Reseller Terms & Conditions
General Terms and Conditions of cleverbridge AG for ATLAS.ti Resellers
Last revised: 2012-12-19
I. Subject Matter, Territory
1. ATLAS.ti Scientific Software Development GmbH (hereinafter referred to as "ATLAS.ti GmbH") is the author and manufacturer of the "ATLAS.ti" software (hereinafter referred to as "Software"), but not its Vendor. cleverbridge AG, Gereonstr. 43-65 Cologne, Germany, is the Vendor of the Software and therefore also the sole contractual partner to the customer (hereinafter referred to as "Reseller"). The Vendor grants the Reseller certain rights within the framework of the Terms and Conditions contained in this document.
2. The Reseller shall be entitled to purchase the Software from the Vendor for the purpose of reselling or to establish the contact for the sale of the Software to final customers.
3. The territory of the contract shall not be restricted. The Reseller shall be entitled to distribute the Software world-wide with the exception of countries in which the distribution of software is subject to the export control regulations of the Department of Commerce, so that the Software may not be distributed in countries under US embargo.
II. Legal Position of the Reseller, Definition
1. The Reseller shall act on behalf of the Vendor either as an independent commercial agent whereby he establishes the contact for the sale of the Software to final customers (hereinafter referred to as "Reseller as a commercial agent"). This may take place, for instance, by the Reseller as a commercial agent setting a link on his web site to ATLAS.ti GmbH's website, so that the user can click this link in order to register on ATLAS.ti GmbH's web site and purchase the Software.
The Reseller may also operate as an authorized distributor whereby he approaches the Vendor as an independent merchant and purchases the Software in his own name and for his own account (hereinafter referred to as "Reseller as an authorized distributor").
In as far as these provisions refer only to the "Reseller," these Terms and Conditions shall apply to both the Reseller as a commercial agent and the Reseller as an authorized distributor.
2. The Reseller shall not be entitled to accept on behalf of ATLAS.ti GmbH customer payments or to represent ATLAS.ti GmbH in any transactions.
3. ATLAS.ti GmbH and the Vendor shall be entitled to enter into business transactions in the territory of the contract either on its own behalf, through agents or other resellers, without the Reseller being entitled to claim commission.
4. The Reseller shall be entitled to employ sub-agents and other assistants to support him in his activities. This shall not constitute any legal relationship between such sub-agents and assistants and ATLAS.ti GmbH. The Reseller shall ensure that the obligations set forth in these Terms and Conditions are also observed by such persons employed by him.
III. Obligations of the Reseller
1. The Reseller shall perform the tasks and rights assigned to him pursuant to these Terms and Conditions with the diligence of a prudent businessman. He shall protect the interests of ATLAS.ti GmbH.
2. The Reseller shall observe the rules of fair competition.
3. The Reseller shall treat as strictly confidential any trade and business secrets made known to him by ATLAS.ti GmbH or the Vendor within the scope of the performance of the contract. He shall ensure that such obligation is also observed by his own employees. Such obligation shall survive a termination of contract.
4. The Reseller warrants that he is in possession of the all the official approvals and licenses which may be required under national law in order to perform any activities within the scope of these Terms and Conditions.
5. The Reseller shall be obliged to provide the end user's contact data during the ordering process. If the Reseller obtains the software for sale at a later date, he shall ensure that the end user registers the Software online with ATLAS.ti GmbH by entering the serial number of the Software. The purpose of such entry and registration is to enable ATLAS.ti GmbH to identify whether the final user is in possession of a legitimate serial number and to enable the end user to obtain support services and access to communities, newsletters and updates from ATLAS.ti GmbH.
6. Reseller is expressly prohibited to
sell student licenses of the software
rent or lend the software*
create custom installer packages without the written permission of ATLAS.ti GmbH
bundle or integrate ATLAS.ti software with other software products without written permission
* Note: Only Certified Resellers can obtain and sell leased licenses.
7. The Vendor offers so-called educational licenses of the Software to accreditated educational institutions and their employees (typically universities, colleges, or equivalent institutions of higher learning) for use in academic teaching and research. The Reseller must inform buyers of educational licenses that the educational price reduction will only be granted to institutions or their employees who can document their accredited educational status by legally binding written proof. If the Reseller fails to inform the buyer or if the written proof is not provided immediately after the sale, the Reseller must pay the difference in price between the regular and the educational version to the Vendor. Non-profit organizations and government agencies are not automatically eligible for discounted educational licenses. An organization wishing to be considered for a discount will need to directly contact ATLAS.ti or the Reseller, who will directly contact ATLAS.ti. Government agencies and supra-national institutions (such as EU, UN, etc.) cannot obtain educational licenses.
