STANDARD TERMS AND CONDITIONS
Palette CAD GmbH
Phone +49 711 9595-0
Fax +49 711 9595-250
Trade Register Stuttgart 17548
VAT ID No. DE 178416603
Tax no. 99077/00922
SEPA Creditor Identifier:
Dr.-Ing. Walter Zinser
Authorised signatory: Volker Zeller
Standard Terms and Conditions
Effective: 1 May 2019, Palette CAD GmbH, Trade Register Stuttgart 17548
1. Scope of the conditions
1.1 Deliveries and services by Palette CAD GmbH (“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 Changes to these terms and conditions shall be proposed to the customer no later than two months beforehand. The customer shall be deemed to have accepted these changes if they do not reject the changes before they take effect. Palette shall make this expressly clear to the customer in its proposal.
1.4 Nos. 11.12 to 11.15. inclusive, 12, 13.4 and 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. Substance of contract
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. Furthermore, 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, and for online access a simple and non-transferable right of use for the user interface of the software. (Sub)leasing or renting is not permitted.
2.4 The customer is authorised to use the contractual software solely within the scope specified by the contract, and (where applicable) in conjunction with copy protection. If the customer uses the contractual software to a greater extent than agreed, they shall pay Palette a licence fee increased by threefold.
2.5 The user manual can take the form of online 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 a test version of the contractual software available to the customer. Such a trial is to be expressly agreed between Palette and the customer. The fee for provision of a test version of the contractual software shall be indicated in the quote.
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 may 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 As a rule, invoices are issued as online invoices. Palette is entitled to charge a fee for invoices issued on paper.
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 firstly to cover the costs, then to cover the interest, and lastly 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 compensation for damages. The customer is entitled to furnish proof of lower costs, and Palette of higher damages.
4.7 Insofar as any payment due is in arrears by more than two months, Palette shall be entitled to suspend the provision of contractually agreed services until such payment is effected.
4.8 If payment in instalments is agreed with the customer and the customer is in default of payment for more than three months, the remaining balance will become due for payment in full.
4.9 Palette retains the title to the delivered contractual software, the data carriers, the documentation and the delivered hardware until payment is made in full.
4.10 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 lower damages.
4.11 Rights of return must be agreed in writing. If a right of return has been agreed with a customer, this can be exercised only if particular performances guaranteed by Palette in writing are not fulfilled, and the utility value of the software is thereby nullified. In this case, services already provided by Palette, such as instruction, training and installation, will be charged proportionally.
5. Indexation clause
5.1 In the case of recurring payment resulting from contracts in accordance with Nos. 6-8, Palette is entitled after expiry of the minimum term to adjust the prices once a year on the basis of the consumer price index.
5.2 When the prices are adjusted, the customer is entitled to terminate the contract if the price increase is greater than 5%.
6. Service contract (update contract)
6.1 During the term of the fee-based service contract, Palette shall deliver to the customer all current updates that have not yet been purchased (programs and data), whereby merchandise, custom products and installation services are not included in the scope of delivery.
6.2 Updates shall comprise, at the discretion of Palette, 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. Palette shall determine the content of updates at its sole discretion, whereby any customer right to assert any claim in respect of such content shall be excluded.
6.3 The service contract is automatically renewed for a further 12 months if it is not terminated in writing with 3 months notice.
6.4 If the service contract is extended, for example by purchase of additional products, an additional minimum term of 12 months from the date of extension shall apply to the whole contact. If a longer minimum term had already been agreed, this shall remain unaffected.
6.5 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.
6.6 The technical support offered by Palette as part of the service contract is restricted to support for restoring the functionality of the software as described in the user manual.
7. Palette Cloud and online storage space
7.1 For a fee, Palette can offer the customer access to an online service (Palette Cloud) provided by Palette. Certain software services, described in more detail in the user manual, can only be used if the customer has access to Palette Cloud. If Palette processes personal data of third parties on behalf of the customer, the Palette contract data processing terms and conditions apply.
7.2 Payment for Palette Cloud entitles the customer to access Palette Cloud for a certain period of time. 7.3 The contract for Palette Cloud is renewed for a further 12 months if it is not terminated in writing with 3 months notice.
7.4 The customer requires a current version of the software used in order to access Palette Cloud.
7.5 Palette’s obligation to securely store any content saved by the customer on Palette Cloud ceases to apply six months after the termination of the contract and the notification from Palette that the customer no longer has access to Palette Cloud.
8.1 Palette grants the customer the right to use the software in accordance with No. 2.3. only for the duration of the lease.
8.2 During the lease, software updates in accordance with No. 6 and the use of Palette Cloud in accordance with No. 7 are included.
8.3 The contract is automatically renewed for a further 12 months if it is not terminated in writing with 3 months notice.
9. Nondisclosure, intellectual property rights
9.1 Disclosure to any third party of passwords and access data provided by Palette for copy protection purposes or in order to access cloud services is prohibited unless expressly authorized in writing by Palette.
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 ensuring third parties adhere to this requirement.
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 shall 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. Co-operation of the customer
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 standards. This shall take place only in the suitable, approved and intended version.
10.2 In using the contractual software, the customer shall solely use suitable staff members.
10.3 Insofar as the software is equipped with a single-computer licence or an online licence, the customer shall store the access data given to them carefully at all times and shall use no program for circumvention. Lost single-computer licences shall only be replaced through the purchase of the protected software. The customer shall provide a permanent and adequate internet connection in order for the software to access the Palette licence servers.
10.4 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 the dongle/copy protection.
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. As a matter of course, the operating system for the Windows programs delivered by Palette is the operating system for personal computers released by Microsoft one year before the delivery date. Palette shall not be liable for subsequent system updates.
11.3 A test version is only suitable for test purposes and not for productive use by customers, and therefore does not represent defective contractual software. Versions of the software referred to as Beta or RC versions shall always be deemed to be test versions.
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%. The extent of non-availability due to failure is computed by the overall time period in which the system was not available due to failures in three months minus the maintenance window.
11.5 Palette does not guarantee the completeness, currency or other properties of data catalogues.
11.6 The customer must lodge a complaint in writing for obvious defects which are apparent to an average customer with no special effort within 10 business days after delivery. For non-obvious defects, a complaint must be made in writing within 10 business days after discovery, otherwise no claims arising from these defects can be made. The defects (including error messages which 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 at the discretion of Palette and free of charge. Palette shall be entitled to effect such corrections by providing the customer with a modified 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. The foregoing shall not constitute or be construed as any authorisation on the part of Palette to effect any such change in the software.
11.11 In the event of a rescinding, the customer shall allow a charge for their use of the contractual software. This charge 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 Palette’s 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 in accordance with the last sentence of No. 11.12 as well as of injury to life, limb or health. 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 in accordance with the last sentence of No. 11.12 as well as of injury to life, limb or health.
12.2 The damages for the infringement of significant contractual obligations are limited for both foreseeable damage typical for the contract, provided there is no deliberate intention or gross negligence, as well as well as per instance of damage to € 1,000,000.00 for financial losses, to € 5,000,000.00 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 shall maintain 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 (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 shall 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 Palette 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 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 ineffective 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 ineffective provision shall apply in lieu of the ineffective provision. The same applies in the event that a ruling is required to cover a lacuna in the contract.
Download the current terms and conditions here.