General Business Terms and Conditions for the Test Phase of the Asura Enterprise Online Services of One Vision Software AG
1 General
1.1 The following General Business Terms and Conditions of OneVision Software AG (hereinafter "OneVision") shall apply to all contracts between OneVision and the customer which cover the gratuitous examination and revision of the customer's data files by OneVision during a test phase using OneVision's software Asura Enterprise (hereinafter "Asura Enterprise"), and the transmission of these files via data networks (hereinafter "Asura Enterprise Online Services").
1.2 Any of the customer's terms and conditions, or other restrictions, which impair or deviate from these General Business Terms and Conditions will not be recognized, unless OneVision has explicitly acknowledged in writing in each individual case that such terms and conditions or restrictions replace these General Business Terms and Conditions.
1.3 All other agreements, declarations, side agreements and amendments to these General Business Terms and Conditions require the written form to be valid, i.e. the handwritten signature of authorized representatives. This also applies to any amendment to this clause.
1.4 OneVision does not assume any risk of procurement ("Beschaffungsrisiko"), unless OneVision has in each individual case assumed in writing such risk of procurement ("Beschaffungsrisiko") and explicitly referred to it as the risk of procurement ("Beschaffungsrisiko").
2 Test Phase
2.1 OneVision shall allow the customer to test the Asura Enterprise Online Services free of charge and without any obligation for a period of 14 calendar days (hereinafter "Test Phase"). During this Test Phase, OneVision shall examine and revise the files transmitted by the customer up to a file size of 50 MB per file.
2.2 OneVision is entitled to terminate with immediate effect and without giving reasons this Test Phase. In such event, OneVision shall inform the customer about the termination of the Test Phase via the Asura Enterprise Online Services web site established by OneVision for the Asura Enterprise Online Services.
2.3 Contracts between OneVision and the customer which already exist shall remain unaffected by any termination of the Test Phase pursuant to Section 2.2 above.
3 Conclusion of Contract
3.1 Offers made by OneVision are not binding.
3.2 The customer shall transmit online to OneVision the file to be examined and revised by OneVision. The file shall be transmitted by using the transmission options available on the Asura Enterprise Online Services web site (hereinafter "Online Transmission"). With the Online Transmission of the file, the customer shall render its binding offer for the purpose of concluding the contract.
3.3 OneVision shall examine the customer's offer and shall inform the customer per Email whether it accepts or rejects the offer.
3.3.1 In the event of acceptance, OneVision shall inform the customer by Email of the confirmation of the order by sending the customer a log file with information about the download location for the file processed by OneVision. With the order confirmation, OneVision shall accept the contractual offer made by the customer. The contract between OneVision and the customer is thereby concluded.
3.3.2 A log file sent by OneVision with information about the error message as the reaction to the transmission of a data file by the customer shall be deemed to be a rejection by OneVision. The rejection will not be notified separately. Such an error notice occurs, in particular, if the data file transmitted by the customer has a file size exceeding 50 MB.
4 Scope of Performance
4.1 OneVision shall examine and revise the data file transmitted by the customer up to a size of 50 MB. The files shall be examined and revised exclusively by means of Asura Enterprise. The contents and scope of the examination and revision shall be determined and limited in accordance with the scope of performance of Asura Enterprise. The examination and revision of files by means of Asura Enterprise shall encompass the adjustment of EPS, PDF, PostScript, and TIF files, the examination and correction of graphics and colors, as well as the documentation of the implemented automatic error corrections and the problems which require manual intervention. A description of the Asura Enterprise program is available on the web site of OneVision.
4.2 OneVision shall inform the customer by Email when the examination and revision is completed. The customer can retrieve the Output File using the link for downloading provided by OneVision.
4.3 OneVision herewith expressly draws the customer's attention to the fact that after the expiration of 72 hours after successful uploading of the file to be processed by the customer, the file will be deleted by OneVision.
4.4 With effect from OneVision's notification to the customer of the conclusion of the examination and revision, and with effect from the availability of the Output File on the Asura Enterprise Online Services web site for the customer's retrieval, OneVision has fulfilled its contractual obligation vis-à-vis the customer.
5 Customer's Co-operation
5.1 The customer must be registered with OneVision prior to using the Asura Enterprise Online Services. For this purpose, OneVision shall submit a request to the customer for the data it requires in order to executing the contract. The customer shall render complete and correct information when registering.
5.2 The customer can choose his identification code and password at his own discretion. The customer has the sole responsibility for all transactions and declarations, as well as for any use which is transacted under his identification code and password.
5.3 It is the customer's sole duty to ensure that it meets the technical requirements necessary to use the Asura Enterprise Online Services.
5.4 It is the customer's sole competence and responsibility to ensure the orderly and regular back-up of files to be examined and revised by OneVision, including the Output File provided for the customer's retrieval. In particular, the customer is responsible for retaining the original of the data file transmitted to OneVision for examination and revision, and for making corresponding back-ups of this file. OneVision herewith expressly draws the customer's attention to the fact that OneVision does not make any back-up copies due to capacity reasons.
6 Prices and Payment Conditions
6.1 OneVision does not levy charges for the examination and revision of customer files by OneVision during the Test Phase.
6.2 All costs which are incurred by the customer when using the Internet, Email or telecommunications shall be borne by the customer.
7 Transferability
The transfer of rights and obligations under this contract by the customer requires the prior written consent of OneVision.
