GTC - GI Geolabs GmbH

General Terms and Conditions of GI Geolabs GmbH

Updated: May 2015

Scope of Standard Terms and Conditions of Business
1. These standard terms and conditions of business set out below (hereinafter referred to as “Terms”) shall apply to any and all agreements by GI Geolabs GmbH, Morellstraße 33, 86159 Augsburg, Germany (hereinafter referred to as “GI Geolabs”) with its Customers concerning the delivery of its Products and/or Services.
2. These Terms shall apply to both Entrepreneurs and Consumers.
3. In the event that the Customer is an Entrepreneur, these Terms shall also apply to any and all future agreements between GI Geolabs and such Customer without any further reference to them provided that such Customer has been reasonably given the opportunity to recognize these Terms.
4. In addition to these Terms, the EULA shall be applicable to any use of Products and in case of Services, the respective SLA shall be applicable in addition to these Terms. In case of conflict between these Terms and the EULA and/or the respective SLA, the provisions of these Terms shall prevail.
5. These Terms apply exclusively and shall prevail over any other general terms and conditions of the Customer without any reservations even if the same has been communicated to GI Geolabs except where GI Geolabs has approved in writing. These Terms also apply in cases where GI Geolabs provides its Products and/or Services to the Customer without any reservations and in knowledge of the contradicting or differing terms of the Customer.
6. GI Geolabs reserves the right to change, update, amend or modify these Terms at any time. Such changes will be notified to the Customer in writing (email will be sufficient). The Customer may object to the notified changes. If the Customer does not object to notified changes or any part thereof, within four (4) weeks after receipt of the notification (hereinafter referred to as “Objection Period”), the notified changes are considered to be accepted unequivocally by the Customer. If the Customer objects to the notified changes within the Objection Period, the agreement will continue on the present Terms. Objections, notifications and other notices by the Customer to GI Geolabs shall be sent to the address at the end of these Terms.
Definitions
The following definitions shall apply for the scope of these Terms:
1. Computer – shall mean any device capable of processing data with the assistance of a programmable calculation specification.
1. Computer Programme – shall mean GI Geolabs’s Computer Programmes in their object code format, including any and all Updates and Upgrades thereto that GI Geolabs makes available and for which GI Geolabs has granted.
2. Consumer – shall mean any natural person in the sense of Section 13 of the German Civil Code (Bürgerliches Gesetzbuch, „BGB“) who is provided with any Software from GI Geolabs for personal or for use involving his/her family.
3. Documentation – shall mean any written materials, in printed or electronic form, describing the features of the Software and/or Updates and Upgrades and that are designed to assist you in effectively utilizing the Software, Updates and/or Upgrades. Such Documentation does not affect, amend or alter these Terms of the EULA.
4. ELA – shall mean a special license agreement („Enterprise License Agreement“) for entrepreneurs, corporate bodies, institutions, and foundations.
5. Entrepreneur – shall mean any natural person, legal entity or partnership with legal capacity in the sense of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch, „BGB“) that is upon ordering or receiving Software of GI Geolabs performing its commercial, independent professional or other work and not engaged in personal or familial usage.
6. EULA – shall mean the End User Licence Agreement of the respective GI Geolabs entity, which has to be accepted by the Customer before any use of the Products. It defines the Customer‘s rights of use for the respective Products under the relevant agreement and is available for download on www.avira.com.
7. Fee – shall mean the License fee to be paid for Software of GI Geolabs.
8. License – shall mean your right to use the Software subject to this EULA and the Terms and Conditions applicable as of the date of conclusion of the relevant agreement. The License shall govern the nature and scope of your right to use the Software.
9. License Data – shall mean the data that is generated through the import of the license key into the „license administration“, and the subsequent export therefrom.
10. License Term – shall mean the period for which a License to Software has been granted.
11. Maintenance Service – shall mean a Service by GI Geolabs to Customers which have entered into an SLA that is still in effect or within its first year of term at the time of such Service, by which the Customer is entitled to retain and use all Technical Support and all Updates and Upgrades.
12. Malware – shall mean any software and any other dataset that causes damaging or undesirable functions in the Computer or in the system of a user.
