The general terms and conditions of yWorks GmbH ("yWorks") are integral and substantial parts of any contract between yWorks and its customer ("CR"). The terms and conditions hereinafter take precedence over CR's general terms of business (if any), as far as there are differences in stipulations.
The general terms, attachments and any related transaction documents (such as the license terms or an invoice), are the complete agreement, and replace any prior oral or written communication between CR and yWorks. Oral additional agreements between CR and yWorks require for legal effectiveness confirmation in writing by yWorks.
CR agrees to be bound by all terms and conditions hereinafter by using or paying for any of yWorks products or services.
In case of any inconsistency between the German Allgemeine Geschäftsbedingungen and the general business terms and conditions herein the German Allgemeine Geschäftsbedingungen shall have priority.
The conceptual formulation and description of task, documentation and target state shall be arranged in an additional written notice between yWorks and CR. Any modifications, supplementations or extensions of the well-defined task need to be put down in writing.
CR is obliged to support yWorks' efforts where it is necessarily required to fulfill its obligations. Particularly CR provides yWorks with access to any platform if yWorks determines that this is necessary for realization of its obligations.
CR provides a contact person that is at yWorks disposal and has authority and power of decision.
CR shall render yWorks every necessary assistance for the performance of the order. Particularly CR shall transfer to yWorks all documents, data, data media and information required. The transfer shall take place immediately on yWorks' demand or according to the agreed time schedule.
CR accounts for the correctness and sufficiency of all transferred materials, and for the compliance of all transferred materials with legal, fiscal and organizational requirements and obligations.
yWorks ensures that the software works according to the specifications. If it does not concern insignificant defects, yWorks shall remedy for defects of the software, to which also the lack of expressly assured or guaranteed properties belongs in accordance with the following paragraphs. Any further warranty based on defects of the delivered software is excluded.
If the software indicates an apparent defect within 12 months after delivery, yWorks shall at its own option either remedy the defect or provide an invoice-related credit memo.
Notices of defects within the aforesaid scope are accepted only if they are made within two weeks after receipt of the product, in case of first not recognizable defects immediately after getting aware of the defect. Notices shall be in writing and shall contain all data specified in No. 4.
CR provides yWorks with all data necessary to reproduce the problem as well as with a complete bug report. A bug report shall contain a short and complete program which shows the problem. yWorks rejects to enter into the investigation before all necessary data and documents have been provided. Incorrect programs modified by the customer are not examined by yWorks.
yWorks provides CR with all bug fix releases and patches free of charge.
CR may withdraw from the contract, if the entire work becomes definitely impossible. As far as part deliveries are possible and for CR applicable the right of withdrawal is limited to the sections not yet accomplished. For already furnished part deliveries and services a claim for reimbursement exists to this specific extent. If yWorks chooses to remedy the deficiencies CR may withdraw from the contract only if the remedy failed twice. The liability of yWorks is omitted if CR made inappropriate modifications or extensions at programs or program sections.
Deviations thereof apply only for direct damages deliberately or grossly negligent caused by yWorks, its employees or its subcontractors, limited to the equivalent value of the service provided, but up to a maximum amount of EURO 25,000.00 in the aggregate. Any further liability is excluded.
Any liability for damages due to force majeure is likewise excluded.
The liability of yWorks exclusively pursues the paragraphs above. Any further claims not explicitly granted therein are excluded. Deviations thereof solely apply if after the applicable mandatory law the liability may not be excluded or limited.
CR takes note of the fact that yWorks´ software is neither developed nor intended for high risk activities such as in the operation of nuclear facilities, aircraft navigation, traffic control, direct life support machines, or weapon systems, in which the failure of the software could lead directly to death, personal injury, or severe physical or environmental damage. Any liability therefore is excluded.
Third party claims for damages against CR cannot be forwarded against yWorks.
The party who owns the confidential information will be referred to as "OCI", and the party to whom the confidential information will be disclosed will be referred to as "DCI".
The term "confidential information" means any information or material which is proprietary to OCI, whether or not developed by OCI, which is not generally known other than by OCI, and which DCI may obtain through any direct or indirect contact with OCI.
Confidential information includes without limitation:
DCI understands and acknowledges that the confidential information has been developed or obtained by OCI by the investment of significant time, effort and expense, and that the confidential information is a valuable, special and unique asset of OCI which provides OCI with a significant competitive advantage, and needs to be protected from improper disclosure. In consideration for the disclosure of the confidential information, DCI agrees to hold in confidence for a period of five (5) years and to not disclose the confidential information to any third person or entity without the prior written consent of OCI. No obligation of confidence shall extend to information that (1) is publicly available; (2) is independently developed by the DCI; (3) is already in the DCI's possession; or (4) is rightfully received from a third party.
DCI will not copy or modify any confidential information without the prior written consent of OCI. Except as provided in this agreement DCI may not transfer, rent, lease, lend, copy, modify, translate, sublicense, time-share or electronically transmit or receive confidential information, especially not the software, media or documentation.
