DEWESOFT’S TERMS AND CONDITIONS

Dewesoft General Terms and Conditions for the Sale of Software Licenses

Article 1 – General / Scope

1.1. These General Terms and Conditions for the Sale of Software Licenses (hereinafter referred to as “GTC”) shall apply to all business transactions between Dewesoft d.o.o., izdelava programske opreme in proizvodnja elektronskih komponent, (foreign) company or subsidiary of Dewesoft Group (hereinafter referred to as: “DWS”) and the Buyer regarding the sale of software licenses, manufactured by or for DWS. This GTC shall apply exclusively and even if these terms are not expressly referenced in subsequently concluded contracts.

1.2. Any terms of the Buyer, which oppose or supplement these GTC shall not become part of the contract unless DWS has given express consent to their validity in writing.

1.3. This GTC shall also apply if DWS completes the delivery without attaching these GTC or does not attach these GTC to future transactions in specific cases.

1.4. Additional or deviating agreements regarding these GTC concluded between DWS and the Buyer for the implementation of a contract must be made in writing. This also applies to the cancellation of the written form requirement. Rights to which DWS is entitled beyond this GTC pursuant to statutory provisions shall not be affected.

Article 2 – Offer and conclusion of a contract

2.1. DWS’ invitation for offers and prices are indicated in the DWS’ Web Shop, are subject to change and are not binding unless they are expressly indicated as binding. DWS has the exclusive right to modify the software and the prices by sending an advance written notice to the Buyer 30 days before the implementation of the changes.

2.2. The Buyer places its orders by placing them in the DWS’ Web Shop.

2.3. Orders by the Buyer constitute binding offers for the conclusion of a contract for the Buyer, whereas the DWS is not bound with such Buyer’s orders.

2.4. DWS’ written confirmation of the order or, in case of immediate implementation of the order, the delivery of the ordered software at the indicated final invoice price shall be authoritative for the contents and establishment of the contract. Where the Buyer provides justified objections to the contents of the order confirmation or the delivered software, he must immediately forward such objections. Otherwise, the contract shall be established subject to and pursuant to the contents of the order confirmation or delivery.

2.5. Any contracts, amendments, supplements, and modifications of the contracts are only valid if mutually agreed upon in writing. Any subsequent request for modification requires DWS’ specific written confirmation and entitles DWS to amend the price and extend the agreed time limits, whereas DWS is not obliged to make such modifications, changes or improvements.

Article 3 – Description of products and services

3.1. Where the contract refers to software that is subject to further technical development, DWS is entitled to make deliveries in accordance with the most recent software data sheet, whereas the DWS is not obliged to provide any further changes, improvements or updates of the delivered software.

3.2. Technical and design deviations from descriptions and information in brochures, offers, and written documents, as well as changes to performance, design, and material in line with technical progress shall remain the exclusive right of DWS; the Buyer may not derive any rights in this regard. Information regarding the condition of DWS’ software (technical data, user interface, etc.) is merely approximate and is not indicative of a guaranteed configuration unless DWS expressly guarantees such in writing.

Article 4 – Prices and price adjustments

4.1. The prices agreed to in writing or listed in DWS’ order confirmation shall be authoritative. All prices are based on the general price list of DWS, which is in force on the day of entering into the contract. In the absence of a different agreement, prices are quoted Ex Works (EXW) in accordance with Incoterms 2010 and include standard packaging, if applicable. Costs for transport, special packaging, postage, freight, insurance, customs duties and similar (if applicable) are not included and shall always be the responsibility of the Buyer. Statutory VAT and other statutory taxes for Slovenia and abroad are listed separately on the invoice at the amounts that apply on the date the invoice is issued.

4.2. In the event that non–foreseeable costs increase in relation to total costs between the time the contract is concluded and the order is implemented, and which are not DWS’ responsibility, including, but not limited to cost increases due to changes to legislation, changes in manufacturing costs or wages (e.g. tariff agreements), commodity prices, technical standards and regulations or changes to material prices, DWS is entitled to make reasonable changes to the prices in line with the changed circumstances.

