General Terms and Conditions of Use of HKR - Elektrotechnischer Gerätebau GmbH, Gewerbestraße 7, 72813 St. Johann-Upfingen, Germany, for HKR-Software
§ 1 Validity
(1) These General Terms and Conditions of Use (hereafter “GTC”) govern the granting of rights of use for the software “HaKRotool” from HKR (hereafter “HKR-Software”), which an entrepreneur in accordance with the provisions of § 14 of the (BGB) German Civil Code (hereafter referred to as “customer”) can use for the purposes of more comfortable parameterization, more extensive diagnosis, and easier data transfer for an HCX device purchased from HKR. The installation of the HKR-Software (a single-user application) on-site at the customer (e.g. on his computer terminal), the provision of services and/or training for the HKR-Software and the provision of maintenance for the HKR-Software (beyond the scope defined under §9 Paragraph 3) shall not be owed and must be specially agreed to with HKR and duly compensated.
(2) HKR does not recognize and objects any contradictory and/or divergent terms and conditions of the customer, unless HKR has agreed to this in writing in a specific case.
(3) As more specialized provisions, these General Terms and Conditions of Use shall always take precedence over the provisions of the General Terms and Conditions of HKR, which shall apply only in so far as supplemental.
§ 2 Granting of Rights of Use, Indemnity, Documentation
(1) HKR grants the customer a simple, non-exclusive, non-sublicensable (only for clarification: also not to any companies affiliated with the customer in accordance with §§ 15 ff. AktG - German Stock Corporation Act) and a transferable only in accordance with the following provisions (§ 2 Paragraph 3) right to install the HKR-Software (in object code) and the corresponding documentation (manual as a pdf file) on one (1) computer terminal and exclusively for the use of an HCX device purchased from HKR. The granting of the rights of use for the respective source code of the HKR-Software, its disclosure and/or access to it shall not be covered by this GTC and shall not be owed by HKR.
(2) Should HKR augment or replace the HKR-Software provided to the customer, the customer shall have the same rights to this subsequently provided HKR-Software as the software that it shall augment or replace.
(3) The customer shall have the right to transfer the above-named rights of use for the HKR-Software to the purchaser of the HCX device (that the customer purchased from HKR) at no cost, in so far and to the extent that the customer ensures that (i) these GTC shall become legally binding in the (future) legal relationship between HKR and the transferee and (ii) the customer informs HKR in writing in advance of the company name and legal form of the transferee. The customer shall indemnify HKR against any and all claims - regardless of legal basis - that users of the HKR-Software assert against HKR because of or in relation to the non-inclusion or non-effective inclusion of these general terms and conditions of use. Any further transfer of the rights of use for the HKR-Software shall require approval by HKR in advance.
(4) The customer shall not be permitted to provide access to the HKR-Software commercially to third parties (for example, via the Internet), to sell the rights of use for the HKR-Software to unauthorized third parties, or to grant access - regardless of method or form - to non-authorized third parties.
(5) The customer shall accept the HKR-Software documentation (manual as a pdf file) existing at the time and date of the download as contractual. HKR provides as documentation access to installation instructions and an online help platform that enables searching and printing of explanations of functions while the software is in use. HKR shall not be obligated to provide any further documentation.
(6) The provisions agreed to in this § 2 shall also contractually obligate the parties legally.
§ 3 Delivery of HKR-Software
(1) The delivery of the HKR-Software shall occur with the provision of the download link under https://www.hkr-traktion.de/wp-content/uploads/hkr-files/HaKRotool_Setup.zip .
(2) The installation of the HKR-Software and/or any bug fixes, patches, or other updates shall always be carried out by the customer.
(3) The customer may book training on the use of the HKR-Software at an extra cost.
§ 4 Customer Cooperation Obligation
(1) The customer is aware that HCX devices generate high currents and voltages, which may be dangerous for humans and machines. The customer shall therefore always ensure that the HCX device shall only be used and monitored by trained specialists when the HKR-Software is being used to run and/or diagnose an HCX device. However, parameter changes may only be made by employees trained in advance by HKR (training is offered according to the provisions of the respectively valid HKR price list), because changes to the processing and/or regulating parameters may alter the operating behavior of the HCX device.
