Dyntell Software - General Terms and Conditions
Valid from December 1, 2016
1. Selection of DYNTELL products
The End User and DYNTELL (hereinafter referred to as the Licensor) agree that the End User is familiar with the essential functions and operating characteristics of the standard DYNTELL system (hereinafter referred to as the software) specified in the Software User Agreement. The End User bears the risk of whether the software meets their expectations and needs not specified in the Software User Agreement. In case of any questions deemed doubtful by the End User, it is advisable to seek advice and information in writing from the Licensor or an expert third party before concluding the agreement.
2. Subject of Delivery
The Licensor shall deliver the software (executable machine program, user documentation in electronic form) in its standard version, in accordance with the relevant provisions of the General Terms and Conditions of DYNTELL Software.
Unless otherwise agreed, the software shall be delivered in the latest stable version available at the time of delivery. The Licensor shall communicate the technical possibilities and conditions for using the software (e.g., relating to the database, operating system, hardware, and data carrier) at the written request of the End User.
3. Copyright
In the legal relationship with the End User, the copyright and other intellectual property rights related to the software and all other intellectual creations delivered during the performance of the contract (including warranty obligations and the provision of software tracking and customer support services) (e.g., project implementation methodology, know-how, documentation) shall belong exclusively to the Licensor or, in the case of non-DYNTELL software, to its supplier, even if these intellectual creations were created in part on the basis of and in cooperation with the End User’s specifications. The End User shall have the non-exclusive rights of use specified in Section 4 to these intellectual creations.
The rights of use acquired by the End User do not extend to the use, copying, or transfer of the software in a manner other than that specified in the contract, or to the development of similar software using the DYNTELL software as a model.
The Licensor is entitled to monitor the manner and extent of software use by the End User.
4. End User Rights
The End User may only use the software specified in the Software User Agreement within the scope of use specified in the Software User Agreement, even if the End User has technical means by which it could technically access other components or modules of the software.
The End User may create a maximum of two additional installations of the software for continuous testing and internal training purposes (hereinafter: test installations). An installation is defined as the totality of all components that directly or indirectly access a user database set or interact with that database set. A user database set is defined by the fact that each database table appears at most once in it.
The End User may only configure the software to map its own internal business processes. This provision also applies to test installations. Unless otherwise agreed, operation in a computer center is not permitted. Operation in a computer center is deemed to exist if the End User allows third parties to use the software, regardless of the technical solution, or uses the software for the benefit of third parties.
All data processing equipment (e.g., hard disk drive and central processing unit/CPU) on which the software has been copied in whole or in part, temporarily or permanently, must be located on the End User’s premises and must be directly owned or possessed by the End User.
The End User is entitled and obliged to perform data backup in accordance with the rules of technology and to make the necessary backup copies of the software for this purpose. Backup copies stored on portable data carriers must be marked as such and must bear the copyright notices of the original data carrier. The user documentation may be copied onto paper for internal use. The End User may not alter or remove DYNTELL’s copyright notices.
The End User may only modify, alter, or expand the software within the framework of the provisions of Section 60(1) of Act LXXVI of 1999 (Copyright Act). The Licensor draws attention to the fact that even minor modifications may cause serious, unforeseeable disruptions in the operation of the software and other programs. The Licensor therefore expressly warns the End User not to modify the software on their own authority; the End User bears the sole risk arising from this.
The End User’s rights of use shall become effective upon receipt of the software by the End User. For software that the End User does not receive based on their first order, but rather within the scope of repair or product support, for example, the rights take effect immediately upon the End User copying the software to a hard disk drive or running it on a central unit. Section 14 applies to the return of the software.
Any use of the software that exceeds the rights specified in these General Terms and Conditions or in the Licensor’s DYNTELL Software General Terms and Conditions requires the Licensor’s written consent. If the End User exceeds their rights of use without this consent and does not remedy this by the deadline set in the Licensor’s written notice, the Licensor may immediately revoke the End User’s rights of use by written notice. In addition, and regardless of the withdrawal of the rights of use, the Licensor shall invoice the End User for a lump sum compensation equal to twice the license fee specified in the current DYNTELL Software General Terms and Conditions, corresponding to the extent of the excess use (averaged amount); The Licensor reserves the right to claim further damages.
The End User shall notify the Licensor in writing of any changes affecting the user rights or the consideration payable for use and shall obtain the Licensor’s written consent.
