This Form is subject to BISDNs Data Protection policy
Standard Contractual Terms
BISDN GmbH, Körnerstraße 7 – 10, 10785 Berlin (hereafter “BISDN”).
These Standard Terms apply to all purchases of software as further described in the relevant order form (the “Order”, the purchased software hereafter referred to as the “Software”, these Standard Terms and the Order together referred to as the “Agreement”) and support services in connection with the Software (hereafter referred to as “Support”) by the customer (“Customer”) or an affiliate of the customer (“Affiliate”) within the meaning of section 15 of the German Stock Corporation Act (“AktG”).
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- Subject Matter
Subject Matter of these Standard Contractual Terms and the Agreement are the conditions under which BISDN provides its services to the Customer. This includes Support services as well as the provision of the BISDN Linux image (hereafter referred to as “Software”).
Subject to the following terms, BISDN GmbH (“BISDN”) grants to Customer a perpetual, worldwide license, with respect to the number of copies, to the Software, which includes multiple software components. Each software component is subject to the respective license conditions. The license conditions for each software component are located in the software component’s source code and permits the Customer to run, copy, modify, and redistribute the software component (subject to certain obligations in some cases), both in source code and binary code forms, with the exception of (a) certain binary only firmware components and (b) the images identified in Section 6 below. The license conditions for the binary only firmware components are located with the components themselves.
2.1 Customer and Affiliate(s) may submit Orders to BISDN, which may be sent via mail, email attachment, electronic procurement systems, and other means as the parties may decide from time to time (the “Order”). Each Order provided by Customer to BISDN must reference these Standard Terms and the BISDN quote.
Customer and an Affiliate who submits an Order shall both be bound by this Agreement in relation to that Order. Customer shall provide any Affiliate who submits an Order hereunder with a copy of this Agreement (although failure to provide such copy shall not limit or in any way affect Customer’s or its Affiliate’s obligations or liability hereunder), and all terms and conditions of this Agreement shall apply to that Affiliate.
2.2 Orders are subject to BISDN’s acceptance, and to these Standard Terms. Such acceptance can be declared via email or in writing, or by sending an invoice with regard to the respective Order. For each initial Order of the Software, BISDN will make available either an ONIE image of the product, or an appliance with the product pre-configured on this appliance. Customer shall, if applicable, be responsible for obtaining all licenses, permissions, or other governmental approvals necessary for the intended use. BISDN shall have no obligation to deliver the Software, additional licenses, Services or technical data, and shall otherwise have the right to withhold performance under this Agreement (i) to the extent it has knowledge of any licenses, permissions, or other governmental approvals required under then-current applicable laws and/or regulations have not been properly obtained by the respective party(ies), or (ii) if Customer is in arrears on any payments rightfully due to BISDN or is otherwise in breach of this Agreement.
3.1 Subject to payment of all service fees, during any agreed support term, BISDN’s services include the following:
3.1.1 Packaging: BISDN packages the Software and provides installable binaries to the Customer.
3.1.2 Support: Customer’s designated employees, as named to BISDN upon conclusion of an Agreement, shall have direct access to BISDN’s ticketing system during normal business hours. BISDN shall use commercially reasonable efforts to provide error corrections where necessary.
Pricing and further support details are laid out in the SLA document. BISDN will provide Support hereunder for the current full version of the Software minus 1. Version in this context shall mean any new edition of the Software with a full number (i.e. 1.0, 2.0 etc.). In the example of full version number 2,x, support will be provided for versions number 2 and number 1,x.
3.1.3 Updates: In addition to error corrections, BISDN shall provide Customer with updates, as regularly offered by BISDN.
3.2 Notwithstanding BISDN’s support obligations hereunder, BISDN shall have no responsibility or liability of any kind arising or resulting from:
3.2.1 Customer’s failure to: (i) correctly install updates or other modifications to the Software provided by BISDN, (ii) prepare a computing environment that is required for the use of the Software as specified by BISDN, (iii) grant access and security authorisation, if needed, or (iv) provide necessary communications mechanisms as requested by BISDN;
3.2.2 Errors resulting from misuse, abuse, negligence, or improper use of all or any parts of the Software or any other part of the sold product interacting with the Software; or problems to or caused by products or services not provided by BISDN.
3.2.3 Software or product modification, amendment, revision, or change by any party other than BISDN or BISDN’s authorized representatives; or
3.2.4 Electrical failure, internet connection problems, or data or data input, output, integrity, storage, back-up, and other external and/or infrastructure problems, which shall be deemed under Customer’s exclusive control, and Customer’s sole responsibility.
3.3 If Customer desires BISDN to install and configure any updates, or BISDN provides services as a result of any conditions specified in section 3.2, or otherwise provides support services to Customer outside of the services described above, BISDN may charge Customer for such services at BISDN’s then current service fee rate.