Article 5 – Payment terms

5.1. Payments will be made according to contractual provisions or payment conditions defined in the issued invoice or pro–forma invoice. The invoice shall be generated at the time when the Buyer receives the license keys for the software. All payments shall be made in Euro (EUR) unless expressly agreed otherwise.

5.2. In the absence of an express differing agreement (e.g. payment conditions on the invoice or pro–forma invoice), the Buyer is required to pay the issued invoice within 30 days, following the date of the issued invoice.

5.3. In case of late payment, the amount recoverable by DWS will automatically and without prior notice be increased by statutory default interests under Slovenian law. The Buyer is obliged to pay the costs of reminders. DWS shall have the right to claim reasonable damages for all relevant recovering fees incurred due to late payment (including legal fees). The day of the payment is the day when the payment arrives at DWS’ bank account.

5.4. Any disagreements regarding invoices or claims (e.g. issues regarding credit notes or other administrative issues) do not allow the Buyer to postpone the ultimate payment date for the accepted part of the invoice.

5.5. Drafts and cheques shall only be accepted on the basis of an express written agreement and only as an undertaking to pay. Discount charges and other costs for drafts and cheques are the Buyer's responsibility. DWS’ rights from Article 9 will remain until such time as all draft and cheque receivables have been paid.

5.6. DWS is entitled to offset the Buyer's payments against the Buyer's oldest debts. Where costs and interest have already accrued, DWS is also entitled to initially apply for the payment against such costs, then against the interest and finally against the amount of the principal.

5.7. Offsets of counterclaims of the Buyer have to be mutually agreed on in writing.

Article 6 – Delivery

6.1. DWS shall deliver the ordered software license immediately upon conclusion of the contract in accordance with these GTC.

6.2. The delivery of the software shall be deemed to have been fulfilled as soon as the DWS provides a license key to the Buyer and issue an invoice. When the invoice is fully paid by the Buyer, the license key can be activated (registered) within the software using an offline registration procedure and delivered to the customer as stipulated in Article 9.1. herein.

6.3. DWS reserves the right, without compensation to the Buyer and without prior notification of the Buyer, to suspend or cancel the delivery of the order and/or to cancel the contract in case the Buyers owes any outstanding amount that is due pursuant to any invoice, issued by DWS to the Buyer.

6.4. DWS shall not be liable for the impossibility of deliveries or delivery delays caused by Force Majeure (any event that is outside of DWS’ control, and which causes DWS’ full or partial failure to comply with his obligation) or other events that were not foreseeable at the time the contract was concluded and cannot be controlled by DWS (e.g. business disruptions of all kinds, difficulties in obtaining materials or energy, transport delays, strikes, legal lockouts, lack of labour, energy or raw materials, official measures or missing, incorrect or non–timely deliveries from the Supplier's upstream suppliers). Insofar as such events make delivery or performance very difficult or impossible for DWS, and the hindrance is not merely temporary, DWS is entitled to withdraw from the contractor to suspend the performance of the contract. In the case of temporary hindrances, times for deliveries and performance will be extended or delivery or performance dates will be postponed by the time of the hindrance, plus a start-up period. Events of Force Majeure or other events that were not foreseeable at the time the contract was concluded shall not give rise to any compensation or penalty from DWS.

Article 7 – Place of fulfilment and transfer of risk

7.1. In the absence of a different agreement, the delivery of products will be made Ex Works (EXW) DWS main office, Gabrsko 11a, 1420 Trbovlje, Slovenia, according to the Incoterms 2010. The delivery of services will be made according to the contract.

7.2. The risk of incidental loss and deterioration of the software shall be transferred to the Buyer, as soon as the license key has been sent to the Buyer.

7.3. Where the delivery is delayed due to circumstances that are the Buyer's responsibility, the risk of incidental loss and deterioration of the software shall be transferred to the Buyer from the day DWS is ready to deliver the software.