IV. Special obligations of the Reseller as a Commercial Agent
1. Within the scope of his possibilities, the Reseller as a commercial agent shall examine the economic and legal position of the customers and notify the Vendor immediately of any reservations which he may have.
2. Furthermore, the Reseller as a commercial agent shall be at liberty to work the territory of the contract and to freely pursue his activities.
V. Special Obligations of the Reseller as an Authorized Distributor
1. The Reseller as an authorized distributor shall distribute the Software in the territory of the contract and shall undertake suitable efforts in order to ensure the highest possible sales.
2. The Reseller as an authorized distributor shall be obliged to distribute the Software under the brands, name and in the form of presentation specified by ATLAS.ti GmbH.
3. The Reseller as an authorized distributor shall not change the Software supplied nor the make-up or packaging thereof; the Reseller as an authorized distributor shall, in particular, not change or remove any existing warnings related to the improper use of the products or any information concerning their correct use. In the event that the Reseller as an authorized distributor violates his obligations under the preceding sentence, the Reseller as an authorized distributor shall within the scope of the internal relationship between the parties hereto indemnify and hold harmless ATLAS.ti GmbH against any product liability claims raised by third parties if and to the extent to which such damage was caused by him.
4. In the event that ATLAS.ti GmbH or the Vendor are forced to recall the Software as a result of a defect thereof, the Reseller as an authorized distributor shall support ATLAS.ti GmbH and take any reasonable measures requested of him by ATLAS.ti GmbH. ATLAS.ti GmbH shall refund the Reseller as an authorized distributor for any necessary costs incurred in this context.
5. The Reseller as an authorized distributor shall notify ATLAS.ti GmbH and the Vendor immediately of any risks which come to his knowledge during the use of the Software as well as of any product defects.
6. The Reseller as a contractual agent shall be obliged to ensure that the final user agrees to ATLAS.ti GmbH's General Terms and Conditions for Final Customers which are available online at all times.
VI. Obligations of ATLAS.ti GmbH; Deadlines
1. The Vendor shall assign to the Reseller during the performance of his work a revocable license to use ATLAS.ti GmbH's company name, its brands and logos. The Vendor warrants that he is authorized by ATLAS.ti to transfer such rights In this respect. The Reseller shall ensure that the Reseller's legal status is clearly stated in this context. Advertising measures shall be subject to co-ordination with the Vendor prior to their publication.
2. The Vendor shall forward on a monthly basis either directly or via an authorized third party to the Reseller as a commercial agent the required notices and information concerning the acceptance or rejection of a transaction initiated by the Reseller as a commercial agent or the non-performance of a transaction. Such notification shall be effected by forwarding a monthly account. Otherwise, the Vendor shall be at liberty to accept or reject a transaction with a customer acquired by the Reseller.
3. Details concerning the Software performance and time of delivery shall not be binding unless the Vendor has agreed to a delivery date in writing.
VII. Delivery and Scope of Performance
1. The Software comprises the program and a user manual in digital form in English. The Software shall be delivered on CD-ROM (by post or other form of shipping) or per online data download. The Reseller (or customer in the event that the product is supplied directly to the customer) shall receive the Software in machine code. The customer shall not be entitled to demand delivery of the source code.
2. The customer himself shall install the Software in his software environment. The Reseller shall inform the Customer accordingly.
3. Any presentation or rendering in test programs, product and project descriptions shall not be deemed to constitute any warranty of properties unless explicitly referred to as such.
4. The Reseller must conduct all orders online through the secure ordering process provided by ATLAS.ti GmbH or the Vendor, using his dedicated Reseller ID and password.
VIII. Commission for the Reseller as a Commercial Agent
1. The Reseller as a commercial agent shall be entitled to claim commission for any transactions made and entered into with the Vendor initiated by him during the term of this contract and which are the result of his activities. The amount of such commission shall be subject to a separate agreement to be determined by ATLAS.ti GmbH.
2. The commission shall be calculated on the basis of the net invoice sum, minus separately billed ancillary costs (such as transport and packaging costs, freight, discount, etc.). No commission shall be claimed for transactions carried out directly by the Reseller.
