Terms and Conditions
Palette CAD GmbH, Stuttgart HRB 17548
1. Scope of the conditions
1.1 Deliveries and services by Palette CAD GmbH (hereinafter referred to as “Palette”) are provided subject exclusively to these terms and conditions. Thus, they apply for all business transactions even when they are not once again expressly agreed. These terms and conditions are deemed to have been accepted at the latest upon delivery of the delivery item or service provision. Palette objects to the application of the business terms and/or purchasing conditions of the customer.
1.2 All agreements made between Palette and the customer concerning the execution of the contract shall be laid down in writing in the order confirmation.
1.3 No. 11.12 through 11.15, 12, 13.4, 13.5 of the terms and conditions are only applicable with respect to commercial enterprises, corporate bodies under public law or public sector special funds.
2. Object of the agreement
2.1 Palette shall provide for the customer’s use the contractual software specified in the purchase order as object code including the user manual with the functions described in said manual. The contractual software can consist of programs and/or data (catalogues). Parts of the contractual software can be unusable if the customer has not purchased these parts. Further-more, Palette can grant the customer access to online services such as online programs or online storage space or apps in suitable stores.
2.2 Palette can provide the contractual software as object code on data storage media or as a download, or, if this has been agreed, via online access.
2.3 Palette grants the customer a simple and non-transferable right of use for the contractual software in unmodified form simultaneously on the agreed devices.
2.4 The customer is authorised to use the software solely within the scope specified by the contract, and (where applicable) in conjunction with a dongle or another form of copy protection. If the customer uses the contractual software to a greater extent than agreed (overuse), they shall pay Palette a licence fee increased by threefold. The contractual software can be composed of several program parts and catalogues with objects which may be purchased individually. Additional services from Palette concerning the contractual software can be arranged by the contractual partners separately on a remunerative basis.
2.5 The user manual can take the form of online help, in program help, or a text file that is included in delivery.
2.6 Palette is also entitled to subcontract their services.
2.7 Palette can make the contract software available to the customer for testing. Such trial provision is to be expressly agreed between Palette and the customer. The fee for provisioning of a demo version shall be indicated in the offer.
3. Intellectual property
3.1 The contractual software is copyrighted. Any manner whatsoever of re-engineering or editing the contractual software as well as reproduction of the results achieved is prohibited, except if these actions are necessary for the preservation of the intended use and the rectification of errors.
3.2 The customer is not authorised to back-translate the contractual software into the source code or to convert it into other programming languages or data formats or to reproduce it. Insofar as Palette has permitted conversion of the data into other data formats, e.g. by providing interfaces, Palette shall retain exclusive entitlement to the converted data.
3.3 Palette reserves unlimited rights to all documentation including information on interfaces. This documentation must only be made accessible to third parties with the consent of Palette and must be given back to Palette promptly when requested if the order is not placed.
3.4 Insofar as Palette has developed or created catalogues in fulfilment of a customer purchase order, Palette shall be entitled to use these products in whole or in part for their own purposes, inasmuch as nothing to the contrary has been expressly agreed.
3.5 The customer may create one backup copy with no express agreement.
4. Prices, terms of payment, delay in payment, cancellation
4.1 Prices are ex works plus the respectively applicable statutory turnover tax.
4.2 Invoices are usually created as digital invoices. Palette may charge a fee for issuing paper invoices.
4.3 Invoices shall be paid with no deductions at the latest within four weeks of issue.
4.4 If costs and interest have arisen, Palette is entitled to apply payment to first cover the costs, then to cover the interest and last, to cover the main service.
4.5 A payment shall be deemed to have been made only after Palette has the amount at their disposal.
4.6 If the customer becomes in arrears, Palette is entitled to demand annual interest as of the relevant point in time in the amount of 10 percentage points above the base interest rate, but at least 10% as a flat-rate damage compensation. The customer is entitled to furnish proof of lower costs and Palette of higher damages.
4.7 If payment in instalments has been agreed with a customer, then in the event of late payment of more than three months, the outstanding balance will be due in full.
4.8 Palette reserves rights to the supplied software, the data storage, the documentation and the delivered copy protection dongle until full payment has been made.
