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Terms and Conditions

Table of contents of the General Terms and Conditions

Software licence terms and conditions and general terms and conditions (GTC)

Preamble

Agreements regarding the licensed use of AvERP are concluded between the licensee and SYNERPY.
The agreement consists of the following parts:
A. Licence cover sheet
B. General Terms and Conditions
C. Arbitration agreement

Licence cover sheet

§ 1 Subject matter of the contract

AvERP consists of, among other things:
AvERP.exe, AvERPStart.exe, AvERP.FDB, AvERP_DEMO.FDB, AVERP_DMS.FDB, AvERPCONNECT.cfg, AvERPJobServer.exe, AvERPJobDruck.exe, AvERP_DMS.exe, AvERPDesign.exe, AvERPAdmin.exe and the respective source codes.

AvERP uses third-party components, for which separate license terms apply, including but not limited to:

Firebird database management system in the version currently in use. (see firebirdsql.org)

The licensee must inform themselves about these separate licenses and, if necessary, confirm them separately.

The software is provided free of charge by SYNERPY GmbH for download or on data carriers.

§ 2 Further agreements

  1. This program requires a license for the Microsoft Windows operating system, in the version you are using
  2. Services provided by SYNERPY to modify or supplement AvERP for application to the operational requirements of the licensee will be governed by a separate agreement.

This contract becomes legally binding upon installation of AvERP or upon starting AvERP.

General terms and conditions SYNERPY GmbH

§ 1 Commencement of contract

  1. The contract is concluded at the time of AvERP installation. These terms and conditions apply exclusively.
  2. Download versions remain the intellectual property of SYNERPY. If no contract is concluded, they must be deleted or destroyed.

§ 2 Subject matter of the contract

  1. The subject of the contract is the use of AvERP computer software installed on the licensee’s device.
  2. SYNERPY grants the licensee a non-exclusive, non-transferable license to use the software in accordance with the specifications on the cover sheet.
  3. Users of the source code are required to register with SYNERPY, providing truthful and complete personal or company information. Registration data must be updated immediately upon any changes.
  4. Any warranty of specific features requires explicit written confirmation; otherwise, a description of features serves only to identify the delivered software. The licensee is responsible for verifying that the selection and specifications meet their requirements.
  5. SYNERPY points out that, according to the current state of technology, it is not possible to create computer programs that function flawlessly in all applications or on all devices. Therefore, the subject of the contract is only that the software is fundamentally usable in accordance with the program description and user manual.
  6. No warranty is given. The user is responsible for ensuring that the software meets their requirements.

§ 3 Scope of use

  1. The licensee is authorized to modify uncompiled versions of AvERP. Copyright notices must be retained on all modifications and copies of the software. Modified software, whether compiled or uncompiled, may only be distributed to third parties via SYNERPY.
  2. He is also entitled to forward modified versions to SYNERPY so that, if SYNERPY determines their suitability, they can be incorporated into the main AvERP version.
  3. The licensee is prohibited from selling, renting, or distributing AvERP or any part thereof, whether free of charge or in any other way. Distribution is exclusively handled by SYNERPY GmbH.
  4. He is still prohibited from providing commercial or paid services to AvERP and from using AvERP or SYNERPY trademarks or domain names.
  5. Services and work related to AvERP may only be provided by SYNERPY GmbH and its licensed sales partners. The licensee agrees not to have any services or work related to AvERP performed by companies not licensed to do so by SYNERPY GmbH. This includes, but is not limited to, consulting, documentation, configuration, training, support, programming, installation and data import, as well as other implementation and post-implementation services.

§ 4 Third-party licenses

  1. AvERP requires third-party licenses for operating systems, e.g., the Microsoft Windows operating system.
  2. SYNERPY is entitled at any time to change the operating system on which AvERP is based.
  3. Operating system manufacturers regularly release new versions. AvERP runs exclusively on operating systems and versions approved by Synerpy.
  4. The licensee is obligated at all times to upgrade, supplement or replace their IT equipment and to provide the required version of the operating system, otherwise the operability and functionality of AvERP cannot be guaranteed.

§ 5 Vertragsdauer

  1. The contract grants the licensee a right of use that is unlimited in time.
  2. Without prejudice to any other rights, SYNERPY is entitled to terminate this agreement in writing without notice if the licensee breaches any provision of this agreement. In the event of termination, the licensee is obligated to surrender or destroy all copies of the software and all its components.

§ 6 Notice of defects

  1. The licensee is obligated to check AvERP for completeness and defects. If the licensee is not satisfied with the software’s functionality or if it does not meet the requirements, the software must not be used.
  2. No warranty is given. The licensee is responsible for testing the software’s functionality to ensure it meets their specific needs. All software functions are provided as they are. Any other documentation serves only as a general overview. Warranty claims, should any doubt arise, expire within 6 months of the transfer of risk, unless the statutory warranty period applies.

