(hereafter referred to as IBA)
Issue: July 2020
The Licensee uses software products from iba AG in his factory.
IBA provides free updates and free support for the software licensed to the LICENSEE for a period of two years from the date of purchase of the software. All software updates released during this period can be installed and used by the LICENSEE.
Updates to the software (UPDATES) beyond this period require either an additional order of so called Extented Update Period products EUP on extra costs or a maintenance contract.
The use of the installed software is independent of its ability of updateability.
The software provided to the LICENSEE includes technical measures intended to prevent unlicensed use.
Use of the software's licensed features and an update outside the initial, free update period is only possible if the license container supplied with the licensed software (hardware key for USB interface or so-called soft license) has the corresponding activation key. For this purpose, the hardware key must be plugged into the appropriate interface on the PC or the appropriate soft license must be installed on the PC.
The license may not be removed while using the licensed features. The activation key is issued on the name of the Licensee (= end user) mentioned in the purchase order and is not transferable.
When installing software updates, the presence of a valid update license (EUP license) is checked by the system. In case of that the EUP date has been expired, an update file with the extension for the EUP period must be stored into the license key first, to fullfil the requirement for to install a newer software version.
This update file is being supplied either via an extra purchasing order of EUP products or by having a software maintenance contract according to the below mentioned conditions.
In both cases the update license file will be transmitted in electronic form via e-mail to the person in charge as mentioned accordingly.
§ 1 Subject matter of the contract
IBA provides the services described below exclusively for duly licensed standard software of iba AG, hereinafter referred to as CONTRACT SOFTWARE.
Individual software solutions and third-party software used in conjunction with iba software that are not included in the installation package of the respective iba software, in particular operating system software, are excluded.
Software licenses included in and supported by the Agreement (hereafter "CONTRACT LICENSES") are each listed in detail with the annual invoice for the maintenance contract.
§ 2 Scope of services
IBA provides the user with license extensions of the CONTRACT LICENSES (EUP licenses) for the respective contractual year during the contract period, which make it possible to install and execute current versions of the respective software ("updates"). The EUP licenses are sent to the LICENSEE at the beginning of each contract year as update license files for the respective license dongles in electronic form.
During the contract period, the user has access to the most current version of the CONTRACT SOFTWARE, whereby updates include technical advancements and / or functional enhancements of the standard products supported by this agreement without changing the essential programming basics (eg program structure, programming language) and functionalities. The program name (for example "ibaPDA") remains unchanged for updates and the product version number increases.
IBA determines the content of updates at its sole discretion. In particular, the LICENSEE is not entitled to include additional functionalities and program extensions of the CONTRACT SOFTWARE. Updates are always made available to the user for download via the website of iba AG (www.iba-ag.com). Access to the download area requires user registration.
§ 3 Support services
IBA offers individual hotline advice for the CONTRACT SOFTWARE through the iba Support Center via telephone or e-mail. The current telephone numbers and the email address for the support are listed in the "Help" menu of the program, on www.iba-ag.com, and in the user manual belonging to the software. Within the scope of the individual hotline consultation, IBA will answer questions related to a specific application (hereinafter referred to as "support case") of the CONTRACT SOFTWARE, product documentation as well as the program flow and use of the CONTRACT SOFTWARE during business hours. The current business hours are Monday-Friday from 8:00 to 17:00 clock (local time Fuerth / Bavaria) except on public holidays in Bavaria.
The aim of the support service is to enable the LICENSEE to solve individual support cases properly and to be able to remedy or circumvent problems by themselves. However, a problem solving is not owed, nor a general instruction or training in the application of the CONTRACT SOFTWARE. The support service can therefore only be used by adequately qualified employees of the LICENSEE experienced in dealing with the CONTRACT SOFTWARE and the corresponding system environment.