The End User shall acquire a non-exclusive, unlimited right to use the software.
The separate contractual terms and conditions of other manufacturers’ software apply to such software. The Licensor only transfers or grants rights to such software that are necessary for the use of such software in conjunction with the DYNTELL software. These rights do not include the right to modify or extend the software.
The End User may only make modifications and extensions to the software that are permitted by the DYNTELL Software General Terms and Conditions. The rights associated with the results thus created are governed by the provisions of the DYNTELL Software General Terms and Conditions.
Further provisions regarding the use of the software are contained in the DYNTELL Software General Terms and Conditions of Use.
5. Transfer of Rights
The Licensor shall be entitled to engage third parties and affiliated companies to perform its obligations under the Agreement.
The End User may not transfer its rights under the Agreement, waive any claims arising therefrom, or grant a sublicense for the software without the express prior written consent of the Licensor.
The End User may only transfer the right to use the software to a third party by way of assignment (i.e. not by way of rental or leasing) and only upon termination of its own use. The transfer is subject to the written consent of the Licensor, which the Licensor may not refuse without good cause. When requesting consent, the End User shall submit a duly signed statement from the recipient of the software, in which the recipient undertakes to comply with the terms of use and transfer provisions of the applicable DYNTELL agreements. The recipient shall only be entitled to exercise the contractual rights of use if
- if the Licensor has changed the company name in the software for the transferee and the transferee has paid the Licensor for this (the cost of changing the company name is 1. if the transferee is the legal successor of the End User: 1 hour’s consulting fee; if the transferee is not the legal successor of the End User: 22% of the software license fee, provided that the fee specified as the transfer price does not exceed the amount of the original software license fee, otherwise a fee corresponding to 22% of the transfer price shall be paid to DYNTELL);
- if the End User has assured the Licensor in writing that it has transferred all copies of the original software to the recipient and deleted all copies created by itself. The provisions of Section 14 shall apply accordingly.
6. End-user Cooperation
The End User is responsible for creating the software’s working environment, in particular for purchasing hardware, operating systems, network components, etc., and for sizing the hardware capacity. The Licensor shall provide information to the End User on these matters based on the End User’s written request.
The End User shall support the Licensor free of charge to the extent necessary for the performance of the contract, e.g. by providing staff, premises, hardware and software, data and telecommunications equipment, network access, and by cooperating in specifications, tests, handover procedures, etc. The End User shall provide the Licensor or the Licensor’s subcontractor with access to the hardware and software, either directly or via remote data transmission devices. In this regard, the Licensor shall also respect the End User’s legitimate interests, in particular data protection. If access to the software is not possible or not permitted via telecommunications equipment, the End User shall bear the costs of establishing the technical connection and any proven additional costs incurred by the Licensor in this regard.
The End User shall designate a contact person (customer-side project manager) who, in addition to managing the project, shall act as the contact person for the Licensor and shall make the necessary decisions or implement them without delay in matters arising in connection with the performance of the contract. The contact person and the Licensor’s customer support staff shall cooperate closely in matters relating to the contract.
Before commencing the operational use of the software or software version, the End User shall thoroughly test all programs for completeness and applicability in the specific environment. This also applies to programs that the End User receives within the scope of warranty and product support.
The End User shall take appropriate precautions in the event that the software does not function properly, either in part or in whole, e.g., by backing up data, diagnosing malfunctions, regularly checking results, and performing other reasonably expected tasks.
The End User agrees that the Licensor may add the End User to the customer list of DYNTELL and the Licensor, list the End User as a reference customer, and refer to the End User as such in press releases and other public announcements.
7. Shipping, Delivery and Fulfillment Time
The software shall be delivered to the End User in the form of a machine-readable program and user documentation on a data carrier, or by loading it onto a computer, or by remote data transmission.
The Licensor shall deliver the standard software in the current, latest stable version within one month of the conclusion of the contract and payment of the software license fee. A shorter delivery period requires the express written consent of the Licensor. The Licensor shall not be liable for any disruptions caused by strikes, government intervention, fire, force majeure, or other external circumstances for which it cannot be held liable under the Civil Code (Ptk.).
If the Licensor is awaiting the cooperation or information of the End User, or is prevented from fulfilling the order for reasons beyond its control, the delivery and performance deadlines shall be extended by the duration of the hindrance and the appropriate processing time following the cessation of the hindrance. The Licensor shall send written notification of the impediment to the End User.