§ 7 Liability

  1. SYNERPY is liable for damages caused by its own negligence only in cases of intent. Liability for slight negligence is excluded. This also applies if the licensee fails to fulfill its obligation to back up its data before each installation on external storage media.
  2. Liability for lost profits, lost savings, indirect damages and consequential damages is excluded.

§ 8 Compensation for damages

In the event of a breach of contractual obligations by the licensee, a contractual penalty of €15,000.00 is forfeited for each individual breach, without prejudice to any further claims for damages, unless the licensor proves a higher damage or the licensee proves a lower damage.

§ 9 Withdrawal of rights of use and/or editing

The licensee may purchase goods, services, and licenses from SYNERPY GmbH. If the licensee fails to pay invoices within the payment period, the licensee’s rights to use and/or modify the software will be automatically and completely revoked. The software may therefore no longer be used from the date of default. This also applies until a final legal clarification is reached regarding the legitimacy of the invoice.

§ 10 Arbitration Tribunal

Any disputes arising between the contracting parties under this contract shall be decided by an arbitration tribunal in accordance with the arbitration agreement attached to this contract, to the exclusion of recourse to the ordinary courts.

§ 11 Final Provisions

  1. This contract governs all rights and obligations of the contracting parties. Amendments are only valid if made in writing, with reference to this contract, and signed by both parties.
  2. Should individual provisions of this contract be or become invalid, or should a gap be found in this contract, or should the software subject to this contract prove to be unprotectable, the validity of the remaining provisions shall not be affected. In place of the invalid contractual provision or to fill any gaps, a suitable provision shall be substituted which, to the extent possible, most closely approximates what the contracting parties would have intended had they considered this point.

This contract shall become legally effective upon installation.

Arbitration agreement

§ 1 Jurisdiction of the arbitral tribunal

  1. All disputes arising in connection with this contract or its validity shall be settled by arbitration to the exclusion of recourse to the ordinary courts. This also applies to disputes concerning the effectiveness, performance, and termination of the contractual relationship, individual contractual provisions, and any amendments.
  2. Arbitration may only be sought if an amicable solution to a disputed interpretation of the contract between the parties could not be reached within 6 weeks of written notification of the intended arbitration.

§ 2 Composition and invocation of the arbitral tribunal

  1. The arbitration panel consists of three arbitrators: two associate arbitrators and a chairperson.
  2. Each party appoints one associate arbitrator. The two appointed arbitrators then select a presiding arbitrator who must be qualified to hold judicial office according to the regulations of the Federal Republic of Germany.
  3. The party wishing to invoke arbitration must notify the respondent party of this by registered letter, stating the subject matter and grounds of the claim and a specific request, while simultaneously naming (name, address) an arbitrator, and requesting the respondent to nominate an arbitrator within three weeks of receipt of the letter of request.
  4. If the defendant party fails to nominate an arbitrator willing to accept the office within the time limit pursuant to paragraph 3, or if the two appointed arbitrators fail to appoint the chairperson within three weeks of the nomination of the second arbitrator, the associate arbitrator or the chairperson will be appointed by the President of the Chamber of Industry and Commerce in Bayreuth upon application by a party.
  5. Several claimants or several defendants bringing an action before an arbitral tribunal are each considered a single party. Several claimants or several defendants may only jointly nominate an arbitrator. The nomination must be communicated to all persons involved on the opposing side.
  6. If several plaintiffs, who can only assert their rights jointly, cannot agree on the person of an arbitrator within a reasonable period, each plaintiff is entitled to request the President of the Chamber of Industry and Commerce in Bayreuth to appoint a joint arbitrator for the plaintiffs.
  7. The application pursuant to paragraph 4 to the President of the Chamber of Industry and Commerce in Bayreuth can be submitted individually by each plaintiff or each defendant.

§ 3 Removal of an Arbitrator

  1. If an arbitrator dies, is otherwise unable to serve, or refuses to accept or perform the duties of the arbitrator, the party originally entitled to appoint the arbitrator must appoint a new arbitrator, or the two associate arbitrators must appoint a new chairperson, within three weeks of being requested to do so by the other party. Section 2, paragraphs 3 to 7, apply accordingly.
  2. Unless mandatory legal provisions dictate otherwise, the arbitral tribunal, in its new composition, shall decide at its discretion whether and to what extent the previous proceedings should be repeated in whole or in part. In any case, the parties must be given another opportunity to comment.

§ 4 Procedure

  1. The arbitral tribunal shall meet in Bayreuth, Germany, unless the three arbitrators or the parties unanimously agree on a different meeting place.
  2. The parties shall be heard orally before the arbitral tribunal unless both parties waive their right to an oral hearing.
  3. Furthermore, the provisions of Book 10 of the Code of Civil Procedure shall apply to the arbitration proceedings.
  4. The arbitral tribunal also decides on the costs of the arbitration proceedings.
  5. There is no right of appeal against the decision of the arbitration tribunal.

This contract becomes legally binding upon installation of AvERP or upon starting AvERP.