3. The Reseller shall be entitled to commission as soon as and in as far as the Vendor has performed the transaction and has received payment from the customer.
4. Follow-up commission for the Reseller shall be excluded. This shall apply particularly in the event that the customer purchases updates of the Software online from the Vendor even if the customer originally purchased the Software in a transaction initiated by the Reseller as a commercial agent.
5. Commission claim accounts shall be rendered on a monthly basis, at the latest on the final day of the following month. With the rendering of the account by the Vendor or an authorized third party, the claims for commission shall be payable 14 days following receipt of the account. In as far as the Reseller is obliged to charge value-added tax, such value-added tax shall be additionally paid and stated in the commission account.
6. The payment of commission shall be deemed as full consideration of all claims by the Reseller which arise in conjunction with his activities on behalf of the Vendor. The Reseller shall not be entitled to raise any special claim for the refunding of expenses, fees, costs or other expenditure, unless such refunding has been explicitly agreed to in writing from case to case.
7. In the event that the customer fails to pay or in the event of non-performance of a transaction due to circumstances beyond the Vendor's control, the claim for commission shall be cancelled or reduced. Any commission already received shall be returned.
IX. Commission for the Reseller as an Authorized Distributor
1. The Vendor shall grant to the Reseller as an authorized distributor discount on the Software which shall be calculated on the basis of the non-binding (final user) list prices recommended by ATLAS.ti GmbH. The list price currently valid at the time of the purchase agreement shall form the basis of such calculation. The amount of such commission shall be subject to a separate agreement.
2. The prices for the Software which are charged to the Reseller as an authorized distributor shall be based on the net selling price minus the discount currently valid plus value-added tax at the currently valid rate.
3. The Reseller as an authorized distributor shall be at liberty with regard to the prices he charges to his customers. He shall observe the non-binding prices recommended by ATLAS.ti GmbH.
4. The Software supplied shall remain the property of the Vendor until complete payment of the purchase price has been effected.
5. The Vendor shall be at liberty within the framework of its general sales policy to modify list prices and discounts and shall notify the distributor thereof with 1 month's notice. Such notification may also be published on ATLAS.ti GmbH's web site and/or sent via email. Orders that have already been confirmed by the Reseller as an authorized distributor shall not be affected by such modification.
6. The Reseller as a commercial agent can pay through credit card, check, or bank transfer. Purchase orders are also possible as long as this option is granted to the Reseller via the ATLAS.ti GmbH online payment system. In this cases, payments must be made within 30 days after an order is placed.
X. Defects of Quality and Defects in Title
1. The Vendor shall supply the Software to the Reseller in a condition free from defects in quality or defects in title. Defects affecting the suitability for use of the Software to a minor extent only shall not be considered as defects for the purposes of this agreement. Functional impairment caused by the hardware and software environment made available by the Reseller, operator error, defective external data, computer network malfunction or any other reason belonging to the Reseller's sphere of responsibility shall not be considered as defects for the purposes of this agreement.
2. The Vendor shall initially eliminate any defects in quality by repair. The Reseller shall be entitled to demand repair or a new copy of the Software unless ATLAS.ti GmbH is entitled by law to refuse such repair or replacement. The Reseller shall grant to ATLAS.ti GmbH a reasonable period of grace for repair/replacement. Such repair/replacement may also take place in such a manner that ATLAS.ti GmbH supplies the Reseller with the latest service pack in order to eliminate the defect unless it can be ruled out that such action will succeed in eliminating the defect.
3. In the case of failure to repair or replace as aforesaid the Reseller shall be entitled to reduce his payment(s) or to cancel the agreement. Damages shall be subject to section XI hereof.
4. The Reseller is hereby notified that ATLAS.ti GmbH shall offer free service packs at irregular intervals for downloading which enhance the functionality of the Software and which close any security gaps which may arise. The Reseller shall pass such information on to the customer.
1. The Vendor shall pay damages or refund futile expenditure for whatever legal reason (including, but not limited to, failure to fulfil obligations, tortuous act) to the following extent only:
In the case of willful action and in the case of a guarantee concerning agreed properties: to the full amount.
In the case of gross negligence: to the amount of the typical or foreseeable damage to be prevented by the vendor obligation to exercise due care.
In any other case, always subject to a violation of a material contractual obligation and in the case of default, to the amount of typical and foreseeable damage.