(2) The customer shall take all measures (e.g. provision of an Internet connection, the use of a suitable operating system) necessary in order to continually ensure the proper and uninterrupted operation of the HKR-Software. The HKR-Software runs on an operating system and is therefore dependent on its task and storage management. It cannot be guaranteed that the software will not freeze or stop unexpectedly due to external circumstances. The minimum requirements for the operation of the HKR-Software are listed under § 12.
(3) The customer shall always notify HKR immediately of any defects in the HKR-Software in writing according to the provisions of § 9 Paragraph 3, assist HKR in the determination and remediation of any defects, and grant immediate access to records that may indicate the detailed circumstances that resulted in the defect.
(4) The customer shall take appropriate measures to protect the HKR-Software from unauthorized access by third parties.
(5) The customer shall instruct its employees on compliance with the provisions of this GTC and the copyright laws. In particular, the customer shall inform its employees that making copies of the HKR-Software and its documentation beyond the scope permitted in this contract (§ 5) shall be prohibited.
(6) Should an employee of the customer infringe upon the copyright of HKR, the customer shall be obligated to make every effort to cooperate in the clarification of the copyright infringement, especially providing HKR immediately with information about the relevant acts of infringement.
The customer shall make an effort to set up remote maintenance access for HKR to process inquires or notices of defects. The customer shall give HKR all information necessary for this (e.g. Login ID, password) and also take all measures necessary for it. If the customer cannot or does not wish to provide HKR with the above-mentioned remote maintenance access, HKR shall have the right to perform the services on-site to be compensated according to HKR’s applicable installation rates.
§ 5 Reproduction
(1) The customer shall have the right to reproduce the HKR-Software for use on one (1) computer terminal. The only authorized reproduction activities authorized are the installation of the HKR-Software on one data storage medium of the computer terminal, the transfer of the Software in part or whole from this storage medium to the RAM and then to the CPU and graphic card of the computer terminal.
(2) The use of the HKR-Software shall only be permitted on the computer terminal on which the HKR-Software was initially installed.
(3) The customer may neither sell, nor gift, nor lend, nor sublet, nor lease the HKR-Software to third parties.
(4) The customer may make one backup copy of the HKR-Software in accordance § 69d Paragraph 2 UrhG (German Copyright Law). This copy must be labeled as such. If the customer shall be able to prove that the original version can no longer be found or has become unusable, the backup copy shall take the place of the original.
(5) The customer shall not be permitted to remove or circumvent any protection mechanisms that HKR has put in place to prevent the unauthorized use of the HKR-Software, unless this shall be necessary in order to achieve problem-free use of the program.
§ 6 Decompilation, Software Modification
The reverse engineering of the provided program code into other code forms (“decompilation”) as well as any other method of reverse engineering of the different development stages by the customer shall (only) be permitted - in continual accordance with the provisions of § 69e UrhG (German Copyright Law) - in as far as and to the extent that (i) they are undertaken in order to attain information necessary to establish interoperability with an independently acquired computer program and (ii) this information cannot be otherwise obtained. The customer shall therefore first request the needed information from HKR and compensate HKR for any expenses incurred.
(2) A further prerequisite for decompilation is that the reverse engineering or program observation shall be carried out in such a way that the program code is not printed out on a printing device.
(3) Copyright notices, serial numbers and any other program identification features may not be removed or altered for any reason. The same applies to any repression of such features on display screens.
§ 7 Further Development of the HKR-Software
HKR shall not be obligated to further develop - in any form or to any extent - the HKR software after it has been downloaded by HKR customers (irrespective of the provisions under §9). The further development of the HKR-Software therefore remains at the sole discretion of HKR. Even if HKR shall offer further developments of the HKR-Software (such as upgrades) as downloads for use as a gesture of goodwill, the customer may not use this as the basis for any legal claims against HKR for the provision of further upgrades or any further development of the HKR-software.
§ 8 General Non-Fulfillment of Obligations
(1) Should the customer set a reasonable deadline for the provision of an obligation or rectification, the customer may then only withdrawal from the contract or demand payment for damages instead of fulfillment after the set deadline has expired and if the customer informed HKR at the time that the deadline was set that the customer would no longer desire fulfillment if the deadline was not met successfully. Should the customer issue a written warning instead of setting a deadline, the customer must also inform HKR in the written warning that the customer would no longer desire fulfillment if the warning should not be successful.
(2) The customer may only withdraw because of a breach of obligation not related to a defect in the HKR-Software if HKR is at fault for the breach of obligation.