13. Multiple License – shall mean the License for Multiple Use.
14. Multiple Use – shall mean simultaneous storage, simultaneous retention and any other simultaneous use of Software on several Computers and any use of such Software for which special licenses for Multiple Use are provided according to the respective product information.
15. Product – shall mean GI Geolabs Software including the respective Update Service and user handbooks or other goods by GI Geolabs.
16. Reseller – shall mean a Customer to whom Products or Services are provided expressly for the purpose of resale.
17. Service – shall mean all services by GI Geolabs.
18. Service Year – shall mean the term of one (1) year as of the day on which the License has been granted, in the course of which the Customer is entitled to retain the Maintenance Services.
19. SLA – shall mean the service level agreement of GI Geolabs a Customer has to conclude prior to retaining Services and that stipulates the rights of use of the Customer under the agreement that such Customer concluded with GI Geolabs. See www.GI Geolabs.com.
20. Software – shall mean computer programmes of GI Geolabs in their object code, including any and all Updates and Upgrades thereof that GI Geolabs makes available and for which GI Geolabs has granted a Licence to the Customer.
21. Software Key – shall mean an encrypted code that identifies the provided Software and is necessary for installation and access to Updates/Upgrades.The Software Key is an integral component of the Software. By sending the respective Software Key, GI Geolabs grants the Customer the Licence.
22. Technical Support – shall mean any Service GI Geolabs to Customers by which an SLA is concluded that is still in effect and through which Costumers, in the event of technical problems with Products, are entitled to retain the service of expert staff of GI Geolabs, in writing, by e-mail or by phone, for the purposes of resolving the given technical problems.
23. Trial License – shall mean a License to use the Software for testing purposes for a limited period of time and free of charge.
24. Trial Version – shall mean all Products and Services made available to Customers for a limited or unlimited period of time and free of charge.
25. Updates und Upgrades – shall mean the updating of the Software. Classification of the updating as an Update or Upgrade is at GI Geolabs’s sole discretion.
26. Update Service – shall mean the ongoing updating of a Computer Programme or Software through Updates and/or Upgrades and the provision of such Updates and Upgrades to Customers by GI Geolabs.
Offer and Conclusion of the Agreement
1. The presentation of Products and Services on the internet and in prospectuses, catalogues and brochures shall serve to inform the Customer only. They shall not constitute any binding offer by GI Geolabs, but rather an opportunity for the Customer to make a binding contractual offer in the form of an order (hereinafter referred to as “Order”).
2. A legally binding agreement between GI Geolabs and the Customer shall be concluded if the Customer places an order and GI Geolabs accepts such order by way of an order written (Section 126 of the German Civil Code (Bürgerliches Gesetzbuch, „BGB“)) or electronic (Section 126a of the German Civil Code, email will be sufficient) or provision of the Products and/or Services to the Customer, e.g. per download or provision of a Software Key).
3. Any and all orders accepted by GI Geolabs are subject to these Terms and the applicable EULA and/or applicable SLA.
4. Should the Customer be entitled to withdraw from the agreement based on any applicable statutory withdrawal right and should the Customer perform this right within the relevant statutory period, the EULA and/or the SLA shall be withdrawn at the same time. In case of such withdrawal GI Geolabs will refund the Customer any Fees that have already been paid for the respective Product or Service according to any applicable statutory provisions. In this context, the Customer is not entitled to apply for or initiate a return debit note (“Rücklastschrift”) with its bank. In case of non-compliance, GI Geolabs shall be entitled to reclaim from the Customer the additional costs for such return debit note which is charged by Customers’ bank.
5. Any deviations from and modifications to these Terms must be expressly agreed between the parties, in writing. For GI Geolabs such deviations and/or modifications shall only be valid, when executed by authorized GI Geolabs employees jointly by two in writing or by single signature when authority for sole representation is granted by entry into the commercial register.
Subject Matter of the Agreement
1. The subject matter of agreements which are concluded subject to these Terms between the Customer and GI Geolabs shall be the Customer’s rights to use the Products and/or Services in accordance with these Terms and the EULA and/or the SLA. Upon payment of the agreed Fee, the Customer shall be granted with these rights of use.
