Terms and Conditions

1.Validity of Contract Conditions
1.1 These General Terms and Conditions shall apply exclusively to business to business transactions for the sale of standard software and for pre-contractual obligations, provided no other provisions have been made. You will receive exhaustive reference documentation for the PROGRAM (software including documentation and user manual) outlined in the agreement between the contract parties. This agreement replaces all previously arranged written or verbal arrangements with regard to the object of agreement. No other contract conditions shall become a part of this agreement, even if mySoftIT GmbH is not expressly opposed to them.
1.2 Even if not expressly mentioned on conclusion of similar contracts and follow-up orders, the General Terms and Conditions of mySoftIT GmbH shall apply exclusively in their most current version at the time when the Licensee submits his/her statement unless the contract parties make alternative arrangements in writing.
2.Conclusion of Contract
2.1 Offers submitted by mySoftIT are non-binding and without obligation unless indicated in writing as binding. Legal obligation arises only through a contractual agreement signed by both parties or written order confirmation from mySoftIT, or when mySoftIT begins delivery of the contractually agreed upon service.
3.Object of Agreement
3.1 The object of this agreement is the delivery of standard software and the granting of usage rights in accordance with Numeral 4.
3.2 The Licensee has ensured prior to the conclusion of the contract that the software specifications correspond to his/her wishes and needs. He/she is familiar with the basic functional features and conditions of the software.
3.3 The basis for the scope, type and quality of the deliveries and services is formed by the license agreement. Other information or requests shall only become part of this agreement when the contract parties arrange them in writing or mySoftIT provides a written confirmation. Subsequent amendments to the scope of delivery require written agreement or written confirmation from mySoftIT.
3.4 Product descriptions and representations in test programs are service descriptions, not guarantees. A guarantee can only be made through a written statement prepared by mySoftIT’s management.
3.5 The Licensee shall receive the PROGRAM including documentation. Provided no special agreement has been made, the software and manual will be made available in electronic form. The Licensee has no claims to transferal of source code.
4.The Licensee’s Rights to the Software
4.1 The PROGRAM is protected by law. With regard to the relationship between the contract partners, mySoftIT is the sole owner of copyrights, patent rights, trademarks and all other performance rights to the PROGRAM as well as all other objects related hereto. mySoftIT has the corresponding right of publicity with regard to third-party rights.
4.2 The Licensee has the right to use the software permanently within his/her own company for his/her own purposes (simple right of use). All IT systems onto which the PROGRAM is copied or installed, whether wholly or in part, for a short or long period of time, must remain on the Licensee's premises and be retained as part of his/her direct property. The software may only be used simultaneously within the limits stated in the licensing contract agreement. mySoftIT hereby grants the Licensee the right to copy the PROGRAM to main memory and hard disks and correct errors that may occur. The Licensee may make back-up copies of the PROGRAM to ensure secure operation. Any other type of use is not permitted.
4.3 The Licensee will not make any copies of the PROGRAM documentation without prior written consent from mySoftIT. The Licensee can request additional copies of documentation material from mySoftIT for a fee, calculated on the basis of the respective standard rates.
4.4 mySoftIT will permit the PROGRAM to be forwarded (wholly or partially) to a third party only under the following circumstances:
  • The Licensee is obligated to transfer every copy of the software to the acquiring third party, delete any other copies, in particular those on data storage devices, hard disks or main memory, permanently relinquish the right of use and inform mySoftIT in writing of the fulfillment of these obligations.
  • The third party shall confirm in writing to mySoftIT that he/she will abide by the conditions set forth in this license agreement and enter into the contractual obligations.
  • There are no important grounds opposing this. Confirmation must be made by mySoftIT in writing to become effective.
4.5 The Licensee may only decompile the interface information of the software in accordance with the regulations set forth in Section 69 e of German Copyright Law and only when he/she informs mySoftIT of his/her intentions in writing and requests transfer of the required information with at least two weeks prior notice. For all knowledge and information that the Licensee receives within the scope of decompilation, Numeral 14 shall apply. Prior to involving any third parties, he/she shall acquire for mySoftIT a statement from the third party indicating directly vis-à-vis mySoftIT their compliance with Numerals 4 and 14 of the provisions set forth herein.