4.9 If the customer withdraws without justification from an order that has been placed, Palette can demand 10% of the sales price for the costs incurred due to processing the order and for lost profits irrespective of the possibility of lodging a claim for actual damages that are higher. The customer retains the right to furnish proof of lesser damage.
4.10 Insofar as a right to return purchases is covenanted with the customer, such right may only be exercised insofar as it is agreed upon in writing and insofar as Palette defaults on any service whose provisioning is guaranteed in writing. In such a case, any service provided thus far by Palette such as instruction and installation shall be charged on a pro rata basis.
5. Value retention clause
5.1 For recurring payments under contracts according to no. 6-8, Palette is entitled to adjust the prices after the expiry of the minimum term once a year to the development of the consumer price index, published by the Federal Statistical Office.
5.2 A right of special termination arises for the customer only if the price increase exceeds 5%.
6. Service partnership (update contracts)
6.1 Palette may offer the customer a chargeable service partnership agreement (PaletteService). During the term of the service partnership agreement, Palette shall deliver to the customer all current updates that have not yet been acquired (software and data), whereby merchandise and custom products are not included in the scope of delivery.
6.2 Updates shall comprise, in Palette’s discretion, either a new version of the program that offers an improved scope of services, or data extension and/or updating. Updates shall be provided solely for the current pre-update version of products manufactured by Palette. The content of updates is set by Palette without legal claim.
6.3 For the Service Partnership Agreement, Palette may agree a minimum term. It is automatically prolonged for a further 12 months if not cancelled by registered letter with 3 months notice. Insofar as any payment due is in arrears by more than two months, Palette shall be entitled to suspend the delivery of updates until such payment is received.
6.4 In an extension of the Service Partnership Agreement, e.g. by additional purchase of products, an additional minimum term of the entire contract of 12 months from the date of the extension is automatically agreed. If an additional minimum term has already been agreed, this remains unaffected.
6.5 Upon reinstatement of a terminated Service Partnership Agreement, Palette may charge a reasonable fee for updates to be made.
6.6 Palette can deliver updates in the form of online downloads. If the customer demands a delivery on a data storage medium, Palette is entitled to invoice the associated costs.
6.7 The technical support provided by Palette's Service Partnership is limited to support for restoring the functionality of the Software as provided in the user manual.
7. Palette Cloud and online storage
7.1 Palette may provide the customer with access to a Palette managed online storage (Palette Cloud) for a fee. Certain software services described in the operating instructions can only be used as long as the customer has access to the Palette Cloud.
7.2 Compensation for the Palette Cloud will be charged for a period of time and will typically depend on the storage space provided.
7.3 Palette may agree on a minimum term for access to the Palette Cloud. In this case, the contract will automatically be extended by 12 months if it is not cancelled in writing by registered letter 3 months before the end of the term. Palette has the right to suspend access to the Palette Cloud for arrears of more than two months.
7.4 Access to the Palette Cloud requires an up-to-date version of the software.
7.5 Following termination of the service partnership, and therefore access to Palette Cloud, Palette is not required to secure or retain any content stored by the customer on the Palette Cloud.
8.1 Palette may offer the contractual software for rent. During the term of the lease, Palette grants the customer the right to use the software in accordance to no. 2.3.
8.2 Upon termination of the lease, the right of use ceases.
8.3 During the rental, the update of the software to no. 6 and the use of the Palette Cloud as in no. 7 is included.
8.4 The contract is automatically renewed for 12 months if it is not cancelled in writing by registered letter 3 months before the end of the term. Palette has the right to suspend software deployment, delivery of updates, and deployment of the Palette Cloud until payment is due for arrears of more than two months.
9. Non-disclosure; intellectual property rights
9.1 Disclosure to any third party of passwords or access data provided by Palette, which are given for the purpose of copy protection or for access to Cloud services by Palette, to third parties without the express written permission of Palette is not permitted.
9.2 The customer shall diligently protect the contractual software including all documentation provided, as well as the backup copy from any unauthorised disclosure to a third party. This includes disclosure to unauthorised employees as well as binding third parties accordingly.
