Cygna Labs UK

General Terms and Conditions for the Licensing of Software

1. Scope

These General Terms and Conditions for the Licensing of Software (hereinafter referred to as “General Terms and Conditions”) apply to the entire business relationship between Cygna Labs UK Limited (hereinafter referred to as “Cygna Labs UK”) and Customer. If an order or other form contains proposals by the Customer with respect to additional or other terms and conditions (e.g. the Customer’s terms and conditions of purchase) or provisions or proposed amendments to these General Terms and Conditions, or if an order or other form by the Customer refers to such proposals, these are hereby rejected. They shall not be deemed to have been agreed upon, unless expressly acknowledged by Cygna Labs UK in writing with respect to the respective order. If orders placed and automatically accepted via the electronic ordering platform contain terms and conditions of purchase or other terms and conditions of the Customer, these terms and conditions shall also not be deemed to have been accepted and shall not apply.

1. Delivery of the products, passing of risk and ownership

Delivery periods and delivery dates are non-binding unless Cygna Labs UK and the Customer have expressly agreed in writing that they are binding. Delivery periods and delivery dates times do not constitute material contractual obligations unless Cygna Labs UK has agreed thereto in writing in advance. Cygna Labs UK may deliver the products at any time prior to the specified delivery time after timely notification to the Customer. Any claims for non-delivery shall be asserted against Cygna Labs UK within five business days as from invoicing. Partial deliveries shall be permissible unless otherwise agreed by the parties by mutual consent or partial deliveries are unreasonable for the Customer. Cygna Labs UK shall not be liable for any delay in delivery of the products, irrespective of its cause.

Provisions applying to distribution of standard or individual software (perpetual basis):

The shipment of the media on which the standard or individual software is provided shall, upon the Customer’s request, be made to the Customer’s registered office. In this case, any risk shall pass to the Customer as soon as Cygna Labs UK has handed over the goods to the shipping company. Accordingly, Cygna Labs UK shall not be liable for any errors occurring during delivery or for any loss, damage and/or destruction of goods during transportation.

Cygna Labs UK shall retain ownership to the media on which the standard or individual software is provided until full payment of the purchase price. The Customer shall inform Cygna Labs UK without undue delay if any rights to the goods are interfered with.

Provisions applying to licensed software (time-limited basis): In the case of a time-limited licensing of software originating from a manufacturer other than Cygna Labs UK, the Customer shall conclude a licensing contract directly with the manufacturer (for the term of the applicable order, on the basis of the manufacturer’s end user agreement, which the Customer must agree to). If Cygna Labs UK is involved in the conclusion of such a contract, this is done by Cygna Labs UK providing the Customer with an access key or code for the software in question for the period of authorised use of the software in question or by passing on another proof of authorisation (such as a token) from the manufacturer. If the Customer pays the licence fee for the software to Cygna Labs UK, the forwarding of the proof of authorisation constitutes Cygna Labs UK’s consideration. Cygna Labs UK shall have no further performance obligations towards the Customer; in particular, Cygna Labs UK shall not owe the provision or use of the software itself - the right to do so arises from the Customer’s direct contract with the manufacturer.

Provisions applying to software licensed on a time-limited basis from Cygna Labs UK: In the case of a time-limited licence of standard or customised software from Cygna Labs UK or its group companies to the Customer (hereinafter referred to as ”software licence”), a licence agreement shall be concluded between the Customer and Cygna Labs UK.