Alternatively, IBA may, at its own discretion, perform a support service by remote maintenance. The support service via remote maintenance includes checking the program sequence by accessing the target computer of the LICENSEE with remote access via Teamviewer or similar products. The remote access will be performed in a single session only with the consent and under supervision of the LICENSEE. The procedure can be aborted at any time by the LICENSEE or IBA; likewise, the LICENSEE can control which work is carried out in the context of remote access, in particular which accesses to personal or other data. For this, the LICENSEE must actively allow access to his computer by installing a Teamviewer client as well as the announcement of a session number and a password. The LICENSEE must take all technical and organizational measures himself, which are necessary to ensure data protection and data security. IBA and the LICENSEE agree on the time of remote access by e-mail or telephone.
The following support services are not provided under this contract and can be requested separately:
- Reviewing or installing third party programs
- Checking and configuration of automation devices (PLC) and network components
- Server configuration or system administration
- Database connection or database administration
- Data or process analysis or engineering
- Training and instruction
- On-site support
§ 4 Co-operation duties of the Licensee
The LICENSEE appoints to IBA as the contact person a qualified employee trained in handling the CONTRACT SOFTWARE. In particular, he must ensure that this contact person can implement any instructions, program changes or solution steps communicated or provided by IBA.
The LICENSEE must provide the software system environment (operating system version, .net version) and hardware system environment (data storage and memory) necessary for the use of the CONTRACT SOFTWARE, and in particular, updates of the latter.
In the case of error messages, the LICENSEE must describe in detail the symptoms that have occurred, the program version used by him, together with the hardware configuration and system environment, and if necessary, make available an iba support file that can be generated with the respective software.
The LICENSEE is responsible for the regular backup of his individual data and configuration files. A backup, especially before any support or maintenance action (for example, before changing, adjusting or replacing a program version) is required.
§ 5 Remuneration
For the agreed support and maintenance services, the LICENSEE pays a fee based on the number and type of contracted licenses, as well as on the applicable price base of the CONTRACT SOFTWARE. The fees are due in advance for each billing period. Without prejudice to further rights, IBA is obliged to provide the services owed under this contract only after receipt of the fees due for the respective billing period.
IBA is entitled to adjust the amount of remuneration once per contractual year. Changes in the quantity structure of the contract licenses are taken into account and documented in the respective annual invoice. Pure price increases may not exceed 10% of the applicable fee. IBA shall inform the LICENSEE in writing of the amended fee at least 3 months before a planned price adjustment.
Services other than those expressly specified in this agreement are not covered by the performance obligations of IBA and the remuneration. If the LICENSEE makes use of such other services within the scope of IBA'S operational capabilities, he shall remunerate them separately.
§ 6 Liability
IBA is liable to the LICENSEE only for intentional or grossly negligent damages. Except for willful behavior, IBA shall not be liable for any indirect or consequential damages, including but not limited to lost profits, lost production and / or business interruptions. This does not affect the mandatory legal claims of the LICENSEE, in particular for injury to life, limb and health.
§ 7 Duration of contract, termination
This agreement becomes effective upon the delivery of the license key by IBA and is initially valid for 12 (in words: twelve) months. It will be extended by 12 months if it is not terminated with a notice period of 3 months to the end of the contract period.
The right of each party to terminate this contract for cause remains unaffected. Important reasons for a termination for good cause include but are not limited to the following:
a) A material breach of this contract that results in loss of mutual trust or business basis;
b) A material breach of obligations under this contract, in particular non-payment despite a written reminder;
c) Application for the opening of insolvency proceedings concerning the assets of a contracting party, refusal of opening of insolvency proceedings for lack of assets or delivery of the affidavit of a contracting party or similar proceedings.
d) Price increases that are not due to a change in the quantity structure but represent pure price increases and exceed the maximum amount specified in §5
§ 8 Place of fulfillment, jurisdiction
The place of fulfillment is the domicile of the company iba (Fuerth in Germany). All obligations arising from the contractual relationship shall be deemed to be performed at the headquarters of iba.
§ 9 Final provisions
If any provision of this agreement should be ineffective or unenforceable, or if there are gaps in this agreement, this shall not affect the validity of the remaining provisions. In place of the ineffective or unenforceable provision, the effective or enforceable provision shall be deemed to have been agreed that comes closest to the meaning and purpose of the ineffective or unenforceable provision.