§ 9 Warranty for Material and Legal Defects
(1) Technical data, specifications, and performance details in public statements, especially in advertising materials, shall not constitute declarations of characteristics. The functionality of the HKR-Software shall be taken from the provisions under § 12. Otherwise, the HKR-Software must be suitable for the use set out in the contract and also display characteristics that are customary for software of the same type. In particular, the customer must ensure that the HKR-Software shall satisfy the customer’s requirements.
(2) Customer claims for rectification shall lapse twelve months after the first use of the HCX device, and at the latest 24 months after delivery of the HCX device. This shall not apply in the case of willful intent and malicious non-disclosure of a defect by HKR.
(3) HKR shall fix any defects in the HKR-Software after receiving a corresponding notice of error from the customer within reasonable time, in so far as and to the extent that the following preconditions have been met: (i) the customer notified HKR of the defect immediately after detection in a comprehensible and detailed way that took into account all information necessary for identifying and rectifying the defect (in particular, the customer shall note the steps that led to the occurrence of the defect as well as the effects and manifestation of the defect), (ii) the error that led to the defect can be replicated by HKR on the systems of HKR, and (iii) the error that led to the defect did not result from the combination of the HKR-Software with hardware, software, IT systems and/or other peripheral devices of the customer that are not supported by HKR or the result of unauthorized modifications to the HKR-Software by the customer and/or third parties. HKR shall then provide bug fixes or patches for the customer to download if necessary to fix the defects of the HKR-Software that significantly impair its usability. The installation of these bug fixes or patches shall therefore not constitute a contractual obligation for HKR. HKR shall have the right at any time to rely on the use of a subcontractor, in particular for the fulfillment of warranty obligations. Support services and/or (additional) software maintenance services must be agreed to separately and duly compensated. HKR shall not owe any further development of the HKR-Software.
(4) Before making any claims for rectification, the customer shall verify with all reasonable care that a defect subject to rectification exists. In doing so, the customer shall pay particular attention to the instructions in the documentation (manual as a pdf file). In so far as an alleged defect shall not fall under the obligation of HKR for rectification (“pseudo defect”), the customer may be charged for the services provided by HKR for verification and troubleshooting at the respectively valid fee rates of HKR in addition to any expenses incurred, unless the customer would not have been able to recognize the pseudo defect even if all reasonable care had been taken.
(5) HKR shall not owe any adaptation of the HKR-Software for changed conditions of use as well as technical and functional developments, such as changes to the IT environment of the customer and in particular changes to the hardware or the operating system, as well as alignment with the range of functions of competing products or the establishment of compatibility with new data formats.
(6) The above-named services provided by HKR (§ 9 Paragraph 3) for a material defect shall be the only obligations of HKR and the only entitlement in relation to defects, errors, malfunctions, or non-conformity with the specifications of the HKR-Software. Shall the rectification of the defect not be successfully accomplished within a reasonable timeframe and shall it continue to fail after a further reasonable deadline set for HKR by the customer, the customer shall be entitled to the statutory warranty rights.
(7) The customer shall have no warranty rights if the customer either made changes to the HKR-Software or had a third party make such changes without advance written approval by HKR, unless these changes had no effect whatsoever in relation to the defect.
(8) In the case of any violation of property rights or copyrights, HKR shall be permitted - irrespective of any damage claims of the customer - at its own discretion and at its own cost to undertake the following in relation to the affected HKR-Software (i) to modify the HKR-Software in such a way that it shall no longer violate the rights of third parties or (ii) to replace the HKR-Software with functionally equivalent materials that shall not violate the rights of third parties, provided that these steps should be within reason for the customer. However, HKR shall accept no liability if a violation of property rights or copyrights shall result from (i) the use of a different version than the most current release of the HKR-Software, or (ii) combinations of the HKR-Software with programs or products from manufacturers other than HKR.
(9) Otherwise, the statute of limitations for claims related to material defects shall expire one year from the date on which the statute of limitations begins according to statutory regulations.
§ 10 Liability
(1) HKR shall be liable for any damages incurred by the customer resulting from willful intent or gross negligence on its own part or that of its legal representatives or agents as well as any damages resulting from loss of life, limb, or health that can be attributed to HKR, its legal representatives, or its agents.