Any delay on the part of the Licensor shall commence upon receipt of a written notice from the End User to that effect. The End User’s notices and deadlines shall also be valid only if recorded in writing. The additional deadline thus determined shall be at least 15 working days.
8. Price, Payment, Legal Disclaimer
The software license fee includes shipping and packaging costs. The price specified at the time of conclusion of the contract shall be considered the valid price, and any price changes occurring prior to delivery shall be disregarded. All prices are subject to value added tax as determined by the applicable legal provisions.
The Licensor shall issue an invoice for each delivery or performance. Payments are due within 8 days of the invoice date. If the delay in payment exceeds 30 days, the Licensor may charge default interest in accordance with the Civil Code from the first day of the delay and shall be entitled to suspend the operation of the software and the services.
The End User may only offset undisputed or legally established claims against its debt. The End User may not assign its claims to third parties.
The Licensor reserves all rights relating to the subject matter of the contract (e.g., data carriers and user documentation) until all claims arising from the contract have been settled in full. The End User must immediately notify the Licensor in writing in the event of access by a third party to the subject matter of the reservation of rights and must inform the third party of the Licensor’s rights.
9. Obligation to Check and Object
The End User shall immediately check all deliveries and services provided by the Licensor upon receipt and shall immediately notify the Licensor of any errors or complaints detected, in accordance with the provisions of the Civil Code.
The End User shall communicate its complaints in writing, providing a detailed description of the problem. Only the contact person and the management are authorized to report such complaints.
10. Warranty
The Licensor warrants that the performance and services covered by the Software User Agreement comply with the user documentation. The Licensor is not responsible for any features of the software that are not specified in the user documentation or for the results achieved through the use of the software. Descriptions contained in test programs, product and project descriptions, for example, shall not be considered as a commitment regarding features and results. Any commitment regarding the features of the software and the results achievable through the use of the software requires the express written confirmation of the Licensor.
The Licensor shall support the End User in troubleshooting errors and identifying their causes within the scope of software monitoring. If it can be proven that the Licensor is not responsible for the error, the End User shall bear the costs incurred by the Licensor; the provisions of Section 16 shall apply in this regard.
The End User shall document any errors that occur immediately in a traceable form, providing information to remedy the error, filling out the reporting form specified by the Licensor or providing the reporting data, and sending it to the email address provided by the Licensor. Errors not documented in this manner are not covered by the Licensor’s warranty obligation.
The Licensor may primarily fulfill its warranty obligation by repairing the defect. Repair shall be effected by remedying the defect, delivering a new software version, or providing instructions to the End User on how to avoid the effects of the defect. The End User shall support the Licensor in accordance with Section 6.
The End User may only withdraw from the contract or demand a reduction in the fee if the defect preventing the proper use of the software – marked as the highest priority (PRIO1) in the Licensor’s case management system – (multiple, if applicable) that prevents the proper use of the software, despite a subsequent deadline of at least 30 calendar days specified in writing by the End User. The Licensor shall not reimburse any costs incurred by the End User or a third party (additional performance) in order to remedy the error.
The Licensor provides a warranty from the date of delivery/installation of the subject matter of the contract until the warranty period specified in the Software User Agreement.
11. Responsibility
The Licensor does not guarantee that the transferred software will be fully compatible with all „hardware and software configurations.” In accordance with standard business practice in the field of information technology, the Licensor shall not be liable for any data stored on the system or for any loss of such data, nor for any direct or indirect damage attributable to the use or inability to use the system. This is because it is impossible to completely isolate the transferred software from the complex environment surrounding it, the operating system and other software environment elements, possible errors in the computer or other related hardware, or the consequences of power outages or unnoticed power fluctuations. The End User is responsible and obligated to thoroughly check all documents and forms printed by the system at all times. The End User acknowledges this limitation of liability.
12. Third Party Rights
The Licensor warrants that the transfer of the software usage rights pursuant to Section 5 shall not be impeded or restricted by any third party rights. Otherwise, the End User may withdraw from the contract after the expiry of a written deadline containing a reasoned notice of termination, unless the Licensor obtains the legal right to use the software under the contract. Clause 11 shall apply to the End User’s claims for damages.