1. Warranty

Any warranty and right to the software provided differ depending on whether Cygna Labs UK provides the Customer with standard software (hereinafter referred to as “Standard Software”) or software which is individually designed (hereinafter referred to as “Individual Software”). The warranty for Standard Software is as provided for in the following clause 3.2 and the warranty for Individual Software is as provided for in clause 3.3:

Provisions applying to the licensing of Standard Software on a perpetual basis: The Customer is aware that Cygna Labs UK does not produce the Standard Software, but that Cygna Labs UK only acquires the Standard Software from a producer or pre-supplier for the purpose of licensing on a perpetual basis. In view of the foregoing, the following shall apply to the Standard Software:

Immediately after delivery, the Standard Software shall be carefully examined by the Customer at the Customer’s expense. The Customer shall notify Cygna Labs UK of any defects, wrong deliveries, short deliveries or excess deliveries without undue delay. Notice shall deemed to have been given without undue delay, if Cygna Labs UK receives such notice within a period of eight days after delivery of the respective Standard Software. Any defects not apparent (so-called latent defects) shall be notified to Cygna Labs UK in writing without undue delay once they have been detected.

If the delivered software is defective, Cygna Labs UK shall hereby assign to the Customer all warranty claims Cygna Labs UK has against its supplier to the extent such warranty claims concern defects. The Customer accepts this assignment. The Customer shall first take action against the supplier on the basis of the claims assigned. In case the supplier does not satisfy the warranty claims against the supplier are not enforceable, the Customer is required to furnish proof thereof to Cygna Labs UK and re-assign the claims to Cygna Labs UK.

If Cygna Labs UK is itself liable for defects, the Customer’s claims for defects against Cygna Labs UK shall, in principle, be limited to the remedy of defects or substitute delivery. Defects may also be remedied by handing over or installing a new programme version or a workaround. The right to choose between the aforementioned two options shall lie with Cygna Labs UK. Cygna Labs UK may carry out an adequate number – at least three – of repair attempts or substitute deliveries. If remedy of defects or substitute delivery is unsuccessful, the Customer has the right to rescind the agreement or reduce compensation. This right shall be limited to the delivered software concerned, unless such limitation would be unreasonable to the Customer because of the nature of the software owed.

Provisions applying to licensing Individual Software on a perpetual basis: Cygna Labs UK shall warrant that the Individual Software is free of errors – clause 3.2(c) above shall apply mutatis mutandis. Any defects shall be remedied during support. Consequently, Cygna Labs UK shall make available to the Customer work-around or corrected versions when the next version of the software is available. In this case, substitute delivery shall be replaced by re-production of the Individual Software owed under the agreement. If Individual Software is designed under a contract of service, the statutory warranty claims under English law shall exclusively apply.

Provisions applying to software licensing on a time-limited basis:

In the case of software licensed by Cygna Labs UK, Cygna Labs UK guarantees that the software is free of defects during the licence term and that its contractual use by the Customer is not restricted by third-party rights. The software is not subject to any defects that remove or more than insignificantly reduce the value or suitability for the normal use or the use assumed under the contract. If the defect does not or only insignificantly impair the functionality of the software, Cygna Labs UK shall be entitled to remedy the defect by delivering a new version, an update or upgrade within the scope of its version, update and upgrade planning, if any, to the exclusion of further claims for defects.

The Customer must carefully inspect the software licensed by Cygna Labs UK immediately after it is handed over for use at its own expense and report any defects, incorrect deliveries, shortfalls or excess quantities in accordance with clause 3.4(a) to inform us.

Defects of which the Customer notifies Cygna Labs UK in accordance with clause 3.4(b). Cygna Labs UK shall remedy such defects within a reasonable period of time within the scope of its technical capabilities. The specific type of defect rectification shall be at the discretion of Cygna Labs UK. In particular, Cygna Labs UK has the right to choose between rectification and replacement delivery. The defect may also be remedied by handing over or installing a new programme version or a workaround. This shall not affect the Customer’s statutory warranty rights.

Modifications or extensions to the software carried out by the Customer himself or by third parties shall invalidate the Customer’s claims for defects, unless the Customer can prove that the respective modification or extension is not the cause of the defect. Cygna Labs UK shall also not be liable for defects that are attributable to improper operation of the software, improper operating conditions or the use of unsuitable equipment when using the software by the Customer.