4.6 As for the Licensee’s rights and duties upon commencement and termination, Numeral 13 shall apply. All other actions related to realizing the value of the software, in particular rental, hire and distribution in physical or non-physical form, are not permitted without prior written consent from mySoftIT.
5.Period of Performance
5.1 Information regarding delivery times and dates and times for service provision are non-binding, unless declared as binding by mySoftIT in writing. mySoftIT reserves the right to perform partial services insofar as the delivered parts can be used by the Licensee in a practical manner.
5.2 Delivery and performance deadlines shall be extended by the period in which the Licensee is in default of payment of the contract and by the period in which mySoftIT, through circumstances which are beyond its control, is hindered in its delivery or performance of service plus a reasonable start-up period at the end of such hindrance. These circumstances include force majeure, strikes and lack of cooperation on the part of the Licensee.
5.3 If the parties to the agreement agree to additional services that have an effect on agreed deadlines, then these deadlines shall be extended by a reasonable period of time.
5.4 Reminders and deadline notifications made by the Licensee require written form in order take effect. Grace periods must be reasonable. A period of less than 4 weeks is only considered reasonable in cases of extreme urgency.
6.Remuneration, Payment
6.1 The agreed remuneration is payable after the software has been delivered and the Licensee has received the invoice without deductions and within 14 days.
6.2 All prices are excluding the legally applicable sales tax.
6.3 A right to compensation may only be exercised in cases of dispute or for legally determined claims. Except for within the scope of Section 354 a of the German Commercial Code, the Licensee may only transfer claims resulting from this agreement to third parties with the prior written consent of mySoftIT. The Licensee may only exercise a right of retention with regard to the respective agreement.
7.Maintenance
7.1 The Licensee has the right to free maintenance services for one year after delivery of the PROGRAM in terms of Numeral 7.2. Afterwards, the Licensee will receive maintenance services in terms of Numeral 7.2 upon payment of the annual maintenance fee in accordance with the most current price list. The maintenance agreement period (support status) will be renewed automatically for another year if the Licensee does not cancel the contract in written form up to 6 weeks before maintenance expiration date. If the Licensee wishes to obtain maintenance services in terms of Numeral 7.2 after he/she has declined them for a certain period of time, then 1/12 of the annual maintenance fee shall be charged in accordance with the respectively current mySoftIT price list for each full month of the period that was not covered by maintenance. Afterwards, the maintenance fee for one year will be billed in advance.
7.2 The Licensee has the right to the following services within the scope of the mySoftIT maintenance:
  • He/she will receive the latest official version/release of the PROGRAM. The charges for creation and shipment of the storage media and documentation will not be invoiced to the Licensee.
  • The Licensee has the right to transfer error descriptions with all necessary documentation including a memory printout and, in case of emergency, a file list via email. mySoftIT will correct errors in one of the following versions/releases of the software at its own discretion and provide the version/release to the Licensee in accordance with the maintenance agreement. However, should mySoftIT determine that no programming error is present, mySoftIT can demand remuneration from the Licensee for the services performed and travel expenses incurred at its usual standard rates.
8.The Licensee’s Obligations
8.1 The Licensee is required to have all delivery items provided by mySoftIT inspected by trained personnel immediately upon delivery in accordance with the commercial provisions set forth in Section 377 of the German Commercial Code and to report the errors detected in writing, including a detailed description of the problem. The Licensee shall examine each module thoroughly in advance with regard to usability in his/her specific situation before he/she begins operational use. This also applies to PROGRAMS that the Licensee receives within the scope of maintenance services.
8.2 The Licensee shall make appropriate arrangements in case the PROGRAM does not work properly, in part or whole (e.g. through backing up data, error diagnosis, regular analysis of results). Ensuring the proper operation of the work environment of the PROGRAM is the Licensee's responsibility.
9.Material Defects
9.1 mySoftIT warrants that the software is suitable for the purpose envisioned in the contract, for ordinary use, and that it has the qualities that are typical and can be expected from software of its kind; however it is not completely free of errors. Any functional restriction of the software that occurs due to hardware defects, environmental conditions, faulty operation or similar is not a defect. Minor reductions in quality shall not be taken into account.