9.3 The customer shall inform Palette without delay of any infringement of Palette's protection rights of which they have knowledge or if claims are lodged against them by a third party because of protective right infringements arising from the contractual software. The customer grants Palette the opportunity of providing support to the customer in the event of any possible legal action and the customer is obligated to support Palette in the event of any claim lodged by a third party.
9.4 The customer indemnifies Palette on first demand for damages arising from infringement of the aforementioned obligations.
10. Customer’s duty to cooperate
10.1 The customer shall procure the software (including operating system) and hardware required for use of the contractual software at their own expense, install it in a timely fashion and maintain it in accordance with current technical standards. This shall take place only in the suitable, approved and intended version.
10.2 The customer is obliged to use only suitable employees when using the contractual software.
10.3 Insofar as the software is equipped with a dongle (software protection), the customer shall only use this dongle in combination with the software, shall store it carefully at all times and shall use no program for circumvention. Lost dongles shall only be replaced through the purchase of the protected software. The customer shall ensure that the operating system in the customer’s computer is able to recognise such dongle/copy protection.
10.4 In the case of equipping the software with an online license, the customer will always carefully store the access data provided to them and shall use no program for circumvention. Lost online licenses, if permanently installed on a customer's computer, will only be replaced through the purchase of the protected software. The customer warrants that the software has a permanent and sufficient internet connection to the license servers of Palette.
11. Liability for defects, subsequent performance
11.1 The contractual software is defective when it fails to function in the manner described in the user manual or in the contract to such an extent that the suitability of the contract software for normal use as described in the user manual is impaired.
11.2 The contractual software operates properly in the hardware and software environment specified by Palette, and in particular on the specified operating system. For Windows based programs supplied by Palette, as a matter of course, the operating system is the operating system for personal computers released by Microsoft one year previously. Palette is not liable for subsequent system updates by third parties.
11.3 A test version is only suitable for test purposes, not for effective use by customers and therefore does not represent defective contractual software. A version called a beta version or an RC version of the software is always a test version.
11.4 The availability level of the software provided by Palette on their servers for access by the customer (e.g. online programs, online data, online storage space) must be at least 99%.
11.5 Palette does not guarantee the completeness, currency or other properties of data catalogues.
11.6 The customer must lodge a complaint for obvious defects which are apparent to an average customer with no special effort within 10 business days after delivery by means of registered letter. For non-obvious defects, a complaint must be made within 10 business days after discovery, otherwise no claims arising from these defects can be made. The defects (including error messages that occur) must be reported in as much detail as possible (e.g. using error logs). The customer shall assist Palette in the troubleshooting and remedy of defects.
11.7 All deficient delivery items or services shall be repaired, replaced through a new delivery or performed again in the discretion of Palette and free of charge. Palette shall be entitled to effect such corrections by providing the customer with an optimised version of the contractual software. Palette is also entitled to bypass an error that may occur if the error itself can only be corrected with disproportionate effort and/or it significantly degrades the speed or response time of the contractual software.
11.8 If Palette is not liable, the customer shall reimburse Palette for the time expended and costs incurred (including, in particular, travel costs) at the respective applicable rates.
11.9 If Palette does not succeed in making corrections within a reasonable time and the problem recurs within a further reasonable time set by the customer, the customer shall be entitled to a price reduction or to rescind the order.
11.10 Liability for defects on the part of Palette is excluded if modifications have been made to the contractual software without the approval of Palette or the customer uses the contractual software in any other environment than the hardware or software environment for which it is intended. The customer shall be entitled to assert and prove that the change effected by the customer is unrelated to the defect reported by the customer, and that such change does not substantially increase the difficulty of analysing and eliminating the error. This does not constitute approval by Palette for such change.
11.11 In the event of a rescinding, the customer shall allow a charge for their use of the contractual software. This usage account shall be based on a customary usage time of four years.
11.12 Claims with respect to liability for defects become statute-barred twelve months after delivery with the exception of claims based on product liability law, other forms of manufacturer’s liability or in cases of deliberate intention, gross negligence, the absence of a guaranteed condition or infringement of significant contractual obligations as well as of injury to life, limb or health. A contractual obligation is significant when its fulfilment is a prerequisite for the proper completion of the contract and upon the compliance with which the contractual partner may rely as a matter of course.