The Customer shall support Cygna Labs UK in the search for and rectification of defects. In particular, the Customer shall provide Cygna Labs UK with all necessary information and data in a complete and accurate form. Cygna Labs UK shall have no obligation to investigate in this respect. If necessary, the Customer shall temporarily provide Cygna Labs UK with suitable tools and grant Cygna Labs UK access to its affected systems.

The Customer is not entitled to claim a licence fee reduction by independently deducting the reduction amount from the current licence fee. The Customer’s right under the law of unjust enrichment to reclaim the excess licence fee paid due to a justified reduction, remains unaffected.

If the remedy of defects owed pursuant to clause 3.4(c) fails, the Customer shall be entitled to terminate the software licensing agreement immediately by notice in writing to Cygna Labs UK. The rectification of defects shall be deemed to have failed, in particular if the rectification of defects (i) is impossible for Cygna Labs UK or unreasonable for other reasons, or (ii) is seriously, finally and unjustifiably refused by Cygna Labs UK. Cygna Labs UK shall be entitled to make a reasonable number of attempts to rectify the defect, but at least three, before unsuccessful attempts to rectify the defect may make it unreasonable for the Customer to accept the rectification of the defect.

Any claims for defects against Cygna Labs UK shall become statute barred one year following delivery. Any claims for defects with respect to intangible work (in particular, Individual Software) shall become statute-barred one year after the Customer has obtained knowledge of the defect, at the latest, however, two years following delivery. The period of limitation shall not apply, if longer periods are prescribed by law, in case of a willful or grossly negligent breach of duties on part of Cygna Labs UK or in case of a fraudulent concealment of a defect as well as in cases of injury to life, body or health. The statutory provisions regarding suspension, suspension of expiry and recommencement of limitation shall remain unaffected.

The provisions of this Section 3 do not apply to contractual services or to the licensing of third-party software on a time-limited basis by Cygna Labs UK. In the case of contractual services, the statutory provisions shall apply; in the case of the licensing of third-party software on a time-limited basis, the warranty provisions agreed directly with the manufacturer in the Customer’s separate contract on the transfer of use shall apply.

1. Rights to software

Provisions applying to Standard Software licensed on a perpetual basis: Customer acknowledges that any Standard Software licensed on a perpetual basis is the intellectual property of the manufacturer or a third party. The scope of usage rights for the Standard Software licensed on a perpetual basis shall be as provided for in the respective producer’s terms of use to which Cygna Labs UK refers in its offer. Producers of Standard Software require that Customer accepts their End User License Agreement (“EULA”). Cygna Labs UK hereby draws Customer’s attention to such EULA. Customer shall be responsible for accepting the EULA. Cygna Labs UK points out that the producer and licensor make the usage rights for the software conditional upon the acceptance of the EULA. In view thereof, prior to purchasing a licence to the software, the Customer shall inform itself about the EULA. Cygna Labs UK is happy to provide the Customer with the applicable EULA in advance. If Customer rejects the EULA following the purchase of a licence to the software, the absence, if any, of any usage right shall not be deemed a defect of the software licensed and, in this case, Cygna Labs UK does not grant Customer a revocation right.

Provisions applying to Individual Software licensed on a perpetual basis: The Customer shall be granted for its own business purposes permanent and non-exclusive usage rights for any individual software designed and licensed on a perpetual basis by Cygna Labs UK, or for patches or other software developed by Cygna Labs UK which are made available for licensed on a perpetual basis during maintenance or support.

Provisions applying to software license on a time-limited basis:

If Cygna Labs UK licenses software to the Customer on a time-limited basis, or if Cygna Labs UK provides patches or other software created by Cygna Labs UK and licensed to the Customer on a time-limited basis within the scope of maintenance or support, the Customer shall receive limited, worldwide, non-exclusive, non-transferable and non-sublicensable rights of use to the software for its own business purposes for the duration of the relationship (licence term), unless otherwise agreed. Contractual use includes installation as well as loading, displaying and running the installed software. Insofar as this is absolutely necessary for the contractual use, the Customer is entitled to reproduce the installed software, e.g. to load it into the working memory or to make a backup copy by an authorised person. The Customer is not authorised to transfer the copy of the software provided to him or any backup copy made to third parties. The backup copy must be deleted by the Customer at the end of the contract term. The Customer is not authorised to modify or edit the software, unless the modification or editing is a rectification of a defect necessary for the contractual use of the software, with which Cygna Labs UK is in default. If licensed standard software is the intellectual property of a manufacturer and/or third party licensor, the provisions of section 4.1 shall apply accordingly.