2. By buying a Product the Customer is granted, subject to these Terms, a perpetual License.
3. With regard to Computer Programmes for which an SLA has been concluded, the License shall include :
  1. a non-exclusive, non-transferable (with the exception of clause 9. below) right to use the Software free of charge for the Licence Term, and
  2. a right to retain Update Services during the term of the SLA.
4. License Activation
  1. The License is activated by the transmission of the Software Key tot he Customer (hereinafter referred to as „License Activation“).
  2. The License Activation required to utilize the Product shall be effected via the programme „license administration“ of GI Geoinformatik GmbH. The License Key is imported into the „license administration“ and subsequent export into the License Data. The Customer sends the License Data to GI Geolabs by e-mail. Following that GI Geolabs activates the License and sends it tot he Customer. Subsequently the Customer imports the License Data into the “license administration” by which the License is activated.
  3. The License Data contains information regarding the hardware components of the Computer from which the License Data was exported. If a Customer exchanges hardware components of his Computer the License might be deactivated. In such event the Customer shall contact GI Geolabs or its respective Reseller. The same shall apply if a Customer intends to transfer ist License from one Computer to another without having purchased a Multiple License.
5. GI Geolabs does not sell its Products, Software, and Computer Programmes but solely grants licenses thereto Any and all other rights in the Products and Services, in particular the title (except where the Products are provided in perpetuity and against payment), and any and all other rights of publication, reproduction, processing, translation and other exploitation rights, shall be retained by GI Geolabs.
6. After an agreement has been withdrawn, rescinded or terminated, the Customer’s Licence for the Products or Services shall be terminated. The Customer shall receive no further Updates/Upgrades from GI Geolabs and will not be granted further Access to systems or receive Services. The Customer shall dispose of all Software, in particular, the original data carriers, any backup copies and the Software data files stored on its Computer system. GI Geolabs may demand a written confirmation by the Customer declaring that the data has been deleted in full.
7. Upon expiration of the SLA the License persists for the Customer. Notwithstanding the aforesaid the Customer shall not receive any more Updates/Upgrades and shall not have access to systems or Services.
8. Every computer software has a specific product life cycle resp. certain system requirements. These are defined mandatory by the operating systems with which the computer software is compatible until a certain point of time. Furthermore these system requirements define which software resp. version of a third-party supplier software is necessary to use the products from GI Geolabs which interacts with the software of other third-party suppliers. If a customer updates software of a third-party supplier it can be possible that the proper operability of a GI Geolabs product will be compromised or fully abolished. The customer has to fully inform himself about the software of third-party suppliers with which the products of GI Geolabs, which the customer has licensed, cooperate. If the customer updates the software of a third-party supplier (patch, service-pack, update or upgrade) and the new software version of the third-party supplier leads to a comprised or abolished functionality of a GI Geolabs product, the customer only has the right to receive a retrieving update or upgrade from GI Geolabs if he concluded an (at that moment active) SLA with GI Geolabs. If this is not the case, the customer can reenter the SLA by subsequent payment since the end of his SLA but only until 1,5 years retrospective. The computer software might not be compatible with operating systems and file formats which are not mentioned in the product life cycle resp. in the product documentation or which support period already expired. The product life cycle, system requirements and the extent of the supported formats is therefore a substantial part of the particular contract and published on www.gi-geolabs.de resp. www.gis-connector.de.
9. Provisions for the use of the Computer Programme and Services:
  1. In using the Computer Programme, the Customer shall at all times comply with these Terms as well as the terms of use under the EULA and/or SLA applicable at the time of conclusion of the agreement. In particular, the Software must not be reproduced, passed on or decompiled (i.e. recompilation into the source code), unless expressly permitted by the EULA or permitted according to Sec. 69 c no. 3, 69 d para. 2 and 3 and 69 e of the German Copyright Act (Urhebergesetz, “UrhG”). If the Customer wishes to reverse engineer, decompile or disassemble the Software (hereinafter referred to as “De-compilation”) for the purpose of achieving interoperability with other computer programs according to Sec. 69 e UrhG, the Customer shall contact GI Geolabs before De-compilation of the Software and request the provision of the respective information necessary for the achievement of such interoperability. If GI Geolabs supplies such information without undue delay, the Customer shall not be entitled to the De-compilation of the Computer Programme.