DCI shall not disclose any confidential information to any employees or subcontractors of DCI, except those employees and subcontractors who are required to have the confidential information in order to perform their job duties in connection with the limited purposes of this agreement.
Neither party has an obligation under this agreement to purchase any service or item from the other party, or commercially offer any products using or incorporating the confidential information. This agreement does not create any agency, partnership, or joint venture.
DCI shall not acquire any intellectual property rights except the limited rights granted herein and in the related transaction documents. DCI acknowledges that, as between OCI and DCI, the confidential information and all related copyrights and other intellectual property rights, are (and at all times will be) the property of OCI, even if suggestions, comments, and/or ideas made by DCI are incorporated into the confidential information or related materials.
CR is obliged not to affect the independency of yWorks employees. This means in particular that CR will not submit any offer to members of yWorks, neither offers of employment nor offers to undertake the tasks for one's own account.
yWorks shall not be liable for failure to fulfill its obligations herein or for delays in delivery due to causes beyond its reasonable control, including, but not limited to, acts of God, natural disasters, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, riots, war, acts of terrorism, delays in transportation or inability to obtain labor or materials through its regular sources. yWorks' time for performance of any such obligation shall be extended for the time period of such delay or yWorks may, at its discretion, cancel any order or remaining part thereof without liability by giving notice of such cancellation to CR.
Invoices shall be made out in accordance with then-current prices which are online accessible. yWorks may change charges at any time. Such changes are not retroactive.
Invoices are due upon receipt of invoice and without deduction. Amounts are payable as specified on the invoice or the transaction document. CR agrees to pay accordingly, including any late payment fee.
Any costs incurred because of delayed payment like court and lawyers' fees or administration costs are charged to CR's account.
Duties and shipment costs are on CR's account.
Any maintenance exceeding the warranty as described in A V. has to be arranged in a special support agreement pursuant to the terms of part B III.
CR may take out a subscription together with a license.
A subscription includes the following services:
CR is not entitled to purchase subscription at a later date than purchase
date of the corresponding license.
A subscription package contains the desired license and the subscription
services.
Effective date of subscription is invoice date of the corresponding
license.
The subscription shall run for a period of twelve (12) month from effective
date of it on, provided that there is no renewal of the subscription
agreement.
CR can but is not obliged to renew the subscription agreement after termination.
The price for one year subscription directs to then-current subscription prices which are online accessible.
yWorks will support the latest version of the software which is licensed
by CR up to the termination of the subscription agreement.
Older versions of the software will be supported at the latest until
one month after the delivery of a newer version to CR.
CR is fully responsible for contact with its customers who are using programs developed using the software.
yWorks provides a contact person that has to be fixed in writing and can be changed upon written notice.
yWorks maintains an email address and a fax number for CR to contact yWorks and to send messages to report problems and receive assistance.
yWorks maintains qualified personnel to provide timely and knowledgeable support service.
yWorks provides CR with technical support for the software.
yWorks provides communications and assistance to CR in the event yWorks determines a problem related to the software.
yWorks provides instructions for implementation except for instructions that are based on creative intellectual processes.
yWorks provides CR with bug fixes or workarounds in case of software bugs.
yWorks provides CR with the upgrade version in case of software upgrades.
yWorks agrees to accept special development orders related to the supported
software for an appropriate fee.
CR can but is not obliged to place such development orders with yWorks.
yWorks is entitled to call in subcontractors to fulfill its obligations.
CR provides a contact person that has to be fixed in writing and can be changed by written notice.
CR maintains qualified personnel that are skilled to use the software.
In case of bugs CR provides yWorks with a bug report. Any bug report has to be provided with a short but complete program that shows the problem. CR provides yWorks with relevant data to reproduce the problem and with a complete problem description. yWorks will not start investigation before the required materials are available.
CR provides yWorks with access to any platform and program if yWorks determines that this is necessary for realization of its support obligations.
CR is obliged to support yWorks whenever yWorks depends on such help to fulfill its obligations.
yWorks may revise these terms and conditions at any time and reserves the right to change any of the terms and conditions contained in this agreement at any time and to its sole discretion. Notice of all changes will be provided by incorporation of the changes into the agreement at http://www.yworks.com/en/company_legal_businesstermsandconditions.htm.
CR agrees that it is its responsibility to check the web site for the purpose of determining if there is a change to the agreement. yWorks may also provide other written notice to CR of any such change. Changes are not retroactive.
This agreement is made and shall be construed in accordance with the laws of Germany. If for any reason a court of competent jurisdiction finds any provision of this agreement, or portion thereof, to be unenforceable, that provision of the agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this agreement will continue in full force and effect.
yWorks is entitled to name CR as reference customer.
All modifications or extensions of this agreement need to be put down in writing and have to be expressis verbis so stated. CR shall not be entitled to assign any rights under this agreement to any third party without yWorks' prior written consent.
Legal domicile is Tübingen, Germany. yWorks also reserves the right to start legal action at the court of jurisdiction at CR's legal business domicile or place of residence.