The Licensor shall, at its own expense, defend against any claims made by third parties based on the Licensor’s deliveries and services for infringement of property rights, provided that such claims do not arise from the End User’s conduct. The End User shall not recognize any such claims on its own behalf. The End User authorizes the Licensor to settle any disputes with third parties independently, either in or out of court. The End User shall notify the Licensor in writing and in detail of any claims made by third parties without delay.
13. Confidentiality
The Licensor shall ensure that the tasks and documents processed by its staff, as well as all information, business processes and documents that come to its knowledge in the course of its activities with the End User, are not disclosed to third parties. An exception to this is if the information in question has already become known to third parties by other means. The Licensor shall take into account the data protection rights under the provisions of the Data Protection Act. The Licensor may process the End User’s data by machine.
The End User shall treat as confidential all information that has come to its knowledge in the course of the performance of this Agreement, including the Agreement itself and its annexes, and which goes beyond the external appearance of the system or parts thereof and the list of functions. This applies in particular to the methods and procedures used by the Licensor, know-how, and the documentation of the system or parts thereof, the materials used, and other documents. The End User shall inform its employees, etc., who have access to the subject matter of the contract, of the Licensor’s copyrights and of their obligation of confidentiality towards the Licensor and DYNTELL.
The End User is obliged to carefully safeguard the subject matter of the contract in order to prevent unauthorized use.
14. Termination of Right of Use
In the event of a material breach of contract, with particular regard to points 4-6 and the provisions of point 13, the Licensor may, after the expiry of the deadline specified in its written warning, immediately withdraw the End User’s rights of use. In this case, the End User shall return all items delivered and copies thereof to the Licensor and delete all programs stored on its data processing equipment in connection with the deliveries, unless it is required by law to retain them for a longer period. The End User shall notify the Licensor in writing of the implementation thereof. The obligations arising from this, in particular those arising from points 3 and 13, shall remain in force. The End User shall not be entitled to make any claims against the Licensor as a result of the revocation of the right of use.
15. Upgrade
DYNTELL provides the End User with the opportunity to update the software in order to keep it up to date. The version update does not expand the functionality of the software purchased by the End User or the number of user licenses; the version update means replacing the current version of the software with a new modified version in light of current legislative changes, technical progress, and developments. A prerequisite is the payment of the upgrade fee (36% of the software license fee plus the value of any customizations) by the End User and the End User’s comprehensive testing of the new software version in the software test environment.
DYNTELL shall not be obliged to provide development, consulting, or other services, or to perform version updates for software versions older than two years.
16. Software Tracking
The Licensor shall provide the services described in the currently valid DYNTELL Software General Terms and Conditions as software tracking. The services shall only cover the latest software versions delivered during the term of the existing software tracking agreement. The End User is obliged to maintain all installations at all times or to terminate the tracking in its entirety for all installations.
The software maintenance fee is calculated on a monthly basis. These fees are invoiced quarterly in advance by the Licensor. Payment is due in accordance with the Software Maintenance Agreement.
The software license agreement shall commence upon conclusion of the agreement and shall be valid for a period of two years. The parties may notify the other party of their intention to extend the term of the agreement 30 days prior to the expiration of the agreement. If neither party indicates its intention to extend the contract, but the Parties continue to fulfill their obligations under the contract in the same content and form for 30 days after the expiration of the contract, the Parties shall consider the contract to be converted into an indefinite contract retroactively to the day following the expiry of the fixed term, which the Parties may terminate by giving 30 days’ written notice. The notice of termination shall be effective by registered letter and shall not require justification. The Licensor reserves the right to terminate the agreement extraordinarily, with written notice and justification, if the End User repeatedly or seriously violates the provisions of Sections 3-5 or Section 13, or if the End User fails to meet its payment obligations for more than 60 days after the due date.
The software tracking fee shall be changed as follows: The Licensor may modify the software tracking fee at the beginning of the following calendar year by written notice, in particular if the scope of the software has increased due to the purchase of additional user licenses or additional software modules and functions by the End User, with the payment of the corresponding license fees. If, in this case, the End User does not terminate the tracking agreement by the end of the calendar year within two weeks of receiving the notification, the new fee shall be deemed accepted. The Licensor shall refer to this circumstance in the notification.
