Chemstations Europe GmbH, hereinafter referred to as “Chemstations”, distributes the CHEMCAD software developed by Chemstations Inc., Houston (TX), U.S.A., along with additional products, hereinafter referred to as “CHEMCAD software”. The function of this software is to simulate chemical and chemical engineering processes.
By installing CHEMCAD software, the customer accepts the terms and conditions of licensing of Chemstations, Inc., Houston (TX) for using CHEMCAD software.
The customer shall acquire the right of use in the CHEMCAD software over an agreed period of time. The details are regulated in the offer. By placing the order, the customer receives the right to use the CHEMCAD software for the intended purpose, i.e. for process simulation. Should the customer wish to use the CHEMCAD software or components thereof in another piece of software, the latter will require Chemstations’ prior consent. If the pure substance data contained in the CHEMCAD software originates from a database, it may not be used in any other software.
The customer may install as many instances of the CHEMCAD software as required for their own use. Use is licensed by means of a licence granted by Chemstations. The details are regulated contractually.
The customer shall be entitled to maintenance, updating and support (MUS) during the currency of the agreement.
Maintenance: The troubleshooting shall begin immediately once a fault has been reported. Maintenance releases will be published by Chemstations Inc., Houston (TX), U.S.A. at regular intervals.
Update: The extensive libraries of chemical data, formulae and methods are constantly compared with measured data and industry standards. Therefore, new CHEMCAD functions (“updates”) are implemented on an ongoing basis.
Support: Chemstations Europe GmbH or partners of Chemstations or Chemstations Inc., Houston (TX), USA who act legally independently will provide support in using the CHEMCAD software. Support does not include the knowledge imparted in the basic seminar. Support is only provided for higher education institutions to individuals who have attended the seminar within the past three years. The customer shall be entitled to send their own simulations to Chemstations for review. The latter are treated confidentially in all cases. Chemstations does not assume any liability in this regard.
Chemstations offers seminars for learning how to use the software.
Chemstations has a dedicated website for informational purposes. No guarantee is assumed that the information available there is accurate.
Should the customer lose the licence granted by Chemstations, Chemstations shall not be obliged to provide a replacement free of charge.
Once the agreement has been terminated, the customer shall be obliged to return the dongle to Chemstations by recorded delivery, at its own expense. Should the dongle be lost, and should the loss be the customer’s fault, the latter shall be obliged to pay compensation for damage for it.
No claims for defects exist for only slight deviation from the agreed level of quality of the software or in a situation in which its usability is only slightly impaired.
The fee shall be due in full upon delivery or invoicing, without any deduction, within 30 days. Without the necessity of a reminder by Chemstations GmbH, the customer shall be in arrears if it has not paid 30 days after the due date. Should any defects exist, the customer shall only be entitled to retain payment if the amount retained is in proportion to the defects. The customer shall not be entitled to assert any claims or rights based on defects if the customer has failed to make any due payments and the amount due (including any payments made) is in proportion to the value of the delivery or works that are subject to defects. In the case of multiple-year leasing and annual invoicing, the lease rental is to be paid prior to commencement of the following year of leasing (following invoicing by Chemstations). Once the amount invoiced has been received, the licence will be extended for a further year.
Considerable payment arrears on the part of the customer shall entitle Chemstations to terminate the agreement.
If payment is delayed, Chemstations shall be entitled to charge arrears interest at a rate of 10 percentage points above the base rate of the German Bundesbank (cf. Sec. 247 German Civil Code (BGB)). The customer shall be permitted to prove that no damage or lesser damage has been incurred to Chemstations. Chemstations shall be permitted to provide evidence that greater damage has been incurred.
Chemstations shall be liable in cases of intent or gross negligence on the part of a representative or vicarious agent, in line with the statutory provisions. Otherwise, Chemstations shall only be liable on account of injury to life, the body or the health or culpable infringement of material contractual obligations. Should none of the other exceptional cases detailed in sentence 1 or 2 of this agreement simultaneously apply, the claim for damages for infringement of material contractual obligations shall, nonetheless, be limited to the contractually typical foreseeable losses. Should none of the other exceptional cases set out in sentence 1 or 2 of this agreement simultaneously apply, the liability on the part of Chemstations Europe GmbH shall also be limited, in cases of gross negligence, to the contractually typical foreseeable losses.
The provisions of the foregoing paragraph shall apply to all claims for compensation for damage, and in fact regardless of the legal grounds, in particular based on defects, the infringement of obligations arising from the contractual relationship or tort. They shall also apply to the claim for compensation for futile expenses.
Chemstations shall only be liable in the event of a delay in the services being provided in cases of intent or gross negligence on the part of a representative or vicarious agent. The liability shall be governed by the statutory provisions. The liability shall, however, be limited, in cases of gross negligence, to the contractually typical foreseeable damage. The latter shall not apply in the case of liability arising from injury to life, the body or the health.
The above provisions do not involve a change in the burden of proof to the detriment of the customer.
These general terms and conditions of delivery and service shall apply exclusively. Any general terms and conditions of business of the customer shall only apply if Chemstations has expressly agreed to them in writing. Any verbal agreements entered into shall be invalid.
In regard to any disputes arising from the contractual relationship, the sole place of jurisdiction shall be the registered office of Chemstations Europe GmbH, 10117 Berlin, Germany.
The parties’ legal relations shall be governed by German law.
Should one of the foregoing provisions be legally invalid, in whole or in part, the validity of the remaining provisions shall not be affected thereby.