  2. A Computer Programme for which no special Licences for Multiple Use are available according to the relevant product information is restricted to the use on one (1) Computer by Customer. For this purpose, the Customer may use any Computer available that meets the system requirements and for which the Licence was granted. Should the Customer change the Computer, the Software must be deleted from the Computer on which the Software was previously installed before the reinstallation of the Software on the new Computer. For Software whose product information provide special Licences for Multiple Use, Multiple Use shall be permissible only if and to the extent that the Customer was granted the relevant type or number of Licences by GI Geolabs.
  3. GI Geolabs reserves all rights on any claims or actions resulting from any unauthorised use of Products and/or Services by the Customer, including but not limited to, copyright claims and compensatory damages claims. Unauthorised use by the Customer may lead to criminal prosecution under the relevant laws. The provisions of this Section 4.9.3. concerning reproduction and disclosure shall apply mutatis mutandis for the user handbooks and other documents pertaining to the Software provided by GI Geolabs. Reference is also made to the supplementary terms and conditions of use under the EULA and/or the SLA.
Trial Version
1. The term of Use of Trial Versions as well as the data sets which can be processed by Trial Versions can be limited by GI Geolabs, in ist sole discretion. Trial Versions may not be used for commercial purposes.
2. Trial Versions that are provided to a Reseller may be unlocked to full versions by GI Geolabs, in ist sole discretion. The Reseller may use unlocked versions only fo rthe purposes of advertising Products and/or Services or presenting Products and/or Services to Customers. In any of the aforementioned events the Reseller is obliged to purchase a Reseller License.
Maintenance
1. By paying the Fee for a Product the Customer acquires the right to the Service year.
2. At the end of the Service Year the Customer hast to conclude an SLA in order to receive Maintenance services.
Technical Support
1. Except for cases of urgency a Customer shall request Technical Support via e-mail to support@gi-geolabs.de or support@gis-connector.de. In cases of urgency Technical Support can be reached workdays between 9:00 am und 12:00 am as well as between 1:00 pm and 5:00 pm under +49 821 25869 – 70.
2. For Customers who have purchase a Product from a Reseller Technical Support shall be provided by such Reseller.
3. In no event Technical Support shall a Software training. Software trainings have tob e arranged with GI Geolabs or any Reseller against the payment of a training fee.
ELA
GI Geolabs may offer Customers the conclusion of an ELA. However, Customers shall not be entitled to request the conclusion of an ELA. In addition to the ELA these Terms and the EULA shall apply. In the event of conflict between the ELA and these Terms and/or the EULA these Terms and the EULA shall prevail unless the ELA expressly stipulates the abrogation of these Terms and/or the EULA.
Special Provisions for Resellers
1. If Products and/or Services are provided to a Reseller, the Reseller may pass the Licence on to a third party. In the event of a resale, the serial numbers issued by GI Geolabs (e.g. Licence numbers) shall be stated in the invoice.
2. The Reseller shall not grant to its Customers any rights in the Products and/or Services other or further than those permitted pursuant to these Terms, the EULA and the SLA.
3. The Reseller shall not reproduce the Products and/or Services in whole or in part, including for purposes of data back-up.
4. For each culpable breach of the foregoing provisions of this Section 9. and without recourse to denial of continuation of offence (“Fortsetzungszusammenhang/rechtliche Einheit”) the Reseller shall pay to GI Geolabs liquidated damages in the amount of EUR 15,000. Additional claims by GI Geolabs resulting from the breach of these provisions remain unaffected. The liquidated damages will be set off against the damage claims of GI Geolabs resulting from the respective breach.
Delivery
1. GI Geolabs’s delivery obligation shall be governed only by (i) GI Geolabs’s order confirmation, (ii) these Terms, (iii) the EULA and/or the SLA (as applicable) unless agreed otherwise between the parties in writing. GI Geolabs may render partial deliveries where a partial delivery is reasonable for the Customer and does not significantly impair the Customer’s interests.
2. Deviations of the delivered Products and/or Services from the documentation shall be permitted provided they are reasonable and acceptable for the Customer and the material performance of the Product or Service required under the relevant agreement is met in full. GI Geolabs reserves the right to make technical changes to the Products and/or Services which enhance their operability and performance or which are necessary for the operability of the Products and/or Services.
