Terms and conditions of use
Modified on: Thu, 2 Jul, 2020 at 11:35 AM
1. Scope of validity and application
3. Conclusion of the contract
4. Scope of service: Temporary software leasing
(1) The object of the contract is the "DIALux" software and/or the "pro features" associated with this software. It includes the functions and hardware requirements listed in the product description.
(3) The customer is not entitled to a certain scope of service, a certain configuration, equipment or functionality of the "DIALux" software and/or its "pro features".
5. Rights of use, precautionary measures, adaptations of the software
(1) DIAL grants to the customer of the "DIALux" software and/or the respective "pro feature" associated with the software the non-exclusive, non-transferable and non-sublicensable right, limited to the respective contract term, to use the "DIALux" software and / or to use the "pro feature" associated with this software for its own business purposes only in the exercise of its commercial or independent professional activity on a specific hardware. The right of use is restricted to the number of utilisation units ordered by the customer.
(2) If the customer substitutes the hardware, they must release the hardware used previously in the "DIALux" user portal in order to continue to use the functions, subject to charge, of the respective "pro features" on the new hardware. Storing or using the software on more than one hardware at a time is not permitted.
(3) DIAL has the right to take appropriate technical measures to protect against improper use of the software.
(4) The customer is not permitted to modify the software. The resetting of program codes provided by DIAL into other code forms (decompiling) and other kind of reverse engineering of the various production stages of the software are not permitted.
(5) Copyright notices, serial numbers and other features that serve to identify the program may under no circumstances be removed or modified. This also applies to the suppression of corresponding features on the display.
DIAL provides a free-of-charge online support service for registered users in order to support users when using the "pro features", which are subject to charge. This support service does not include: General know-how transfer, training sessions, configuration and implementation or customer-specific documentation or adjustment of the software. The support service is implemented via email, telephone or via the online forum. The contact information for the support service can be found at my.dialux.com.
(2) The customer can terminate a current contract for the respective “pro feature” at any time without observing a notice period before the expiry of the respective contract term at the end of the agreed term via my.dialux.com. To do this, the customer shall log into my.dialux.com using their access details and access their current contracts. The customer then selects the contract they want to terminate and executes the "Terminate contract" function. The contract is terminated once the action is confirmed via the dialog box. This can be seen in the current status of the respective contract. The licenses associated with the contract for the respective “pro features” can still be used until the end of the respective contract term.
8. Remuneration, term, payment methods
(1) The basic version of the "DIALux" software is free of charge.
(2) The customer is to pay DIAL the remuneration agreed upon for the respective "pro feature" for the hire and the granting of rights of use of the respective fee-based "pro feature" during the contract term (see range of services/price list at my.dialux.com). Unless otherwise agreed, the remuneration is the cost of a regular license fee. All rates of pay are additionally subject to the statutory sales tax.
(3) The license fee is paid for the respective “pro feature” and is due in advance at the start of the contract for the term intended for this purpose and thereafter at the beginning of each extension term (see clause 7 and clause 1). An expansion of the respective "pro features" is possible at any time.
(4) If the customer already has a licensed "pro feature" and further licences for new users are added as part of and during the term of this licence or the number of licences is reduced during the term, these additional charges or the corresponding remuneration (if the number of licences is reduced) will be proportionally offset against the next regular payment, calculated over the shortened term.
(5) Provided that the customer already has a licensed "pro feature" and further "pro features" for new users are licensed as part of and during the term of this licence, the term of the new "pro features" is adjusted to the term of the existing "pro features". This is to ensure a uniform term of all "pro features".
(6) The following payment methods are accepted: Payment by SEPA direct debit, payment by credit card. The following credit cards are accepted: Visa, Mastercard, American Express. All transactions are encrypted with an SSL encryption. If a payment fails or a customer is more than 10 days late in making payment, the right to use the software lapses, without the requirement for DIAL to provide an declaration. The "pro feature" is then no longer available to the customer.
(7) Invoices are automatically generated and sent as PDF files to the email address provided during registration. Invoices can also be downloaded as PDF files using the my.dialux.com portal.
(8) DIAL has the right to review the remuneration for services continuously rendered and recurring and/or depending on the intensity of use by the customer during the term of the individual contract. The unsuitability of previous remuneration can result from changes to the scope of service, provided that this leads to an increase in costs for the provision of services. In the event of a change, DIAL determines the additional or lower amount to be paid in future at its reasonable discretion (Section 315 (3) of the German Civil Code) and informs the customer of the amount of the usage fee to be paid in the future in writing or in text form, whereby price adjustments leading to price increases for a service do not occur before one year has passed since the last price increase for the same service. Back-dated price changes are precluded. If an increase exceeds five percent of the preceding remuneration for the service, the customer has the exceptional right of termination, which they can exercise within a month after receipt of the price increase declaration.
9. Claims for defects
(1) DIAL's no-fault liability for errors that already exist when the contract is concluded in accordance with Section 536 a (1) of the German Civil Code is expressly excluded. This does not apply if DIAL has fraudulently concealed the defect or has caused it intentionally or by gross negligence. The customer must immediately report defects of the hired software to DIAL and these defects must be rectified by DIAL within an appropriate time-frame. DIAL shall remedy the defect at its own discretion either by repair or replacement, free of charge.
(2) The customer may not enforce a reduction by reducing the agreed remuneration amount. Claims for corresponding enrichment or for compensation remain unaffected.
(1) DIAL shall be liable for damages incurred by the customer in the context of this contract, insofar as DIAL, its representatives or agents are guilty of intent or gross negligence.
(2) DIAL shall also be liable for damages incurred by the customer in the context of this contract, insofar as these have been caused by DIAL, its representatives or agents through the negligent breach of an essential contractual obligation. Essential contractual obligations are those which must be fulfilled in order to achieve the objective of the contract. In this case, DIAL's liability is limited to the damages that were typically foreseeable when this contract was concluded.
(3) This limitation of liability applies to all obligations to compensate for damages, regardless of the legal basis, including, among other things, pre-contractual or secondary contractual claims. However, this limitation of liability does not limit any legally mandatory liability, including liability under the German Product Liability Act (ProdHaftG) or liability for personal injury caused by negligence.
(4) The customer is obligated to take effective measures to prevent and minimise damages.
11. Place of Performance, jurisdiction, severability clause
(2) The customer may only offset or exercise a right of retention against claims other than its contractual counterclaims arising from the legal transaction concerned if such claim is undisputed by DIAL or has been declared final and absolute by a court of law.
(3) The parties agree that the law of the Federal Republic of Germany shall apply to all legal relationships arising from this contractual relationship.
(4) The place of fulfillment is the headquarters of DIAL.
(5) The exclusive place of jurisdiction for all disputes between the parties arising from or in connection with the business relationship is Lüdenscheid.
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