9.2 In the case of material defects, mySoftIT GmbH will first be provided with the opportunity of subsequent performance. mySoftIT reserves the right to choose the appropriate means of subsequent performance either by rectifying the error, delivering a PROGRAM that does not contain the defect or by demonstrating to the Licensee the existing possibilities for preventing the defect from having a negative impact. The Licensee is required to accept a new program version or a previous program version that is equivalent to the original version and does not contain the error, if this is considered reasonable and appropriate.
9.3 The Licensee will support mySoftIT in error analysis and correction of faults by describing any problems that arise with all of the required documentation including memory printouts and, in case of emergency, a file list and afford mySoftIT the required time and opportunity for the correction of faults. mySoftIT is entitled to determine whether to correct the faults on-site or on its own premises. mySoftIT can also perform services via remote maintenance.
9.4 mySoftIT can demand additional charges should the software be modified, used outside the prescribed environment or improperly operated. mySoftIT can demand reimbursement for expenditure at its regular standard rates if no defects are found. The burden of proof lies with the Licensee. Section 254 of the German Civil Code applies accordingly.
9.5 If mySoftIT absolutely refuses to provide subsequent performance or if these performance measures are unsuccessful or if it would be unreasonable to expect the Licensee to accept these measures, he/she may, according to Numeral 9.6, rescind the contract or correspondingly reduce the remuneration and, according to Numeral 11, demand compensation or reimbursement for expenditure. These claims are subject to the statute of limitations outlined in Numeral 12.
9.6 Termination of the contract of exchange of goods and services (e.g. rescission, cancellation for an important reason, reduction of compensation instead of performance of service) always requires that the reason for termination be stated and advance warning be given with a deadline for the elimination of the issues (generally a minimum of 2 weeks) and may only be declared within two weeks after the deadline has expired. The statement must be made in writing to become effective. In the cases of Section 323 II of the German Civil Code, it is not necessary to set a deadline. The party that is wholly or primarily responsible for the reversal may not demand reversal.
10.Defect of Title
10.1 mySoftIT guarantees that no third-party claims prevent the Licensee’s use of the PROGRAM as stipulated in the agreement. In cases of defect of title, mySoftIT provides a guarantee by providing the Licensee with the legally undisputed ability to use the software or equivalent software.
10.2 The Licensee shall inform mySoftIT immediately in writing in the case that third parties enforce industrial property rights (e.g. copyrights or patent rights) against him/her. The Licensee authorizes mySoftIT to handle the dispute with the third party alone. Should mySoftIT makes use of this authorization, the Licensee may not acknowledge the third-party claims without mySoftIT's consent. mySoftIT shall defend itself against the third party’s claims at its own expense and relieve the Licensee of any costs associated with the defense against these claims, insofar as these are not based on a breach of duty on the part of the Licensee.
10.3 If it is not possible for or if it would be unreasonable to expect mySoftIT to defend itself against the third-party claims, the Licensee is authorized to terminate the agreement. For liability, Numeral 11 shall apply, for the statute of limitations, Numeral 12 applies.
11.Liability
11.1 mySoftIT shall only provide compensation or reimbursement for wasted expenditure, for any legal reason whatsoever (e.g. for obligations created by legal transactions or similar obligations, violation of duty and unlawful acts) to the following extent:
  • Liability in the event of intent and warranty claims is unlimited.
  • In the event of gross negligence, mySoftIT shall be liable for the damage typical for such contracts and foreseeable at the conclusion of the contract.
  • In the event of a negligent breach of a duty which is so material that the purpose of the contract might be endangered (cardinal duty), mySoftIT shall be liable for the damage typical for such contracts and foreseeable at the conclusion of the contract; at the most, however, for EUR 50,000.- per claim and EUR 250,000.- in total.
11.2 mySoftIT reserves the right to claim contributory negligence. The Licensee is obligated to ensure data backup and virus protection in accordance with the current state of technology.