Article 8 – Retention of title

8.1. The delivered license shall remain the exclusive property of DWS and the Buyer is not entitled to register and use the software, nor procure the third parties to use software until such time as all claims to which DWS is entitled against the Buyer as a result of the business relationship have been paid in full (invoices, interest for late payment and any other payments including cheques and draft claims). The Buyer shall obtain the license for the use of software upon payment of the full and entire amounts due from the previous sentence.

8.2. The Buyer is required to treat the software which is subject to retention of title with professional care for the duration of the retention period.

8.3. The Buyer is not entitled to reproduce, reverse engineer, decompile or disassembly of the software and/or any of its parts. This rule applies to the time prior and also after the obtainment of the software license.

8.4. The Buyer is not entitled to pledge, transfer as security or take other measures that would endanger DWS’ ownership with regard to the products that are subject to retention of title.

8.5. The Buyer hereby assigns the claims from the resale of the products, complete with all ancillary rights, to DWS –in proportion to the corresponding co-ownership share if DWS also owns a portion of the delivered products subject to retention of title – and regardless of whether the products subject to retention of title are sold without or after further processing.

8.6. In the event the Buyer is in payment default, bankrupt or otherwise insolvent or in the event of a winding up of the Buyer, DWS shall be entitled to withdraw from the contract, cancel all pending orders and to claim damages, without prejudice to DWS’ other rights. The Buyer must permit DWS or a third party designated by DWS immediate access to the software subject to retention of title, and hand it over.

8.7. The Buyer will inform DWS without delay regarding any obligation to register retention of title in an official register or any other formal obligation necessary to be valid in the country where the software will be delivered. The Buyer will at his own costs fully cooperate, assist and give all consents to DWS regarding any formal obligation necessary to achieve valid retention of title. In cases where software is delivered to different legal jurisdictions, in which the provision regarding retention of title pursuant to these GTC does not have the same securitizing effect as in the Republic of Slovenia, the Buyer shall grant DWS a corresponding lien at DWS’ request.

8.8. The Buyer should keep the name of the software and respect all DWS trademarks associated with the software and clearly indicate the trademarks as the property of DWS in all documentation, including but not limited to a web page, catalogues, brochures, advertisements and other communication to third parties in any form whatsoever.

Article 9 – Claims for defects and limitation of liability

9.1. The information contained in the current version of the software data sheet and offers define the specifications and properties of the delivered software. The description of the software and potential explanations in this regard form a part of the agreements on the approximate factual nature and not of guarantees or promises unless they are expressly described otherwise. DWS does not assume any guarantee for the condition unless expressly agreed to in writing.

9.2. DWS licenses the use software “as is” and does not assume or undertake any liability for factual or legal defects.

9.3. The liability exclusions and restrictions listed in this Article shall also apply in the same scope in favour of DWS’ corporate bodies, statutory representatives, employees, and agents.

Article 10 – Warranties

10.1. DWS does not provide any warranties for the delivered software.

10.2. DWS does not provide that the software is fit for purpose and is not liable for any damages, arising from or related to the use of the software by the Buyer or third parties.

Article 11 – Confidential information and business secret

11.1. Information exchanged between DWS and the Buyer including, but not limited to: research, technology, software developments, marketing plans, market conditions, software, business strategies, pricing and similar, constitute confidential information and the business secret of the party disclosing such information. The purpose of such exchange is to allow the parties to meet their obligations and responsibilities. The party receiving any confidential information, its employees and or any other related person will not, except with the prior written consent of the disclosing party, use, divulge, disclose or communicate this data and information to any person, firm, corporation or entity, in any way. The parties will protect confidential information and business secrets in accordance with the applicable laws and best business practices.

11.2. The obligations under this Article will survive the termination of the contract between DWS and the Buyer for any cause.

