§ 1 Subject matter of the contract
(3) The PRODUCT serves as the interface between the forklift truck (hereafter referred to as “truck”) and the IT system of the customer, by which the truck receives the destination positions in the warehouse where the pallets are to be stored, retrieved or commissioned. In the standard application, the PRODUCT will be connected with the WLAN available at the customer site.
The PRODUCT offers several options for the connection with the IT system of the customer. It shall be clarified in the offer process for the PRODUCT, whether and, if so, which option can be used for the connection. The cooperation duties of the customer are set out in detail in § 3.
(4) STILL can separately offer the customer a possible customer-specific adaptation of the SOFTWARE beyond the configuration in order to facilitate the data exchange via the interface. This shall apply in connection with the ordering of the PRODUCT and its initial configuration and implementation as well as in connection with the potential need to restore the interface in case of changes in the IT system of the customer. Changes in the IT infrastructure of the customer (e.g. change of the name of the WLAN network, change of the WLAN password, change of IP addresses) as well as changes in the customer software (e.g. updates) may affect the functioning of the data transfer between the truck and the IT system of the customer.
§ 2 Rights of use
(2) The customer shall only be entitled to decompile and/or to duplicate the SOFTWARE, if and to the extend provided by the law. However, this shall only apply if STILL does not make the required information for this available for the customer within a reasonable time period upon request under the conditions of the law.
(3) The customer shall be entitled to transfer the PRODUCT to a third party on a permanent basis along with handing over the documentation. In this case the customer will give up the use of the SOFTWARE completely. Further shall the customer expressly agree with the third party to observe the scope of the granting of rights pursuant to this § 4.
(4) Should the customer use the PRODUCT in a way exceeding the granted rights of use qualitatively (in regard to the permitted use), he shall acquire without delay the required rights of use for the permitted use. In case the customer fails to do so STILL will assert the rights and claims it is entitled to.
(5) Copyright notations, serial numbers or other means for program identifications must not be removed from the PRODUCT or be modified.
§ 3 Cooperation obligations of the customer
If a connection to the customer’s IT system is possible, after the purchase of the PRODUCT and the order by the customer, the interface will be configured and put into operation by STILL accordingly at the customer's premises. The customer shall cooperate as follows and make the following available prior to the configuration and putting into operation:
- Assessment and provision of the required operational conditions according to the “STILL iGo pilot navigation interface description” in the Appendix;
- Information about the WLAN (operating modes, encryption)
- Network addresses for the configuration of the trucks
- Technical information of peripheral devices used (scanners, terminals)
- Information on the structure of barcodes used
- Information about configuration of the file transfer (if used: file format, protocol, user ID)
If the customer fails or is in delay to fulfil its cooperation duties in regard of the putting into operation, STILL shall be entitled to postpone the execution of the services until the requirements for the execution are met. In case the postponement causes additional cost, the cost shall be borne by the customer.
§ 4 Product price, license fee
(1) For the SOFTWARE with the granting of rights of use under this contract, STILL shall receive a one-off licence fee, the amount of which is 4 % of the truck price (end customer price). The configuration and putting into operation are not included in the license fee.
(2) Any and all prices are net prices, i.e. plus any accrued statutory VAT.
§ 5 Warranty
(2) The customer shall inspect the PRODUCT without delay after delivery in regard to obvious defects and shall notify such defects without delay to STILL. Otherwise the warranty for such defects shall be excluded. The same shall apply if a defect becomes apparent later on. § 377 HGB shall apply.
(3) In the event of a defect as to quality, STILL is initially entitled to subsequent performance, i.e. at its own discretion to remedy the defect (“rectification of defects”) or to deliver a replacement. In the context of the delivery of a replacement the customer may have to accept and implement a new release of the SOFTWARE, unless this causes an unacceptable impairment for the customer. In the event of defects of title, STILL will, at its own discretion, provide the customer with a legally unobjectionable use of the SOFTWARE or modify it in such a way that the rights of third parties are no longer infringed.
(4) Except for claims for damages, any warranty rights and claims are time-barred after one year.
(5) Any modification in the IT system of the customer (see §1 (4)) may impair or interrupt the functioning of the PRODUCT. Such impairments or interruptions are not covered by the aforesaid warranty.