2. Notwithstanding the foregoing, statutory liability for personal injury and liability under the product liability act shall remain unaffected.
3. In the event of a loss of data, the Vendor's liability shall be limited to the damage which would have occurred even with the Reseller performing correct data backup procedures.
4. To the extent to which liability is limited or excluded, this shall also apply to personal liability on the part of the Vendor's employees, representatives or agents.
XII. Copyright and Rights of Use
1. The Software (program and manual) supplied by the Vendor is protected by copyright. All rights to the Software as well as to any other documents provided within the context of the initiation and execution of the contract are the exclusive property of the Vendor or ATLAS.ti.
2. The Reseller shall not be entitled to change or obscure in any manner any copyright notices, trademarks, other legal reservations, serial numbers or other features used for program identification purposes.
3. The Reseller shall be entitled to transfer the Software only to such parties who have agreed to adhere to the ATLAS.ti Conditions of Use in a legally binding manner. These conditions are available online from the ATLAS.ti web site at any time for viewing and printing.
4. Translation, adaptation, arrangement, any other reworkings and other forms of distribution of the Software (offline or online) as well as its rental and lending require the written consent of ATLAS.ti.
5. Both the Vendor and ATLAS.ti GmbH shall be entitled to revoke the license rights for a material reason. A material reason shall, in particular, be deemed to exist if the Reseller is in default with the payment of a substantial part of the remuneration or if the Reseller fails to abide by the terms and conditions of the license and fails to immediately remedy such default after the Vendor's written request, including the Vendor's announcement to terminate the license otherwise. In the event that the license is terminated, the Reseller shall return to ATLAS.ti GmbH the original Software as well as any copies thereof, and delete any programs stored. At the Vendor's request, the Reseller shall confirm in writing that he has returned such Software and deleted such programs as aforestated.
XIII. Term; Consequences of a Termination Hereof
1. This contract begins with the activation after registration of the Reseller on the Verndor's web site. It shall be made and entered into for an indefinite term.
2. This contract can be terminated by both parties effective as of the end of the month subject to the period of notice set forth in Section 89, subsection 1 of the German Commercial Code [§ 89 Abs. 1 HGB].
3. Each party hereto shall be entitled to terminate the contract without notice for a material reason. A justified important cause for termination without notice shall be deemed to exist if the trust existing between the parties hereto is impaired by the other party to the contract to such an extent the that part terminating the contract cannot accept a continuation of the Reseller contract.
4. Any termination hereof shall not be valid unless made in writing; an email shall be deemed to be sufficient.
5. In the event of a termination hereof, Resellers having their place of business outside the Federal Republic of Germany shall not be entitled to raise equalisation claims.
XIV. Non-Competition Clause
1. During the term hereof, the Reseller shall not be entitled to participate either directly or indirectly in any ATLAS.ti GmbH competitor company. This shall not include investments in public limited companies listed on the stock exchange as long as such investment does not grant to the Reseller significant influence on the company.
1. In the event that the Reseller violates his obligations under sections 3. (3); 12. (3) to (5); 14 hereto before, he shall pay to the Vendor for each culpable violation a penalty, to be determined according to the Vendor;s reasonable discretion and in the case of dispute to be examined by a court having jurisdiction.
2. Notwithstanding the foregoing, the Vendor shall also be entitled to terminate this contract without notice for a material reason due to violations of this contract and to enforce its claims for information and damages and/or forbearance.
1. The Reseller is herewith informed that the Vendor collects, stores, processes and – if necessary – passes on to third parties the Reseller's data to the extent necessary for the performance hereof and subject to the applicable data protection and data privacy laws.
XVII. Place of Jurisdiction/Applicable Law
1. The place of jurisdiction and place of performance for all claims and disputes arising in conjunction with the business relationship between the parties on the grounds of these Terms and Conditions shall be Cologne, Germany.
2. This contract shall be exclusively subject to the laws of the Federal Republic of Germany.
3. The language of this contract shall be German.
XVIII. Ancillary Agreements
1. In the event that a provision of this contract is or becomes invalid or unenforceable, such invalidity or impossibility to enforce shall not affect the validity of the remaining provisions hereof. Instead, the parties hereto agree to replace such invalid or unenforceable provision with a valid or enforceable provision that reflects in as far as possible the economic and immaterial intent of the contract.
2. Any act deviating from the contract shall neither modify nor delete any agreed rights, nor shall it establish any new rights or obligations.