Article 12 – Intellectual property

12.1. DWS is the exclusive holder of the intellectual property rights referring to its software. The Buyer of the products and services does not acquire any intellectual property rights, apart from the use of the purchased licenses of the software in the Buyer end-products, intended for sale to end customers. In the event that the Buyer is not the end customer, but buys the software for resale, the Buyers is obliged to achieve that the end buyers accept and assume obligations under the End–User License Agreement for Dewesoft Software (hereinafter referred to as “EULA”), which shall be delivered as a part of the software. Upon request of DWS, the Buyer shall provide evidence that every particular end customer has provided acceptance of the EULA.

12.2. All rights arising from samples, models, prototypes, sketches, designs, drawings, specifications, contract documents and other similar documents (hereinafter referred to as: “documents”) shared by DWS, are subject to the title of DWS, are part of the intellectual property rights of DWS and are wholly owned by DWS. The Buyer is not entitled to present such documents and items to any third party without the prior consent of DWS and will upon request return them to DWS without any further delay.

Article 13 – Usage and expiration conditions

There are two options when purchasing Dewesoft software: time-unlimited license and time-limited license.

13.1. Evaluation license: User might ask for a time-limited free of charge evaluation to check the functionality of the software; the evaluation license should  be used only for the purpose of software evaluation, no commercial use is allowed;

13.2. Time unlimited license: Dewesoft instruments come with a time-unlimited license version of Dewesoft software (PROF level). Additionally, the customer might purchase time-unlimited software options and/or bundles. The customer is allowed to use the full software functionality without any time limit in all commercial purposes;

13.3. Time-limited license: Customer might choose to purchase software options and bundles with time expiration. The customer can use all functionality before the expiration time. After the expiration, the customer might continue to use all time unlimited purchased licenses but is unable to use additional options and bundles which expired.

13.4. License for analysis and offline setups: User might use software package of Dewesoft free of charge for data analysis and preparing of offline setups;

13.5. X Termination. In case of a time-limited license, the EULA terminates automatically upon the expiration of the license.

Article 14 – Data protection

DWS is entitled to process and store the Buyer's data to the extent that this is required to implement the contracts, and as long as DWS is obliged to store such data based on statutory provisions.

Article 15 – Exports

15.1. The Buyer may not export copies of software that are subject to embargo provisions and administrative limitations.

15.2. It is the Buyer's responsibility to obtain information regarding the relevant export and/or import provisions or restrictions and to obtain the corresponding approvals where necessary.

15.3. Notwithstanding anything to the contrary in these GTC or any special agreements, DWS shall in no event be obliged to deliver any software or perform any of its obligations under these GTC or special agreements until the required approvals relating to the export regulations have been obtained by the Buyer. Each party agrees to provide the other party with all such information and assistance as may reasonably be required by the other party in connection with securing such authorizations or licenses and to take timely action to obtain all required support documents. DWS shall be entitled to terminate any agreed purchase order or any part thereof if the respective necessary approval(s) according to the applicable export regulations cannot be obtained within a reasonable time period.

Article 16 – Final provisions

16.1. The transfer of the Buyer's rights and obligations to third parties requires DWS’ written consent, whereas it shall be deemed as DWS has provided consent to upload one copy of the software per purchased license for one end–product of the Buyer to be sold to and used by the end customer of the Buyer end–product.

16.2. DWS’ domicile shall be the place of jurisdiction for all disputes from the business relationship between DWS and the Buyer. DWS is also entitled to file a suit at its domicile or the domicile of its local (foreign) subsidiaries and any other permissible place of jurisdiction.

16.3. With regard to the legal relationship between DWS and the Buyer, the laws of the Republic of Slovenia shall apply, unless expressly agreed differently in writing. The rules of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

16.4. In the event, a provision in these GTC is found to be partially or completely invalid, void or unenforceable under any particular national or international legislation, or in the event of a legal loophole, it will not affect the validity of the remaining provisions. The invalid, void or unenforceable provision will be replaced with a valid or feasible provision that most closely corresponds with the purpose of the invalid or infeasible provision.

16.5. DWS reserves the right to modify the GTC without prior notification. The modified GTC will be published in Web Shop.

Last revised on 1 March 2019