3. Should the ordered Products and/or Services be replaced by new Products and/or Services in GI Geolabs’s product range, and such new Products and/or Services render the qualities required under the relevant agreement just as well or better, GI Geolabs has the right to deliver such new Products and/or Services instead of the ordered Products and/or Services insofar as such substitution is not unreasonable for the Customer.
4. Should Products and/or Services of GI Geolabs be shipped at the Customer’s request, the risk for damage and loss shall pass to the Customer upon release for shipment by GI Geolabs. In the event of downloading of the Software, such risk shall pass to the Customer as soon as it has received the required Software Key.
5. Should the performance be delayed beyond the date confirmed by GI Geolabs, rights for late performance may only be asserted following the expiry of a reasonable grace period of no less than three weeks set by the Customer, unless the Customer proves that interest of the Customer has lapsed entirely due to the delay. Should GI Geolabs be in default with its delivery or should delivery become impossible for GI Geolabs, GI Geolabs shall only be liable subject to clause 13. and 14. below. If timely delivery is prevented by circumstances that are not just temporary and that do not fall within GI Geolabs’s scope of influence (in particular, in the event of strike, lock-out, unavailability of materials, force majeure, transport hindrances, plant closures or unavailability of internet connection), GI Geolabs or the Customer may rescind the agreement if they cannot be reasonable expected to be bound by the agreement any longer, without giving rise to any obligation to render compensatory damages to the other party.
Remuneration and Payment Terms
1. Unless expressly agreed otherwise, GI Geolabs’s Fees are net free place of shipment, and all shipping costs, in particular, packaging, transport costs and transport insurance as well as the applicable statutory value added tax – if any – shall be paid by the Customer.
2. Payments shall be due immediately without any deductions. Bills of exchange and cheques shall be accepted only subject to special agreement and only subject to the condition that these do not give rise to any additional costs and fees for GI Geolabs.
3. Should the Customer be in default with its payment, GI Geolabs may demand agreed or statutory default interest without notice.
4. During default in payment by the Customer, GI Geolabs may withhold its deliveries to the Customer which are based on the same legal relationship, including Updates and Upgrades. Reference is hereby made to the consequences of a failure to install Updates/Upgrades, in particular, impairment of the protective function of the Software (in this respect, see also Section 12.1. herein).
5. The Customer may only set off claims of GI Geolabs if the Customer’s respective counterclaims are uncontested or confirmed in a final and binding judgment. The Customer has a right of retention only insofar as its counterclaims are based on the same legal relationship.
Customer’s Duties
1. Due and proper use of the Software requires receipt of a Software Key from GI Geolabs or one of its authorised Resellers and installation of all Updates/Upgrades for the respective Software by Customer. If the Customer has not installed the current Updates/Upgrades of GI Geolabs, the Software’s protection against computer viruses and other Malware may be materially impaired. Installation of the Software and its Updates/Upgrades as well as regular downloading of the full and current Updates/Upgrades shall be the Customer‘s sole responsibility.
2. The Customer shall familiarize itself with the key functions of the Software or Service. The Customer shall bear the risk as to whether the Software or Service meets the individual requirements and needs of the Customer. The setup of a functional hardware and software environment for the Software or Service subject to the relevant agreement shall be the sole responsibility of the Customer. The same shall apply to regular data backup within the Customer’s EDP system.
3. The Customer shall comply with GI Geolabs’s advice concerning installation of the Software, updating thereof by way of Updates/Upgrades and its operation.The Customer shall regularly consult GI Geolabs’s website (www.GI-Geolabs.de or www.gis-connector.de) as to GI Geolabs’s current advice and shall take this into account while operating the Computer Programme.
4. The Customer shall install the Computer Programme at its own responsibility and cost. This shall also apply if certain Updates/Upgrades and releases require a new installation of the Computer Programme during the agreed Licence Term. This shall also apply in the event that a new installation of Computer Programmes by GI Geolabs is required due to the fact that Software of third parties with which GI Geolab’s Products interact is updated or newly installed.
5. The Customer shall notify to GI Geolabs any defects of the Products and/or Services provided according to the statutory notification obligations.