(2) In the case of slightly negligent breaches of obligations whose fulfillment enables the proper execution of this contract in the first place or whose violation endangers the achievement of the purpose of the contract, the liability of HKR shall be limited to damages foreseeable and typical for this contract. This shall also apply for lost profit and lost savings.
(3) In determining whether HKR shall be at fault, it must be taken into consideration that, technically-speaking, software cannot be compiled without errors.
(4) If the liability of HKR shall be limited to damages foreseeable and typical for this contract, then its liability shall not exceed the amount of 5,000 Euros, in so far as and to the extent that this sum shall correspond to damages foreseeable and typical for this contract.
(5) Otherwise, HKR shall not bear any liability for damages caused by slight negligence.
(6) HKR shall only otherwise be liable for the loss of data, to the extent that the customer has backed up this data in a machine-readable format at adequate intervals appropriate for its application and at least once a day, so that the data may be restored at reasonable effort and/or expense. Shall the customer fail to carry out such a data backup, then the liability of HKR shall be limited to the expense or effort that would have been required to restore the data from a properly executed data backup, as well as to the damage incurred by the loss of current data that would also have been lost even if a daily data backup had been carried out. HKR recommends that the customer carry out a data backup prior to installation of the HKR-Software.
(7) HKR shall only bear liability arising out of a warranty policy for compensation for damages in so far as and to the extent that HKR issued a warranty whose express purpose was to protect the customer against the occurrence of the damage claimed.
(8) The liability set out in the provisions of the Product Liability Law (ProdHaftG) shall remain unaffected by this.
(9) To the extent that HKR shall be liable for damages that do not relate to the loss of life, limb, or health, for which slight negligence cannot be ruled out, any such claims shall have a statute of limitations of one year beginning at the end of the year in which the claim originated and the customer learned of the circumstances giving rise to the claim and the person of the obligor or otherwise must have learned of this without gross negligence on the part of the customer.
(10) Otherwise, the liability of the parties shall be determined according to the statutory regulations.
§ 11 Non-Disclosure
(1) “Confidential Information” shall be
a) all information, statements, file notes, analyses, compilations, studies, documents, know-how, data files, code, prototypes, or any other records of any kind (whether conveyed orally, in writing, electronically or through any other method),
b) also including any of these that may be protected by commercial and/or other property rights (e.g. draft materials for software according to § 69a Paragraph 1 UrhG (German Copyright Law)) as well as
c) all (written or otherwise) file notes, analyses, compilations, studies, documents, data files, code, prototypes or any other records created or that will be created by one of the parties and contain this kind of information,
which the respective disclosing party has either informed, transferred, disclosed, made accessible, or otherwise communicated to the receiving party and/or its employees or will do so.
(2) Non-confidential information is information for which the receiving party can prove the following:
a) it was already known or became public knowledge at the time at which it was disclosed, and whose being known or becoming known did not rest on a breach of statutory regulations, this contract, or any other agreement made between the parties; or
b) it was already known at the time at which the contract was concluded, but the being known or becoming known did not rest on a breach of a statutory regulations or an agreement made between the parties or a provisions of this contract; or
c) it was communicated or otherwise made known to the receiving party by a third party after the contract was concluded, but the communication or disclosure by a third party did not occur under violation of a statutory regulation, this contract, or any other agreement made between the parties and that it was not acquired through any conduct that, given the respective circumstances, does not adhere to the principle of good faith in keeping with honest market practices.
(3) Confidential information shall also be all other information that either in whole or in the exact order and compilation of its parts is generally known to or readily accessible to the receiving party, which therefore is of financial value for the disclosing party and that the receiving party does not lawfully acquire, use, or disclose.
(4) The parties mutually obligate themselves to keep all information received from each other confidential, which means (i) not to use it for another purpose other than that agreed to under § 1 of this GTC and (ii) not to directly or indirectly make it accessible to third parties, regardless of form and regardless of whether in whole or part, unless the party that gave knowledge of the information expressly approved each instance of such a transfer or disclosure in writing and in advance. However, HKR shall be permitted to use the confidential information internally within HKR for the further development of its other products and services.
(5) The party receiving the information shall be respectively obligated to keep and use the information acquired in such a way that it shall not be accessible and cannot be made accessible to third parties, even without taking active action. Third parties are affiliated companies according to the provisions of §§ 15 ff. AktG (German Stock Corporation Law) However, the parties shall mutually have the right to report on the fact of their business relationship itself as well as the published scope and content of the software in their external communications. In particular, however, this shall not include the disclosure of technical and financial details of the cooperation covered under this contract. The disclosure of this kind of or comparable details shall always required a statement of approval in text form by the respective other party in advance.
