General Terms and Conditions

KCE-ThermoFluidProperties UG (limited liability) & Co. KG

 

(hereafter “KCE”)

 

1.         Scope and Object of Agreement

1.1       These terms and conditions shall only apply to companies exercising their independent professional or commercial activities and to legal entities under public law. Any deviating terms and conditions of the Licensees shall only apply if expressly accepted by KCE in writing or in text form.

1.2       Services from KCE

             KCE offers property calculation software, associated services and state diagrams as PDF and print versions for purchase.

             The software and the PDF versions of the diagrams are made available to the Licensee in ZIP format for download or as email attachments and can be stored by the Licensee. The print versions of the diagrams will be sent by post.

             In order to use the digital content and in particular to be able to read and store the file formats, the Licensee must have a standard internet connection and the relevant user programs for running the property calculation software and the state diagrams.

             The software can be ordered by PDF or email. An order form provided is used for ordering the state diagrams.

             By signing and submitting an order form, the contracting party (hereinafter referred to as “Licensee”) submits to KCE an offer to conclude a software usage agreement for the license modules selected in the order form in accordance with these terms and conditions. KCE shall not be obliged to accept the offer.

             KCE’s offers are subject to change until the conclusion of the contract. Oral information or promises, brochures, internet pages and advertising statements of any kind, in particular illustrations, graphics, samples, quality and usage information, are subject to confirmation unless they are expressly designated as binding. They do not represent any warranty or guarantee promise. KCE reserves the right to correct any errors in calculation or printing. A contract is only concluded when KCE accepts the order.

             KCE accepts the offer by sending an order confirmation by email, post or fax to the Licensee.

             Upon receipt of the order confirmation by the Licensee, the contract is concluded in accordance with these terms and conditions.

1.3       KCE grants the Licensee the licenses selected in the written order or order form for the duration of the contract.

1.4       Software on data carriers and printed diagrams from KCE are delivered to the Licensee by post. The Licensee has to bear the usual shipping costs and will be clearly informed of this and the amount of shipping costs during the ordering process. KCE is entitled to make partial deliveries. Additional shipping costs and customs duties shall be borne by the Licenser.

             If desired by the Licensee, the software and diagram can be delivered in electronic form by download, email attachment, USB stick or CD-ROM.

1.5       In the course of the general further development and maintenance of the software, KCE may change, restrict or cancel individual functionalities and contents, provided that the legitimate interests of the Licensee are not unreasonably violated thereby.

2          Rights of use of the software and digital diagrams

2.1       The software and its contents are protected by copyright. KCE shall be exclusively entitled to the copyright and all the protection and exploitation rights derived therefrom, in particular from §§ 69 a ff. and 87 a ff. of the German copyright law, to the extent legally permissible. As far as information from generally accessible sources or components of third parties are integrated into the software, the rights of the third parties remain unaffected. KCE guarantees that the Licensee’s use of the software in accordance with this agreement shall not infringe any rights of any third party. 

2.2       Uses only permitted for the Licensee’s own purposes and in the cases permitted by copyright law. The Licensee may store the delivered software and diagrams on the end device used by the Licensee themselves. In particular, additional copies may not be made, in particular on end devices or media to which third parties have access.

2.3       The passing on of the software to third parties, except where they are employed by the Licensee, is inadmissible.

2.4       The software may only be accessed from an individual workstation for the purpose of an individual use (consultation of an interested party) of the contents retrievable via this. Addressing the software from a network or for other purposes or for unauthorised third parties is not permitted, nor is retrieving, printing, collecting, archiving and storing the contents retrievable via the software beyond the scope of individual use.

2.5       The Licensee must take appropriate measures to ensure that the restrictions on the right of use contained in sections 2.2 and 2.3 are also observed by the users registered by the Licensee in accordance with section 2.2.

2.6       In publications with reference to the property libraries these are to be quoted as follows:

             H.-J. Kretzschmar, M. Kunick, S. Herrmann:
Software for Calculating Thermodynamic and Transport Properties of Working Fluids.
KCE-ThermoFluidProperties, Dresden (2019), available at www.thermofluidprop.com.

2.7       KCE reserves the right to mark the supplied files with a technical identification mark with the name and email address of the Licensee. In addition, KCE reserves the right to mark files and individual contents by further measures which are not easily recognisable to the Licensee in order to protect them against misuse. Finally, KCE reserves the right to add to the files a technical protection measure to prevent any copyright or other infringing activity.

2.8       The right of use granted to the Licensee under this agreement shall cease upon termination of this agreement.

3          Term, notice of termination

3.1       The contract shall commence upon receipt of the order confirmation referred to in section 1.2 and shall be concluded for an indefinite period of time unless otherwise stipulated in the contract.

3.2       The right to terminate for good cause remains unaffected. Good cause shall exist in particular if a contracting party breaches essential obligations or repeatedly breaches non-essential obligations under the contract and fails to remedy the breach within a reasonable period of time even upon request by KCE.

3.3       Upon termination of the contract for good cause, KCE shall be entitled to block the software and diagrams already downloaded and to prohibit their further use.

3.4       Termination requires the written form to be effective.

4          Remuneration and terms of payment

4.1       Prices are those as found in the offer.

4.2       The prices given show the current legal value added tax, respectively. If the value added tax is not shown, the indicated price is inclusive of the legal value added tax.

