Common use of Rights in case of defects Clause in Contracts

Rights in case of defects. (1) The Software provided by PTW shall be substantially in accordance with the product description. Rights in case of defects shall be excluded in the case of minor or immaterial deviations from the agreed or assumed characteristics or in the case of just slight impairment of use. Product descriptions shall not be deemed guaranteed unless separately agreed in writing. In respect of updates, upgrades and the delivery of new versions, Licensee’s rights in case of defects shall be limited to the new features of the update, upgrade or new version compared to the previous version release. (2) If Licensee demands replacement because of a defect, PTW has the right to choose between the improvement, replacement delivery or replacement of services. If the defect is not cured within a first time limit and Licensee has set PTW a reasonable second time limit without success, then Licensee may, subject to the statutory prerequisites, at its option withdraw from this Agreement or reduce the price and claim damages or reimbursement of costs. (3) The remedying of the defect may also take place through the delivery or installation of a new program version or a work-around. If the defect does not or not substantially impair the functionality, then PTW is entitled, to the exclusion of further rights in case of defects, to remedy the defect by delivering a new version or an update as part of its version. (4) The Licensee is obliged to take over a new software version if the contractual scope of functions is maintained. The Licensee´s rights according to § 439 Bürgerliches Gesetzbuch (German Civil Code) remain unaffected. (5) Defects must be notified in writing with a comprehensible description of the error symptoms, as far as possible evidenced by written recordings, hard copies or other documents demonstrating the defects. The notification of the defect should enable the reproduction of the error. This shall not affect the statutory obligation of Licensee to inspect and notify defects. (6) The Licensee’s rights in case of defects are limited to 12 months and the period shall begin on the date of delivery of the first copies of the Software including Documentation. In respect of the delivery of updates, upgrades and new versions, the period for such deliverables shall in each case begin on the date of delivery. The limitation of claims for damages of the Licensee shall be determined with the provisions of § 8. (7) Licensee shall inspect the delivered items without delay for any transport damage and other apparent defects preserve the appropriate evidence and assign any claims for recourse to PTW while handing over the documents. (8) Any claims for damages are subject to the limitations set forth under § 8. (9) If the defect is caused by the defective products of a supplier and the supplier does not act as an assistant in performance of PTW, rather PTW is merely passing on a third party product to Licensee, then Licensee’s rights in case of defects shall at first hand be limited to the assignment of PTW’s rights in case of defects against its supplier. This shall not apply, when the defect is caused by improper handling of the supplier’s product for which PTW is responsible. If Licensee is unable to assert his rights in case of defects against the supplier out of court, PTW’s subsidiary liability for Licensee’s rights in case of defects shall remain unaffected. (10) Amendments or additions to the services or items delivered which Licensee carries out itself or through third parties, shall cause Licensee’s rights in case of defects to be cancelled, unless Licensee proves that the amendment or addition did not cause the defect. PTW shall also not be responsible for defects, which are caused by improper use or improper operation or the use of unsuitable means of operation by Licensee. (11) PTW may refuse to remedy defects or deliver replacements, until Licensee has paid the agreed fees to PTW, less an amount which corresponds to the economic value of the defect.

Rights in case of defects. (1) The Software provided by PTW shall be substantially in accordance with the product description. Rights in case of defects shall be excluded in the case of minor or immaterial deviations from the agreed or assumed characteristics or in the case of just slight impairment of use. Product descriptions shall not be deemed guaranteed unless separately agreed in writing. In respect of updates, upgrades and the delivery of new versions, Licensee’s rights in case of defects shall be limited to the new features of the update, upgrade or new version compared to the previous version release. (2) If Licensee demands replacement because of a defect, PTW has the right to choose between the improvement, replacement delivery or replacement of services. If the defect is not cured within a first time limit and Licensee has set PTW a reasonable second time limit without success, then Licensee may, subject to the statutory prerequisites, at its option withdraw from this Agreement or reduce the price and claim damages or reimbursement of costs. (3) The remedying of the defect may also take place through the delivery or installation of a new program version or a work-around. If the defect does not or not substantially impair the functionality, then PTW is entitled, to the exclusion of further rights in case of defects, to remedy the defect by delivering a new version or an update as part of its version. (4) The Licensee is obliged to take over a new software version if the contractual scope of functions is maintained. The Licensee´s Licensee’s rights according to § 439 Bürgerliches Gesetzbuch (German Civil Code) remain unaffected. (5) Defects must be notified in writing with a comprehensible description of the error symptoms, as far as possible evidenced by written recordings, hard copies or other documents demonstrating the defects. The notification of the defect should enable the reproduction of the error. This shall not affect the statutory obligation of Licensee to inspect and notify defects. (6) The Licensee’s rights in case of defects are limited to 12 months and the period shall begin on the date of delivery of the first copies of the Software including Documentation. In respect of the delivery of updates, upgrades and new versions, the period for such deliverables shall in each case begin on the date of delivery. The limitation of claims for damages of the Licensee shall be determined with the provisions of § 8. (7) Licensee shall inspect the delivered items without delay for any transport damage and other apparent defects preserve the appropriate evidence and assign any claims for recourse to PTW while handing over the documents. (8) Any claims for damages are subject to the limitations set forth under § 8. (9) If the defect is caused by the defective products of a supplier and the supplier does not act as an assistant in performance of PTW, rather PTW is merely passing on a third party Third Party product to Licensee, then Licensee’s rights in case of defects shall at first hand be limited to the assignment of PTW’s rights in case of defects against its supplier. This shall not apply, when the defect is caused by improper handling of the supplier’s product for which PTW is responsible. If Licensee is unable to assert his rights in case of defects against the supplier out of court, PTW’s subsidiary liability for Licensee’s rights in case of defects shall remain unaffected. (10) Amendments or additions to the services or items delivered which Licensee carries out itself or through third parties, shall cause Licensee’s rights in case of defects to be cancelled, unless Licensee proves that the amendment or addition did not cause the defect. PTW shall also not be responsible for defects, which are caused by improper use or improper operation or the use of unsuitable means of operation by Licensee. (11) PTW may refuse to remedy defects or deliver replacements, until Licensee has paid the agreed fees to PTW, less an amount which corresponds to the economic value of the defect.