11.3 mySoftIT is liable in accordance with statutory provisions in cases of intent, claims pursuant to the German product liability law as well as in cases of bodily harm, damage to health and/or mortal injury
12.Statute of Limitations
12.1 The statute of limitations is
  • one year, commencing upon delivery of the software for claims regarding a refund of the purchase price based on a rescission of contract or reduction of the purchase price; however, the statute of limitations period shall be no less than three months from the date that an effective notice regarding the rescission or reduction of purchase price has been given;
  • one year for cases of other quality defects;
  • one year for cases of defects of title when the defect of title does not fall under a third party’s interest in property, on the basis of which he/she can demand the objects outlined in Numeral 3.5;
  • one year for cases of any other claims for damages or reimbursement of wasted expenditure, beginning at such time when the Licensee becomes aware of the circumstances giving rise to the claim or should have become aware in the absence of gross negligence. In any event, the claims shall come under the statute of limitations no later than the expiration of the maximum periods set forth in Section 199 of the German Civil Code.
12.2 Claims based on intentional wrongdoing or grossly negligent conduct, or on a violation of a guarantee or on malice and in the cases outlined in Numeral 11.3 shall be subject to the applicable statutory periods of limitations.
13.Commencement and Termination of the Licensee’s Rights and Duties
13.1 Ownership of the items delivered and rights according to Numeral 4 are only transferred to the Licensee once the purchase price has been paid in full. Prior to this, he/she has only a preliminary, contractual and, according to Numeral 2, revocable contractual right of use.
13.2 mySoftIT may also revoke these rights in accordance with Numeral 4 for an important reason. An important reason exists if the Licensee does not pay due remuneration or violates its duties under Numeral 4 considerably despite a written reminder.
13.3 If the right of use has, according to Numeral 4, not become effective or terminates, mySoftIT may request that the Licensee return all items transferred or provide a written assurance that these have been destroyed and, in addition, mySoftIT may request the deletion or destruction of all copies and a written assurance thereof.
14.Confidentiality
14.1 The parties to the agreement undertake to treat as confidential all items (e.g. software, documents, information) received or made available to them by the respective counterparty in connection with the agreement which are legally protected or contain business or trade secrets and are labelled as confidential. This confidentiality obligation also continues to apply after the expiration of the agreement. Exempted from this confidentiality agreement are information and documents that are known to the public or become known in the absence of any breach of duty to maintain secrecy. The parties to the agreement shall safeguard and protect these items in such a manner that access by third parties is impossible.
14.2 The Licensee shall only make the items in the agreement accessible to the employees and other third parties that require access to these items in order to carry out their assigned tasks. The Licensee is responsible for informing these persons of the confidentiality of these items.
14.3 mySoftIT stores all data obtained from the Licensee in connection with the business relationship in accordance with the regulations on data protection.
15.Preference
15.1 The Licensee authorizes mySoftIT to name the Licensee as a user in its marketing publications.
16.Transfer
16.1 mySoftIT may transfer all of its rights and obligations resulting from this contract in part or whole to third parties provided it notifies the Licensee of this occurrence in writing. mySoftIT can also designate one or more agents to fulfill obligations or exercise rights resulting from this contract; these agents are authorized to undertake any measures that mySoftIT is authorized to undertake within the context of this agreement.
17.Final Provisions
17.1 Changes and amendments to the agreement require written form in order take effect. The written form clause can also be upheld through text transmissions, in particular via fax or email.
17.2 mySoftIT is entitled to process and to save the data obtained from the Licensee in connection with the business relationship. mySoftIT shall observe the provisions set forth in data protection laws.
17.3 This agreement is subject to the law of the Federal Republic of Germany. The use of the integrated UN Convention on Contracts for the International Sale of Goods is precluded. The mySoftIT headquarters is the exclusive court of jurisdiction for all legal disputes arising from and in connection with this agreement.
17.4 If any provision of this agreement is or becomes ineffective, this shall not affect the validity of the remainder of the agreement. The parties are committed to replace the ineffective provision with a provision that comes closest to the desired economic sense and purpose of the ineffective provision.
Last updated 01.01.2008
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