4.3       Payment is due within ten days after conclusion of the software delivery contract as in Point 1.1 of these general terms and conditions. Delivery takes place after receipt of payment within ten days.

4.4       Payments are to be made to the following account:

             KCE-ThermoFluidProperties, IBAN DE32 8505 0300 0221 1581 70, BIC OSDDDE81XXX, Ostsächsische Sparkasse Dresden

4.5       The Licensee receives invoices for the ordered services in electronic form or, if desired, in paper form to the billing address specified by the Licensee.

4.6       Delivery of the software and diagrams shall be subject to extended retention of title if delivery were made without prior payment. The delivered goods shall remain the property of KCE until the purchase price has been paid in full.

5          Warranty

5.1       KCE guarantees, subject to the following provisions, that the software is free from defects of quality and title. A material defect shall be deemed to exist if the software does not have the contractual quality and its suitability for use in accordance with the contract is thereby cancelled or reduced. Statements and explanations about the software in promotional materials and on KCE’s website are intended solely as a description of its properties and are not as a guarantee or assurance of any feature. Statements on the subject matter of the performance only constitute guarantees or warranties in the legal sense if they are made in writing and are expressly and literally marked as “guarantee” or “assurance”.

5.2       If the services to be provided by KCE in accordance with this contract are defective, KCE shall, within a reasonable period and after receipt of the notice of defects, rectify or provide the services again.

5.3       If the defect-free performance fails despite subsequent improvement for reasons for which KCE is responsible, the Licensee may reduce the agreed remuneration by an appropriate amount.

5.4       KCE accepts no liability for the correctness and completeness of the contents of the software, in so far as KCE has exercised the care normally expected of a prudent businessman in selecting, preparing and maintaining the data. Claims are excluded unless they are based on intent or gross negligence.

5.5       KCE assumes no liability for the availability and functionality of the hardware and software components of third parties connected to the software.

5.6       The Licensee is obliged to examine the software immediately after delivery and to report and obvious defects in writing within a preclusive period of three weeks or, if the defects are not obvious, within three weeks of their discovery. In the event of a breach of the duty to notify, the software shall be deemed to have been approved with regard to the defects concerned. A warranty for defects reported late is excluded. The warranty is further excluded if the usability of the software is only insignificantly impaired by the existence of defects or deviations. The Licensee is aware that a complete absence of technical errors in software products can not be guaranteed due to their complexity.

6          Liability

6.1       The Licensee’s claims for damages shall be governed by these general terms and conditions irrespective of the legal nature of the claim.

6.2       KCE has unlimited liability:

  • in case of intent or gross negligence,
  • for injury to life, body or health,
  • in accordance with the provisions of the Product Liability Act and
  • to the extent of a guarantee assumed by KCE.

6.3       In the event of a slightly negligent breach of an obligation which is essential for achieving the purpose of the contract (primary obligation), KCE’s liability shall be limited in amount to the value of the subject matter of the contract. Main obligations are those obligations whose fulfilment makes the proper execution of the contract possible in the first place and whose fulfilment the Licensee regularly relies on and may rely on. 

6.4       KCE shall only be liable for data loss and malware (viruses, worms, trojans, etc.) if no appropriate data backup measures have been taken. Upon request KCE shall inform the Licensee of the specific data backup measures taken.

6.5       KCE shall not be liable in any further way. In particular, KCE shall not be liable, regardless of fault, for initial defects or for slight negligence, unless a primary obligation has been breached. Also excluded are defects which result from using the software in the area of the actual application in the machine area, since a special adaptation of the software by the user is not carried out by KCE.

6.6       The above limitations of liability shall also apply to the liability of the employees, representatives and organs of KCE.

7          Data protection and data processing

7.1       The parties undertake to observe the applicable data protection regulations in force in Germany and to obligate their employees employed in connection with the contract and its execution to data secrecy, in particular the Federal Data Protection Act (BDSG) and the Basic Data Protection Ordinance (DSGV).

             The parties undertake to take all the data protection and data security measures required in accordance with the applicable data protection regulations. KCE shall comply with the technical and organizational security measures required by law for the proper execution of the orders and shall provide evidence of such measures to the Licensee upon request. In accordance with BDSG and DSGV, the Licensee is informed that KCE stores the usage data in machine-readable form and processes it within the scope of the purpose of the contractual relationship. All data will be treated confidentially.

7.2       In so far as necessary for the performance of the contract, KCE may disclose personal data to third parties in accordance with the BDSG and DSGV.

7.3       KCE advises the Licensee that, according to the current state of the art technology, data protection can not be guaranteed one hundred percent for data transmission in open networks such as the internet.

8          General provisions

8.1       For legal disputes arising out of or in connection with this contract, German law shall apply exclusively to the exclusion of legal norms that refer to another legal system. The UN Agreement on International Trade in Goods shall not apply.

8.2       The place of performance and jurisdiction shall be the registered office of KCE.

8.3       Side agreements, amendments or supplements must be made in writing in order to be effective, as must the waiver of the written form requirement.

8.4       Should individual provisions of these general terms and conditions be or become invalid, this shall not affect the validity of the contract as a whole. In this case, the parties shall replace the invalid provision with a provision that comes as close as possible to the objective pursued by the invalid provision. The same applies in the case of gaps.