(6) The parties may only provide confidential information to those employees and agents who have been entrusted with the rendering of contractual obligations, and then only to the extent that this shall apply to the specific tasks assigned to the respective employees within the rendering of contractual obligations, as long as these employees have also been obligated to non-disclosure. The parties shall exercise at least the same care in terms of non-disclosure as in their own comparable affairs.
(7) The parties agree that the receiving party’s acquisition of confidential information through the observation, examination, deconstruction, decompilation, or testing of something (even, for example, as machine code) that was publicly made available, or transferred to the receiving party from the disclosing party, or became the property of the receiving party after the conclusion of the contract shall not be permitted and shall be considered a violation of the above-named provisions for the protection of confidentiality.
(8) Each party shall be obligated, at the request of the disclosing party, to hand over or delete in accordance with data protection requirements all confidential information received from or disclosed by the disclosing party immediately upon termination of this contract, taking into account the legal retention periods.
(9) The respective receiving party shall not in any way use or exploit (in particular to apply for patents or registered designs) any confidential information (even if this information should not fall under a legal property right), in so far as and to the extent that this contract does not include any provisions that deviate from this.
(10) The above-named non-disclosure obligations shall apply as long as this contract shall remain in effect and after termination of this contract (regardless of the legal basis) for an additional three (3) years.
(11) The customer accepts and confirms that each violation of the customer’s obligations governed under § 11 (non-disclosure) may or can lead to irreparable damage for HKR. The customer therefore accepts that in such a case, HKR shall have the right to claim appropriate protection of its interests as well as financial compensation in addition to its other rights outlined within this contract.
§ 12 Description and Minimum Requirements for HKR-Software
(1) Minimum Requirements (Hardware and Software)
- Windows 10
- .Net Framework 4.6*
- Microsoft Visual C++ 2017 Redistributable (x86) *
- PEAK – Driver for PCAN-USB - Dongle
*will be installed automatically during the installation process if not already installed.
- PEAK PCAN-USB - Dongle
(2) Features of the HKR-Software
The HKR-Software is used for the more comfortable parameterization, more extensive diagnosis, and easier data transfer from HCX devices. The HKR-Software is not network compatible (single user software)
The HKR-Software offers the following functions:
- Firmware-Update-of HCX-devices
- Adjustment of devise parameters
- Read out and graphic representation of measured values
Additional software that will be automatically installed with the installation of the HKR-Software, if not already installed by the customer:
- .Net Framework 4.6
- Microsoft Visual C++ 2017 Redistributable (x86) *
- Peak-Driver for PCAN-USB
HCX devices generate high currents and voltages, which may be dangerous for humans and machines. Therefore, the customer must always ensure that the HCX device can be safely switched off with a hardware switch at all times during which settings are being adjusted with the HKR-Software. The HKR-Software runs on an operating system and is therefore dependent on its task and storage management. It cannot be guaranteed that the HKR-Software will not freeze or stop unexpectedly due to external circumstances.
§ 13 Final Provisions
(1) This contract is governed by the laws of the Federal Republic of Germany under the exclusion of the conflict of law provisions of international private law as well as the exclusion of the UN Convention on the International Sale of Goods.
(2) The customer shall not have the right to export the HKR-Software to the receiving country without the required authorizations of the respective national authorities.
(3) The binding language of this contract is German. The English version of this General Terms and Conditions of Use shall only serve for ease of readability; the German version shall always be definitive and authoritative. Should any provision of this GTC warrant further interpretation, the intended German meaning shall always be definitive and authoritative.
(4) The place of fulfillment shall always be the registered seat of HKR.
(5) Amendments or additions to this contract with the customer must be made in writing. This shall also apply for the waiver of the written form requirement. The parties are in agreement that no verbal agreements have been made.
(6) The parties agree that the court of jurisdiction for any conflicts arising out of and/or in relation to this GTC and/or the use of the HKR-Software shall be Tübingen, Germany.
Suggested wording for the inclusion of the General Terms and Conditions of Use a) when providing the download and b) before starting the installation process by clicking a checkbox (is not a part of the Terms and Conditions of Use)