Licensor: TechDivision GmbH, An der Alten Spinnerei 2 a, 83059 Kolbermoor
1. Scope of application
TechDivision has developed Pacemaker, an Enterprise Integration Platform (EIP), which enables entrepreneurs to control various processes in their Magento 2 online shop in detail and to optimize the product import, among other things. The use of the software is reserved exclusively for entrepreneurs within the meaning of Section 14 BGB (German Civil Code).
2. Software license
TechDivision grants the customer a non-exclusive and territorially unrestricted right to use the software including source code and installation/configuration documentation (documentation) for its own purposes for the duration of the respective valid license agreement, subject to the full payment of the agreed license fee. This includes the customer's right to reproduce, translate, adapt, alter, transform, modify or arrange the software at its own discretion in any way and to use the modified software in the same way as the original version.
3. Scope of the right of use
3.1. The customer is entitled to install and use the software on one (1) individual Magento 2 live instance for the duration of the respective valid license agreement and without spatial restrictions. Test instances do not require licensing if a right of use for at least one live instance has already been acquired. The additional installation on one (1) backup instance does not require licensing if the backup instance is only accessible in the event of a failure of the live system (cold backup).
3.2. The rights of use also include all future versions of the software, insofar as TechDivision makes major or minor updates or patch releases available in the repository.
3.3. The customer may transfer the license to a third party if the third party accepts the validity of these license conditions. In this case, any rights of use of the customer to the software and documentation shall expire. In the event of a transfer, the customer is obliged to hand over to the third party all copies of the program, including any backups or backup copies, or to permanently delete the copies not handed over.
3.4. Use is limited to the customer's own purposes, i.e. only the customer, its employees or commissioned third parties (e.g. web agency) may have access to the software. Sub-licensing to third parties or the leasing or other making available (PaaS, SaaS, etc.) or use for third parties (e.g. outsourcing) is excluded and requires separate licensing.
4. License fee (Subscription)
4.1. For the granted rights of use to the software and documentation, the customer shall pay a license fee of
- 9.588 € per year (=799 €/per month) minimum term 1 year
- 8.748 € per year (=729 €/per month) minimum term 2 years
- 8.028 € per year (=669 €/per month) minimum term 3 years
All prices are net prices, plus VAT (if applicable).
4.2. The license fee must be paid within 7 days of invoicing for the entire contract period in advance.
5. Term, termination, price adjustment
5.1. The contract runs initially for the agreed minimum contract period and is then automatically extended by a further year in each case, unless the contract is terminated with at least one (1) month's notice to the end of the respective contract period.
5.2. In the event of a contract extension, the current list prices shall apply. In the event of a price increase, the customer has a special right of termination with a notice period of 4 weeks after invoicing. In the event of special termination, the contract shall be continued at the old conditions for a period of 3 months after expiry of the previous contract term in order to enable the Licensee to adapt its implementation.
6. Money-back guarantee
The customer can test the software risk-free for 60 days. If the customer does not like the software, he/she will receive a 100% refund of the license fee. The condition for this is that the customer has permanently deleted the software and documentation, including any backups or backup copies, and has confirmed the deletion to TechDivision in writing. This guarantee is an additional service of TechDivision and does not limit the legal claims of the customer.
The Licensee shall receive documentation in electronic form with the software. The documentation shall be handed over to the customer in the form of a copy of the software version at the time of handover. It is sufficient to hand over documentation that corresponds to the software status at the time of handover.
8. Performance specifications
The customer is supplied with a performance description in electronic form with the software. The services or functions listed therein shall be deemed the agreed specifications of the software.
The limitation period for statutory warranty claims for defects is limited to one (1) year from delivery of the software. This does not apply to the cases listed in Section 10.1.
10. Limitation of liability
10.1. TechDivision shall be liable without limitation (a) in case of nonnegligent (wilful) or gross negligence, (b) in case of a damage to life, body or health, (c) in case of a liability according to the german product liability act and (d) in case of a guarantee issued by TechDivision.
10.2. Notwithstanding anything above TechDivision shall not be liable for negligence, unless an obligation is breached whose compliance is of particular importance for meeting the purpose of the contract (“cardinal obligation”). In the event of a slightly negligent breach of a cardinal obligation, TechDivision's liability is limited to such typical damages and/or such typical extent of damages as were foreseeable at the time of conclusion of the contract. The period of limitation for the cases of negligent action listed in this paragraph 10.2 is one (1) year from delivery of the software.
10.3. All aforementioned limitations of liability shall also apply to any liability of TechDivision's members, managers, officers, employees and/or agents.
11. Typical extent of damage
The parties agree that in the constellation of a Magento online shop and the use of the Pacemaker software supplied by TechDivision, the typical extent of damage potentially foreseeable does not exceed € 5,000 net.
12. Written form
Neither this agreement nor any purchase order shall be modified, revised, altered or otherwise amended except in writing. This also applies for a waiver of this written form requirement. The transmission of a signed document via email will be deemed sufficient for the adherence of the written form. Verbal collateral agreements do not exist.
13. Severability clause
Should individual provisions of this contract or parts thereof be or become invalid, this shall not affect the validity of the remaining provisions or parts thereof. The parties mutually undertake to renegotiate the invalid provision and to work out a solution which comes as close as possible to the economic purpose intended by the parties. The same shall apply in the event of a loophole. If the parties cannot agree, the statutory provision shall apply.
14. Place of jurisdiction
The place of jurisdiction for all disputes arising from and/or in connection with this contract shall be the competent civil court at TechDivision's registered office. TechDivision is also entitled to take legal action at the general place of jurisdiction of the customer.
15. Applicable law
This contract shall be governed exclusively by the laws of the Federal Republic of Germany, excluding choice of law clauses and excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
16. Contract language
This translation is only provided for your convenience to the best of our knowledge and belief. Regardless in case of any contradictions or omissions the German version of this contract shall solely apply.