6. The Customer shall notify GI Geolabs without undue delay of any changes to its email address in order for GI Geolabs to be able to send the Customer security-relevant information for the use of the Software or Services. GI Geolabs shall not be liable for any damages resulting from Customer’s failure of such notification.
Warranty and Limitations
1. Unless expressly agreed otherwise, the Products provided by GI Geolabs as well as GI Geolabs’s Services shall be in line with the current-state-of-the-art technology and shall conform to all relevant product information and specifications provided by GI Geolabs, including those in the user handbooks. GI Geolabs does not warrant that the Products and Services under the agreement will be fit for purposes beyond the fulfilment of GI Geolabs’s obligations under the agreement.
2. The Customer acknowledges that based on the current-state-of-the-art technology programme errors cannot be excluded with complete certainty despite of exercising greatest conscientious care and diligence.
3. The Products shall not be used in special risk areas that require error-free, permanent operation of relevant systems and in which the failure of the Products may result in a direct risk for life, body or health or in substantial damages to property or the environment (high risk activities and high availability activities, including but not limited to the operation of nuclear facilities, weapon systems, aviation navigation or communication systems, life support systems and equipment, machine and production processes of pharmaceuticals and food production). GI Geolabs does not warrant or guarantee that the Products are fit for the use in special risk areas.
4. If the Customer is a Consumer and GI Geolabs has provided the Customer with the Product against payment and in perpetuity, the statutory warranty claims apply in case of any defects in the provided Products; except for any damage claims of the Customer or claims for expenses incurred in vain (“Ersatz vergeblicher Aufwendungen”), that arise from such defects which shall be governed exclusively by Section 14. herein.
5. If the Customer is an Entrepreneur and GI Geolabs has provided the Customer with the Product against payment and in perpetuity, defects in the provided Products, shall be rectified by GI Geolabs, as follows, provided the Customer has notified GI Geolabs of the respective defect in accordance with Section 377 German Commercial Code (Handelsgesetzbuch, “HGB”):
  1. Notified defects shall be rectified, in GI Geolabs’s sole discretion, through either elimination of the defect (hereinafter referred to as “Repair”) or provision of a defect -free Software (hereinafter referred to as “Substitute Delivery”). Costs for such rectification shall be borne by GI Geolabs.
  2. If the defects in the Software cannot be rectified within a reasonable period or if repair and substitute delivery can be deemed to have failed for other reasons, then the Customer may, at its sole discretion, reduce the Fee or – if the defects are not immaterial – rescind the agreement.
  3. Any damage claims of the Customer or claims for expenses incurred in vain (“Ersatz vergeblicher Aufwendungen”) that arise from such defects shall be governed exclusively by Section 14. herein.
6. If GI Geolabs has provided the Customer with the Product against payment but for a limited period of time, defects in the Product, shall be rectified by GI Geolabs within a reasonable period after notification of the defect. The rectification of defects shall be effected, at GI Geolabs’s choice, by way of repair or substitute delivery free of charge. The Customer’s right to reduce the Fee for the time the defect persists remains unaffected. The Customer is only entitled to an extraordinary termination of the agreement due to the failure to grant use in accordance with the agreement if GI Geolabs has been given sufficient opportunity to rectify the defect and such attempt has failed.
7. It shall be assumed that the repair or substitute delivery has failed only if GI Geolabs has been given sufficient opportunity to effect a repair or substitute delivery without achieving the desired result or if the repair or substitute delivery was unjustifiably refused by GI Geolabs. If rectification of a defect in the form of repair or subsequent delivery is only possible for GI Geolabs at unreasonable expenses, GI Geolabs may refuse to rectify the defect and refer the Customer to its right to rescind or terminate the agreement.
8. No warranty shall be provided for GI Gelabs Trial Version or any other Products and/or Services granted by GI Geolabs free of charge, except for the operability of the Computer Program. Any liability for damages or expenses incurred in vain (“Ersatz vergeblicher Aufwendungen”) on the part of GI Geolabs shall be subject to Section 14. herein. The same shall apply for GI Geolabs Shareware, as long as there is no agreement with the Customer for the unconditional provision of a Software Key or Login against payment.
9. In no event shall the Customer be entitled to demand the source code for the Computer Programme in regard to any defects.