(6) The customer shall ensure that the HARDWARE and SOFTWARE on the customer’s side complies with reasonable state of the art IT security standards. In particular, STILL assumes no responsibility or liability for damages resulting from an inadequately encrypted WLAN or missing or not up to date security updates.
(7) The customer is responsible for presenting and proving the existence of a defect. If a fault reported by the customer is not covered by the warranty in this sense, the customer shall bear the costs incurred by STILL.
§ 6 Liability
(1) STILL shall be liable without limitation
- in cases of deliberate intent or gross negligence
- in cases of personal injury or death
- in accordance with the Product Liability Act
(2) In cases of slightly negligent violations of essential contractual obligations the liability of STILL is limited. Essential contractual obligations are those obligations that protect contractual legal positions of the customer, which the contract has to grant according to its content and purpose. Furthermore, contractual obligations whose fulfillment makes the proper execution of the contract possible in the first place and on the observance of which the customer regularly trusts and may trust, are also essential. The claim for damages for the breach of essential contractual obligations, however, is limited to the contractually typical, foreseeable damage.
(3) Any further liability of STILL shall be excluded.
(4) The aforesaid limitations of liability shall likewise apply to the personal liability of the employees, statutory bodies and representatives of STILL.
§ 7 Safeguard measures, right of audit
(1) The customer shall be obliged to safeguard the SOFTWARE by suitable measures against access by unauthorised third parties.
(2) Upon STILL’s request, the customer shall facilitate STILL the verification of the proper use of the SOFTWARE in connection with the PRODUCT; in particular in regard to the use of the SOFTWARE in terms of quality and quantity in accordance with the licenses acquired by the customer. In this respect, the customer shall provide information, grant access to relevant documents and files and give STILL or an auditing company nominated by STILL and acceptable for the customer the right and the opportunity to audit at the customer’s premises the application of the SOFTWARE and of the HARD- and SOFTWARE environment. STILL may carry out the inspection or have it carried out on the customer’s premises during the customer’s regular business hours with their own employees, employees of group companies and/or the auditing company under respective confidentiality obligations. STILL shall ensure that the conduct of the audit will not disturb more than unavoidable the operations of the customer at site. Should the audit result show a non-compliant use of the SOFTWARE, the customer shall bear the cost of the audit, otherwise STILL shall bear the cost.
§ 8 Confidentiality
STILL and the customer shall be obliged to keep strictly confidential any information marked as confidential or confidential by nature which one party discloses or otherwise makes available to the other party, and to use the confidential Information exclusively in the context of the contract. Each party shall take appropriate precaution measures to ensure that unauthorised persons will not gain access to any confidential information of the other party during the execution of the contract and for 5 years after completion or termination of the contract.
§ 9 Data privacy
There are no personal data collected by the PRODUCT in its original state of delivery. A transfer of data out of the network made available by the customer does not take place in the course of the ordinary use of the PRODUCT. STILL makes the customer aware that in case of the analysis of the data by the customer data privacy and/or labor law requirements may have to be observed. STILL shall be entitled to upload anonymised statistics via the diagnosis interface.
§ 10 Miscellaneous
(1) The customer shall not be entitled to assign any rights or claims against STILL without STILL’s prior written consent.
(2) The customer shall only be entitled to set off claims, if such claims are undisputed or legally established.
(4) Terms & conditions of the customer do not apply.
(5) The parties are aware, that the SOFTWARE may be subject to export or import restrictions. In particular, there may be duties to obtain a permit or the use of the SOFTWARE or technologies connected with it abroad may be subject to restrictions. The customer shall be obliged to comply with the applicable export and import control regulations of Germany, the European Union, the United States of America and other applicable regulations. The execution of the contract by STILL is agreed under the reservation that no impediments caused by national or international export or import laws and regulations or by any other applicable laws and regulations prevent STILL from execution.
(6) This contract is subject to the law of Germany. The application of the UN Sales Convention (CISG) is excluded.
(7) Place of performance and exclusive place of jurisdiction is Hamburg, Germany.
(8) In the event that one or more provisions of this contract be or become ineffective, the validity of the rest of the contract shall not be affected. The ineffective provision shall be replaced by an appropriate, legally permissible provision which comes closest to what the parties would have intended if they had considered this point when concluding this contract.