Upon request and insofar as there is a legitimate interest in doing so, the Customer shall allow Cygna Labs UK or a third party commissioned by Cygna Labs UK to check whether the use of the licensed software is within the scope of the rights granted herein; the Customer shall support Cygna Labs UK to the best of its ability in carrying out such a check.

If the Customer violates one of the provisions regulated herein and Cygna Labs UK therefore terminates the licence relationship for cause, all rights of use granted shall immediately become invalid. In this case, the Customer must immediately and completely cease using the software, delete all copies of the software installed on his systems and delete any backup copies made or hand them over to Cygna Labs UK.

It is the Customer’s own duty to review if any patents are relevant and to ensure that patents are not infringed by third parties. The Customer shall indemnify Cygna Labs UK against all claims for patent infringement which may arise in connection with the import or use of the goods.

1. Limitation of liability

Any liability of Cygna Labs UK for any damage of any type whatsoever, including liability for defects already existing at the time of conclusion of the contract, shall be excluded. This exclusion shall not apply (a) to any damage caused by Cygna Labs UK intentionally or by gross negligence, (b) fraud, fraudulent misrepresentation or death or personal injury caused by the negligence of Cygna Labs UK, its officers, employees, contractors or agents, (c) breach of the obligations implied by section 12 of the United Kingdom’s Sale of Goods Act 1979 or section 2 of the United Kingdom’s Supply of Goods and Services Act 1982, (d) in the case of damages for which Cygna Labs UK has given a guarantee regarding the quality or service life of the software. Material contractual obligations shall mean all obligations whose fulfilment is required for the due performance of the agreement and on whose compliance the Customer regularly relies and may rely, and (e) any other liability which may not be excluded by law.

In the case of a negligent breach of material contractual obligations, Cygna Labs UK’s liability shall – with the exception of damage to life, body or health – be limited to typical damage foreseeable for Cygna Labs UK at the time of the conclusion of the agreement or the breach of the obligation.

Any claims for damages of Customer due to slight negligence by Cygna Labs UK in accordance with the provisions above shall in any event be excluded, unless they are asserted in court within a period of three months after Cygna Labs UK or its insurer has rejected the claim referring to the three-month period.

The aforementioned exclusions and limitations of liability in accordance with the provisions above shall also apply to Cygna Labs UK’s liability for its corporate bodies, employees and vicarious agents as well as to the personal liability of any of Cygna Labs UK’s corporate bodies, employees and vicarious agents.

1. Term and cancellation (for software licence on a time-limited basis)

Cygna Labs UK and the Customer conclude a contract for software licensing on a time-limited basis that is limited to the respective licence term. The right to terminate in accordance with clause 3.4(g) remains unaffected.

1. Final provisions

These General Terms and Conditions do not give rise to any rights under the United Kingdom’s Contracts (Rights of Third Parties) Act 1999 to enforce any term of these General Terms and Conditions.

The Customer shall not transfer its claims against Cygna Labs UK to a third party or assign such claims under statutory provisions or otherwise without the prior written consent of Cygna Labs UK.

If any provision of these General Terms and Conditions is deemed ineffective or unenforceable by a court of competent jurisdiction, the remaining provisions of these General Terms and Conditions shall remain in full force and effect.

These General Terms and Conditions are governed by laws of England and Wales. Application of the United Nations Convention on Contracts for the International Sale of Goods shall be expressly excluded. Exclusive place of jurisdiction for the agreements entered into with Cygna Labs UK shall be England.