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General terms and conditions for H+W ConsultGmbH
for software licence agreement
Version: Feb 2014
Deliveries of software and the enclosed documentation shall be exclusively governed by the terms and conditions of H+W Product GmbH (hereinafter H+W). Any deviating conditions of the contractual partner shall not impose any obligation on H+W, even if they are not expressly rejected by H+W once again when received by H+W.
Offers from H+W are non-binding. An order by the contractual partner is an offer to H+W.
The terms and conditions of H+W also apply to all future transactions with the contractual partner.
H+W shall guarantee the contractual partner a personal, non-transferable and non-exclusive licence to use the purchased product at one workplace or in the event of a network authorisation, on a single network up to the specified user total.
The purchaser is entitled to transfer the product from one system (computer or network) to another system, provided he/she uses only one copy of this product on a system and completed deletes the program from the other system.
The purchaser acknowledges the copyright protection of the supplied software product, including the user documentation and additional documents supplied.
In principle, H+W provides the supplied software products as object programs. The purchaser is prohibited from electronically transferring the source code of this product, reverse-engineering it, decompiling it into the original or assembly language or decoding it in any other way in order to transfer it from one computer to another via the network or, for a network product, from one network to another. It is also prohibited, without express consent, to modify the software or add other products, unless otherwise agreed.
The production of copies, transcriptions or other reproductions of the software products or documentation is only allowed for internal use and for in-house safeguarding and documentation purposes. In all other cases, the production of copies, transcriptions or other reproductions is prohibited, particularly any distribution of copies to third parties.
III. Prices/Offsetting/Rights of retention
The H+W prices are as specified in the respectively valid price list.
The contractual partner shall only be entitled to offsetting rights when his/her counterclaims have been stated as legally binding, undisputed or acknowledged by H+W, otherwise he/she shall be entitled to exercise a right of retention in so far as his counterclaim is based on the same contractual relationship. Offsetting is also deemed legitimate, when a counterclaim justifying a right of retention as defined by clause 2 is based on a claim for damages.
If the contractual partner delays any payment, H+W is entitled to charge default interest amounting to 8 % over the respective base interest rate p. a. If H+W is capable of proving greater damage due to the default, H+W is entitled to exercise a claim for the same. However, the contractual partner is also entitled to prove to H+W that H+W has incurred no or lesser damages as a result of the payment default.
V. Delivery/Delivery deadlines
Delivery deadlines shall be extended to a reasonable extent for action in the context of industrial disputes, particularly strikes and lock-outs as well as the occurrence of other unforeseeable hindrances, which are beyond the control of H+W, provided such hindrances can be verifiably be shown to have a significant impact on the production or delivery of the delivery item. This also applies if the circumstances affect subcontractors. H+W shall immediately notify the contractual partner of such circumstances. If it becomes unfeasible for either party to continue implementing the contract, the party concerned may withdraw from the contract in this case.
Unless otherwise agreed, with the transfer of the goods to a shipper or freighter, or no later than the time leaving the warehouse or – for drop shipments – the delivery van, the risk shall transfer to the contractual partner. The transfer of risk to the contractual partner shall also be implemented for prepaid and free-house deliveries.
Partial deliveries are permissible within the scope of the specified delivery deadlines, provided no disadvantages arise from the use of the same.
VI. Retention of title
The provided software remains the property (conditional commodity) of H+W pending fulfilment of all obligations arising out of the delivery contract. If the contractual partner is a contractor as defined by § 24 p. 1 No. 1 General Terms and Conditions Act or a legal entity under public law or a special fund under public law, the software shall remain the property of H+W pending receipt of all payments pursuant to the business relationship with Customer.
2. The claim of the contractual partner to any resales of the conditional commodity is herewith assigned to H+W. They shall be utilised as collateral in the same manner as the conditional commodity. If the conditional commodity is sold by the contractual partner along with other goods H+W have not delivered, the assignment of the receivable from such resale transactions shall only apply to the amount of the resale value of the respectively sold conditional commodity.
3. Any third party access to the goods and claims belonging to H+W shall be immediately notified by the contractual partner.
Where reference is made in this clause to ownership, this applies correspondingly for the transfer of usage rights/licence rights for the software product, and these rights shall thus only be transferred subject to a condition precedent.
VII. Liability for defects/Liability limitation/Time-barring
The contractual parties agree that it is not possible to develop programs such that they will work perfectly under all conditions of use. This agreement does not affect the obligation of the user to process the program in an optimal way.
The statutory warranty conditions shall apply, unless otherwise specified elsewhere.
The scope of any claims for rectification shall be limited to the subsequent delivery of a new program / or reworking. In the event of failure to rectify, the contractual partner may reduce the price or withdraw from the contract. The claim for damages due to defective performance is – subject to 6. - excluded.
All warranty rights are excluded, if obvious defects are not signalled within a deadline of two weeks from delivery of the program. In this case, the timely transmission of the complaint within the specified grace period is sufficient for compliance. The burden of proof to show receipt remains unaffected. § 377 German Commercial Code remains unaffected.
If the contractual partner is a contractor, claims for defects shall be time-barred in one year. The relevant legal provisions apply for the start of statutory limitation.
For damages resulting from the destruction of life, personal injury or health damages, H+W accepts liability in accordance with the legal provisions. For other damage – subject to clause 3 – liability shall only be admitted for intent and gross negligence of the user, or his/her statutory agent or assistant or vicarious agent. For other damage caused by negligence, which arises due to infringement of a key contractual obligation, H+W shall also be liable, limited, however, to foreseeable damage in such cases. The liability pursuant to the Product Liability Act remains unaffected by the existing regulations.
VIII. Verbal ancillary agreements
Any modifications made to the contract must be made in writing. There are no verbal ancillary agreements.
IX. Place of performance/Place of jurisdiction/ Applicable law
If Customer is a businessperson, a legal entity under public law or a special fund under public law, Tostedt shall be the place of jurisdiction. The same applies if the contractual partner has no general domestic place of jurisdiction.
Clause 1 does not apply if the legal dispute concerns any claims other than those involving an economic interest or when a single place of jurisdiction is established for the case.
5. The place of performance for delivery and payment is Buchholz, the registered office of H+W.
The law of the Federal Republic of Germany shall govern all legal relationships between H+W and Customer with the exception of the Vienna Sales Convention 1980 (CISG), even if Customer has registered his/her company overseas.