10. The Customer shall notify GI Geolabs without undue delay if a third party asserts claims against the Customer based on infringement of intellectual property rights by the Product and/or Managed Services (“Rechtsmangel”). Should there be any information of such, whether in written documents or correspondence or in other forms, the Customer shall provide these to GI Geolabs without undue delay. In case of legitimate claims by third parties GI Geolabs will indemnify the Customer of the costs that originate from the assertion of such third party’s claims (including reasonable attorney fees, limited to the statutory remuneration of attorneys if applicable). Furthermore, GI Geolabs’s liability for loss of profits due to such defects is limited to three times of the Fee amount, except where the defects were caused by willful misconduct or gross negligent behaviour of GI Geolabs.
11. If the Customer is an Entrepreneur and the product of GI Geolabs has been provided in perpetuity, the Customer’s warranty claims for defects of the product lapse after one year from the statutory commencement of the limitation period, except in cases of intentional behaviour of GI Geolabs. The statutory limitation pursuant to Sec. 479 of the German Civil Code (BGB) remains unaffected hereby.
Liability for Damages
Notwithstanding the legal nature of the relevant claim, the following shall apply to the Customer’s damage claims and claims for expenses incurred in vain (“Ersatz vergeblicher Aufwendungen”):
1. GI Geolabs shall be liable for any of the Customer’s damages resulting from gross negligent or willful misconduct of GI Geolabs, which are due to culpable injury to life, body and health, which arise due to the assumption of a guarantee or according to the Product Liability Act. In all other cases GI Geolabs’s liability for damages is limited to the infringement of material obligations of the agreement. Material obligations are only such obligations the fulfilment of which allow the proper execution of the agreement in the first place and where the Customer may rely on the compliance with these obligations.
2. Under no circumstances shall GI Geolabs be liable for the loss of data resulting from the use of Products unless such Product has a defect. Prior to using a Product the Customer shall inform itself by reading the EULA and the Documentation and, as the case may be attending a Software training. The Customer shall be responsible for making updates of its data prior to using Software of GI Geolabs so that so that he can restore data in the event of data loss.
3. GI Geolabs’s liability in case of negligent infringement of material obligations of the agreement by GI Geolabs shall be limited to foreseeable damages which are typical for this type of contract.
4. If the Products or Services are provided by GI Geolabs for a limited period of time, the strict liability of GI Geolabs for defects existing at the time of conclusion of the agreement pursuant to Section 536 a para. 1, alternative 1 German Civil Code (BGB) is hereby expressly excluded.
5. The aforestated limitations of liability also apply in regard to all GI Geolabs’s representatives, including but not limited to its directors, legal representatives, employees and other vicarious agents.
Retention of Title, Transfer by way of Security
Should a Product of GI Geolabs be provided to the Customer against payment and in perpetuity, the following shall apply:
1. GI Geolabs shall retain title in delivered Products and goods as parts of Services until full payment. The provisions of these Terms pursuant to which the Customer acquires no title shall remain unaffected.
2. Should the Customer sell the Products and Services provided by GI Geolabs before the Customer has itself paid the respective Fee to GI Geolabs, the Customer and GI Geolabs undertakes to assign to GI Geolabs all receivables from the resale, upon GI Geolabs request. Should the Products and Services be provided together with other items, the assignment of the receivables shall be limited to the value of GI Geolabs’s Products and Services. GI Geolabs may disclose the assignment or demand that the Customer notifies the debtor of such assignment.
3. The Customer’s right to continue to use the Products and Services shall lapse upon assertion of the retention of title by GI Geolabs. Any and all backup copies made by the Customer for its own use must be returned to GI Geolabs or deleted by the Customer.
Miscellaneous
1. Should any provision of these Terms be or become invalid, ineffective or unenforceable, the remaining provisions of these Terms shall remain valid and enforceable.
2. If the Customer is an Entrepreneur, the place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with the agreement and these Terms shall be the respective registered seat of GI Geolabs. GI Geolabs reserves the right to sue the Customer at its domicile.
3. These Terms and all disputes arising out of or in connection with it shall be governed exclusively by the laws of the Federal Republic of Germany under exclusion – to the extent legally effective – of the provisions of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG).
4. Any necessary official permits for transports, purchase and use of the Products and Services in the destination country shall be obtained by the Customer at its own responsibility and costs.