8 Performance Period
8.1 OneVision will examine and revise the data file transmitted by the customer as soon as reasonably possible within the normal course of business and under consideration of the capacities available to OneVision.
8.2 Unless expressly agreed otherwise in writing, OneVision is entitled to render partial performance.
8.3 If OneVision is temporarily prevented from fulfilling its performance obligation due to force majeure, state intervention - irrespective of whether this affects the territory of the Federal Republic of Germany or territories from which and/or through which OneVision itself is supplied - lock-outs or strikes in its own plants, distributing facilities, supplier businesses or in the area of transport, catastrophes, war, revolt or similar events beyond OneVision's control, OneVision is released from its performance obligation for the term of the disruption and in the scope of its consequences. The performance period is extended accordingly as a result of the events set forth in the first sentence. Insofar, the customer shall have no rights due to the non-performance or delayed performance.
8.4 The legal consequences of any eventually incurring impossibility due to the events listed in Section 8.3. above, remain unaffected from the provision in Section 8.3.
9 Liability due to Breach of Contract
9.1 OneVision shall be liable vis-à-vis the customer for damages due to default, impossibility, non-performance or faulty performance, pursuant to the scope of liability regulated in Section 11.
9.2 The details contained in Asura Enterprise's program specifications concerning the scope of performance of the software are not warranties. OneVision disclaims all warranties for the condition ("Beschaffenheit"), durability or any other warranties, unless OneVision has expressly agreed to provide such warranty in an individual case and has denoted it as such warranty in writing.
10 Third-Party Industrial Property Rights
10.1 The customer shall warrant that the examination and revision of the data file by OneVision as ordered by the customer does not violate any industrial property rights or other rights of third parties.
10.2 The customer shall warrant that the files transmitted by the customer (e.g. texts, photographs, graphics, sound carriers and videotapes, etc.) each individually and in combination with each other
10.2.1 are neither questionable in relation to advertising or media law, nor relevant with respect to criminal law or competition law,
10.2.2 have no pornographic contents, statements of extreme political, religious or ideological groups,
10.2.3 do not infringe copyrights, trademark rights, industrial property rights, personality rights and other rights of third parties,
10.2.4 do not contain any personal data which, when collected, processed or, in particular, transmitted, or used, could constitute a violation of data protection provisions,
10.2.5 do not violate applicable law for any other reasons.
10.3 The customer shall indemnify OneVision comprehensively, and without limitation of the amount, against all third-party claims which are asserted on the basis of or in connection with an infringement of rights or property rights of third parties due to or in connection with the examination and revision by OneVision on behalf of the customer. The contractual parties shall notify each other immediately in writing if claims on the basis of infringements of rights or property rights are asserted against them. The defense against such claims is the exclusive responsibility of the customer.
10.4 The customer shall guarantee that the data files and documents which it transmits to OneVision are free from viruses, Trojan horses, computer worms, etc.
11 Liability
11.1 Subject to the provisions in the following Sections 11.2 to 11.8, OneVision shall be liable, irrespective of the legal basis, only for damage caused by intentional or grossly negligent behavior by OneVision, its legal representatives or executive employees.
11.2 For damage caused by intentional or grossly negligent behavior of other vicarious agents ("Erfüllungsgehilfe"), the liability is limited to the damage which could normally be expected to arise within the scope of the respective contract.
11.3 For damage caused by OneVision, its legal representatives, executive employees or other vicarious agents, which is neither intentional nor grossly negligent, OneVision is only liable insofar as this violates an obligation, the fulfillment of which is of particular importance to the success of the contractual purpose (cardinal obligation). In the event of an infringement of a cardinal obligation, the limitation of liability with respect to the damage to be compensated pursuant to Section 11.2 of this liability provision shall apply.
11.4 The liability for the loss of data will be limited to the typical restoration costs which would be incurred if the customer had carried out regular data back-ups with respect to the potential risks.
11.5 OneVision shall not be responsible for errors which occur in connection with the online transmission of data files.
11.6 One Vision does not provide a warranty nor assumes liability for the risk for procurement ("Beschaffungsrisiko") in an individual case, unless OneVision has expressly and in writing assumed such a warranty for procurement risk or liability for procurement risk which also has been expressly and in writing denoted a warranty or liability for the risk for procurement ("Beschaffungsrisiko").
11.7 Any liability on the part of OneVision for damages in relation to death, personal injury or injury of health, from warranty or liability for the risk of procurement as well as in relation to the German Product Liability Act remains unaffected.
11.8 As far as liability is excluded according to afore-mentioned Sections 11.1 through 11.7, such exclusion shall also apply to the benefit of employees of OneVision in case of claims pursued by the licensee against OneVision's employees directly.
12 Final Provisions
12.1 German law shall be exclusively applicable between the parties. The provisions of the United Nations Convention on the International Sale of Goods dated 11th April 1980 (CISG) are excluded.
12.2 Place of jurisdiction shall, at the choice of the plaintiff party, be Regensburg, Germany or the general place of jurisdiction of the defendant.
12.3 Should a provision of these General Business Terms and Conditions be or become entirely or partially invalid, this shall not affect the validity of the other provisions. The invalid provision shall be replaced by a provision which is legally possible and the contents of which come closest to the invalid provision and which best corresponds to the well-understood economic interest of the parties in the invalid provision.