11.13 In the event that the customer demands that subsequent performance activities be conducted at a location they specify, Palette can satisfy this demand, but, while the parts covered by the liability for defects shall not be billed, the additional expenditure, in particular work time and travel costs shall be reimbursed at our standard rates.
11.14 The period of liability for defects for subsequent performance is twelve months with the exception of claims based on product liability law, other forms of manufacturer’s liability or in cases of deliberate intention, gross negligence, the absence of a guaranteed condition or infringement of significant contractual obligations as well as of injury to life, limb or health. A contractual obligation is significant when its fulfilment is a prerequisite for the proper completion of the contract and upon the compliance with which the contractual partner may rely as a matter of course. This period shall extend at least until expiration of the original period of liability for defects for the delivery item. It shall be prolonged for such parts as could not be operated according to their purpose because of the interruption by the duration of the operational interruption which was caused by the subsequent performance.
11.15 Further claims regarding liability for defects on the part of the customer against Palette and their vicarious agents are excluded; however, no. 12 (Other liability) shall remain unaffected.
12. Other liability
12.1 Claims for damages on the part of the customer for whatever legal justification are excluded. This shall not apply inasmuch as liability is mandated by product liability law, other forms of manufacturer’s liability or in cases of deliberate intention, gross negligence, the absence of a guaranteed condition or infringement of significant contractual obligations as well as of injury to life, limb or health. A contractual obligation is significant when its fulfilment is a prerequisite for the proper completion of the contract and upon the compliance with which the contractual partner may rely as a matter of course.
12.2 The damages for the infringement of significant contractual obligations (No. 9.1 p. 3) are limited for both foreseeable damage typical for the contract, provided there is no deliberate intention or gross negligence, as well as per instance of damage to € 1,000,000.- for financial losses, to € 5,000,000.- for material damage and bodily injury; Palette shall not be liable for lost performance outcomes, lost profits, lost cost savings, indirect damage and consequential losses. The limitations shall not apply inasmuch as the damage is covered by Palette’s business liability insurance. Palette commits to maintaining the coverage existing at the time the contract is concluded.
12.3 The previous provisions are not associated with a shifting of the burden of proof to the disadvantage of the customer.
12.4 The use of online storage space provided by Palette (Cloud) shall not give rise to any liability on the part of Palette for contents uploaded by the customer. In particular, Palette shall not be liable for the loss of contents or data. The customer is obligated to create suitable backup copies. Palette assumes no liability for foreign contents, in particular for improper use and the uploading of legally forbidden contents (information, items, other services) or links which are damaging to third parties or infringe upon national or international copyrights and marks, or patent rights, name rights or trademark rights, industrial property rights or personal rights of third parties. Palette does not warrant any permanent monitoring of contents nor any full-time functionality of the Cloud.
13. Final provisions
13.1 The transfer by the customer to a third party of rights and obligations arising from this contract requires the prior written agreement of Palette.
13.2 The customer is not entitled to exercise a right of detention against Palette because of another entitlement, not arising from this contract. The customer may claim compensation only for such claims against Palette as are undisputed or legally established.
13.3 Changes and additions to this contract take effect only if laid down in a supplementary contract signed by both parties.
13.4 The place of fulfilment is the registered office of Palette.
13.5 The exclusively competent court for all disputes arising from this contract is that for the registered address of Palette.
13.6 This contract is subject to German law. The applicability of the Vienna Convention on Contracts for the International Sale of Goods of the UN is excluded.
14. Severability clause
Should any individual provision hereof be or become void, illegal or unenforceable, the validity of the remaining provisions hereof shall in no way be affected. In such a case, the contracting parties shall replace any provision of the Agreement that becomes ineffective with a provision whose economic aims are as close as possible to those of the invalid provision. Until such a replacement provision is adopted, a provision of the Agreement whose economic aims are as close as possible to the intentions of the invalid provision shall apply in lieu of the invalid provision. The same applies in the event that a ruling is required to cover a lacuna in the contract.