If the User does not conclude a software tracking agreement by the time the software is put into live operation at the latest, or has terminated a previously concluded software tracking agreement by ordinary termination during an indefinite period, the User may conclude a new software follow-up agreement if it has paid twice the amount of the normal software follow-up fees for the period of default until the date of the new software follow-up agreement in a lump sum.
Software tracking does not cover the commissioning of the software or the correction of errors resulting from: use contrary to the contract, an application environment that differs from that described by the End User, improper handling and intervention, or other reasons not attributable to the Licensor. Software tracking also does not cover: the repair of modifications and enhancements made to the software if these were carried out by the End User without prior consultation with the Licensor, or if the End User did not perform the customer-side tests properly and completely.
All other provisions, in particular those relating to the scope of services and remuneration, are contained in the General Terms and Conditions of Use section of this document.
17. Services
Services not expressly specified in the Software User Agreement shall be subject to a separate agreement and shall be reimbursed in accordance with the currently valid DYNTELL Software General Terms and Conditions (see Appendix 1).
18. EKÁER
Dyntell.EKAER software solutions’ operating and contract performance prerequisites, which the End User must ensure for DYNTELL at its own discretion and expense:
- DYNTELL must have write/read access to the location where the server-side component of the software is to be installed (for the purpose of installing the software).
- In the case of server-client (network) applications, the folder containing the database must be shared on the server (with write/read permissions) in order to access the database.
- In the case of software applications, write/read rights are also required for the designated storage location of the import files, and the files to be imported must be movable to another folder for the software.
- The End User is responsible for adding the EKAER software as an exception in the antivirus software used by them.
- DYNTELL cannot be held liable for any malfunction of the EKAER software resulting from updates to any operating system (e.g. Windows) or other systems.
- The software may only be used within the End User’s own company and network. The installation and access of the software and the software database at the external subcontractors of the End User or at the external premises of other partner companies associated with the End User is not covered by the contract (not permitted), unless a separate written agreement has been concluded to this effect.
- Remote access and file transfer must be enabled by the End User in order to install, configure, maintain, and support the software. On-site installation and work is possible upon payment of a call-out fee and upon the End User signing and returning the call-out order.
- The End User shall ensure the availability of an internet connection and the authorization of outgoing and incoming data traffic at least to the NAV EKÁER system.
- The end user is responsible for ensuring access to the API (NAV EKÁER electronic interface).
- Any request or need on the part of the End User to change any software component or software function that is not part of the current software version under the contract or exceeds its scope and is not required by law shall be subject to a separate fee payable by the End User as a customization in the change management process, based on an invoice issued by DYNTELL.
- The End User shall be entitled to withdraw from the change requests (developments, modifications, etc.) ordered by them at any time, However, in such cases, the End User shall be obliged to reimburse DYNTELL for the work and other costs incurred up to the date of receipt of the withdrawal, based on the specifications of the change request affected by the withdrawal.
- The time elapsed between the order and the internal authorization/approval on the part of the end user does not form part of the implementation period, and DYNTELL cannot be held liable for any resulting delays in the implementation/handover date.
- Only legally compliant software – based on licenses purchased by a given company – may be used for NAV EKÁER reporting.
- The person/company submitting the data, i.e. the End User, is solely responsible for the accuracy of the data submitted.
- The customer is responsible for replacing unsuccessful EKÁER notifications due to maintenance of the EKÁER interface operated by NAV or other malfunctions, and for verifying the success of the replacement.
- In the event of a software error, DYNTELL shall remedy the malfunction as soon as possible. The End User shall be responsible for EKÁER notifications during work/maintenance. DYNTELL shall not be held liable for any EKÁER notifications that are not submitted due to this.
- DYNTELL is available for assistance and maintenance on working days from 8 a.m. to 4 p.m. At other times, on public holidays and non-working days, DYNTELL is only available to end users who have a relevant support contract/agreement. Hourly rates are charged based on the support package purchased or, in the absence thereof, always at the current hourly rate (see Appendix 1).
- The software may not be transferred to third parties.
- The software may only be used simultaneously by the number of users specified in the contract and purchased licenses.
- In the case of software installed for the End User, the End User shall bear the repair costs arising from the deletion or loss of files necessary for the operation of the software.
19. Data Protection
The Parties undertake a mutual obligation to comply with the provisions of the Data Protection Act.
20. Fees
The End User shall bear any sales tax and other taxes and public charges payable by the End User under the law arising from the use of the software and services specified in the Software User Agreement.