previous instructions to the Software, the number of workstations affected, a description of the system and hardware environments including any third-party software used. Each report must be made immediately after discovering the problem. The participation obligations of § 5 apply.
3.4.The support and the service desk assist the Principal in removing the problems listed in section 3. The support and service desk provide services in the context of a solution for a particular case. The support and the service desk do not provide training.
4.1.Pursuant to this Docusnap Service Agreement, subject to deviating conditions in individual cases, there shall be no entitlement to the following performances:
a.The adaptation of the Software to versions used by other users or that are sold by the Agent.
b.The adaptation of the Software to a changed hardware or software environment, including the adaptation to changed operating systems.
c.The adaptation of the Software to statutory or other sovereign requirements.
d.The removal of errors caused by the Principal or third parties, including the service disruption by third-party software.
e.The installation of the Software supplied within the framework of this Contract.
f.The instruction and training of the Software users.
4.2.The list in § 1 is not conclusive. If performances are not named, it cannot be deduced that these performances are part of the Agent’s contractual obligations.
4.3.If necessary, the Agent agrees to provide performances that are undue according to this Contract on the basis of a separate agreement against a separate remuneration.
5.1.The provision of the services pursuant to this Contract is subject to the use of the Software by the Principal in its most current version. Further, the Principal must comply with the respectively valid system requirements that can be viewed on the Agent’s website www.docusnap.com.
5.2.The Principal shall support the Agent fully in the provision of services pursuant to this Contract and in particular provide information for the removal of problems (EventLog, DocusnapLog, Remote Analysis Option) that show the circumstances in which the problem occurred. If the Agent is obligated to provide services for which it must access the Principal’s IT system by way of long-distance data transmission, the Principal must enable the corresponding access to the Software through the internet. Access is obtained through an encrypted connection.
5.3.If it transpires that a problem reported by the Principal does not actually exist or is not due to the Software (false problem), the Principal shall bear the costs incurred by the Agent in the course of the problem analysis and other processing in accordance with the Agent’s respectively valid price list for services, unless the Principal would not have been able to recognise the existence of such a false problem even by taking due care.
6.1.The updates are developed and tested by the Agent in good faith. Nevertheless, the Agent is not able to simulate all possible system and software environments and test the update for corresponding, long-term compatibility. The Principal must ensure that the update is tested by qualified IT staff before use in productive systems and system environments, in particular the effects on systems and networks with regard to the interoperability with other computer programs. The Agent is not liable for downtimes due to the disregard of this obligation.
6.2.The Principal has an increased obligation pursuant to § 1 in areas with a particular risk in the sense of § 9.4.d of the Docusnap Licence Agreement.
6.3.The Licensee must inform the Licensor immediately if any anomalies arise during the use of the Software, in particular in the case of incompatibilities and negative effects on systems and networks.
7.1.The service charge for the services provided pursuant to this Contract is set at 19 % of the net list price of the Software excluding the respectively applicable statutory VAT. This applies regardless of whether and how frequently the services pursuant to this Contract are used.
7.2.The service charge is paid in advance.
8.1.The Agent is strictly liable only in the case of intent or gross negligence and in the case of a negligent violation of fundamental contractual obligations, without the fulfilment of which an orderly execution of the Contract would not be possible and on the compliance with which the contractual partner may ordinarily rely. The Agent’s liability for damages arising from injury to life, limb or health is unlimited. In the case of simple negligence, the Agent’s liability is limited per claim to the foreseeable loss typical for the Contract, at maximum however to the amount that shall be paid per year as a service fee pursuant to this Contract.
8.2.The Agent must take the due care and attention usual to this particular industry. When determining whether the Agent is at fault, the Principal and the Agent agree that it is not possible to produce the Software without any errors.
8.3.The Agent is not liable for the loss of data and/or programs if the damage is the result of the Principal failing to undertake daily data backups and to thus ensure that lost data or programs can be restored with an acceptable effort.
8.4.The above regulations also apply towards the Agent’s legal representatives, employees and fulfilment agents.
If the Agent provides updates within the framework of the further development of the Software, it grants the Principal the rights of use to these in accordance with the provisions in § 9 of the Docusnap Licence Agreement.
10.1.The parties undertake to maintain confidentiality regarding all confidential processes, in particular business or operating secrets of the other contractual party that become known to them in the course of the preparation, execution and fulfilment of this Contract and to not disclose these or use them in any other way. This applies towards all unauthorised third parties, i.e. also towards unauthorised employees, both own employees and those of the contractual partner, unless the disclosure of information is required for the orderly fulfilment of the Agent’s contractual obligations. If in doubt, the contractual party in question is obligated to ask the contractual partner for consent before such a disclosure. This confidentiality obligation shall also remain in force once this Contract has ended.
10.2.The Agent shall commit its employees and other fulfilment agents to data confidentiality pursuant to § 5 BDSG [German Federal Data Protection Act]. Should processing of the Principal’s data by the Agent become necessary within the framework of performances pursuant to this Contract, the parties shall enter into a separate agreement on this.
11.1.This Docusnap Service Contract is concluded for a limited period of time. Ordinary termination is precluded.
11.2.This does not affect the right of both parties to terminate the Contract for an important reason. This is in particular the case if insolvency proceedings are opened against the Agent’s assets and the insolvency administrator refuses to enter into this Contract.
12.1.The Principal may only offset claims against the Agent’s remuneration claims pursuant to this Contract if the Principal’s claims have been determined by a court of law or are recognised by the Agent. Rights of retention on the basis of remuneration owed can also be exercised due to the unjustified failure to fulfil the Principal’s obligations arising from the Licence Agreement.
12.2.Should individual regulations of this Contract be or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected. The parties undertake to agree a valid replacement provision that is as close as possible to the economic intent of the invalid regulation.
12.3.German law under exclusion of UN sales law applies.
12.4.The place of fulfilment for all performances of the Agent arising from this Contract is the location of the Agent’s head office, unless the fulfilment has to take place at another location due to very nature of the matter.
12.5.The exclusive place of jurisdiction for all disputes arising from or in connection with this Contract is the court responsible for the location of the Agent’s head office, providing the Principal is a merchant.