- Payments and Invoicing
4.1 BISDN shall invoice Customer all amounts due as agreed in the order. Agreed Support fees usually cover a Support term of one year, (i) upon delivery, or (ii) if no delivery is necessary, upon BISDN’s receipt and acceptance of the Order. BISDN may invoice Customer for each renewal Support term prior to such renewal, and all other fees, assessments and expenses provided for under this Agreement as performed and/or incurred. Customer shall pay all fees and other amounts due to BISDN hereunder within fourteen (14) days after the date of BISDN’s invoice and without deductions, except with respect to any amount disputed in good faith where prior notice is provided to BISDN detailing the amount and reason for the dispute. The parties will immediately negotiate in good faith to resolve any dispute.
4.2 All amounts due to BISDN hereunder are net amounts, exclusive of, and Customer is responsible for paying, all duties, sales, use or value added taxes, customs duties, GST, tariffs, or other similar taxes, assessments, or excises, however designated or levied, (except for taxes on BISDN’s net income), whether payable directly by or indirectly through BISDN in compliance with applicable law.
4.3 Customer shall keep complete and accurate records of all its obligations hereunder. Customer shall allow BISDN or its agent reasonable access to audit Customer’s records and systems solely to verify general compliance with the terms and conditions of this Agreement, including, without limitation, Customer and/or BISDN running BISDN provided utilities to determine actual usage of the Software. BISDN shall conduct such audits during Customer’s normal business hours with reasonable notice, or as otherwise reasonably requested by Customer.
5.1 Each party’s maximum liability arising out of or in any way connected to this Agreement, whether in contract, tort (including negligence), statutory or otherwise, shall be expressly limited as follows:
5.1.1 In no event shall either party or any of their employees or agents have any liability for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise):
- a) loss of revenue;
- b) loss of actual or anticipated profits (including for loss of profits on contracts);
- c) loss of the use of money;
- d) loss of anticipated savings;
- e) loss of business;
- f) loss of opportunity;
- g) loss of goodwill;
- h) loss of reputation;
- i) loss of, damage to or corruption of data;
- j) costs of procurement of substitute products or services;
- k) any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is of the type specified in (a) –(j) above);
5.1.2 BISDN shall not be responsible or liable for recovery of any data, and Customer acknowledges that Customer is responsible for any and all data, data backup, and data recovery;
5.1.3 BISDN shall not be liable for any other losses in an amount exceeding the fees paid hereunder during the twelve (12) months preceding the date upon which the liability arose;
5.2 Except for the limitations stated in section 5.1, statutory law shall apply with regard to the liability of the parties.
- Intellectual Property, Trademarks
The Software is owned by BISDN and other licensors and are protected under copyright law and under other laws as applicable, unless indicated otherwise in the respective Software component. Title to BISDN’s Software and any component of it, or to any copy, modification, or merged portion shall remain with BISDN and other licensors, subject to the applicable license.
The “BISDN” trademark and the “BISDN” logo are registered trademarks of BISDN in Germany. These Standard Contractual Terms do not permit anyone to distribute the Software or their components using BISDN’s trademarks, regardless of whether the copy has been modified or not.
Users may make a commercial redistribution of the Software including the registered trademarks of BISDN only if (a) permitted under a separate written agreement with BISDN authorizing such commercial redistribution, or (b) removing and replacing all occurrences of BISDN trademarks.
Modifications to the software may corrupt the Programs.
7.1 “Confidential Information” within the meaning of this Agreement shall be any information or data labelled as confidential or where the need to keep it confidential is obvious due to the circumstances. The unauthorized disclosure or use of Confidential Information of a disclosing party or of a disclosing party’s third-party licensors, and all information and services related thereto, would cause great injury and harm to the owner thereof. Therefore, each party agrees to take all appropriate action to ensure the confidentiality and security of the other party’s Confidential Information, but in any event no less than the same standard of care it uses to protect its own Confidential Information of like kind and value. Without limiting the generality of the foregoing, and in addition to Customer’s obligations in this section 7, Customer and BISDN each agree that it and its personnel: (i) shall maintain the other’s Confidential Information in the strictest confidence, including compliance with reasonable remote access security requirements; (ii) shall not disclose, display, publish, transmit, or otherwise make available such Confidential Information or take the benefit thereof, in whole or in part, except in confidence to its own personnel on a need-to-know basis; and (iii) except as expressly permitted hereunder, shall not copy, duplicate, replicate, transform, or reproduce such Confidential Information. Notwithstanding anything to the contrary in this section 7, neither party shall be liable to the other for damages resulting from disclosure of any Confidential Information required by law, regulation or valid court order; provided prior written notice is given to the other party sufficiently in advance of such required disclosure to allow the other party to respond and take reasonable and lawful action to avoid and/or minimize the degree of such disclosure or seek appropriate protective orders.
- Term and Termination
8.1 This Agreement shall commence upon delivery of the Software and shall continue unless earlier terminated as provided in this section 8.
8.2 As regards the Services, the agreement shall continue for one year (initial term).
8.3 Other than provided for in section 8.1 and 8.2, this Agreement may be terminated as follows:
8.3.1 By BISDN immediately if Customer breaches section 6 or 7; or
8.3.2 By either party for material breach hereof which has not been cured within thirty (30) days after written notice of such breach; or
8.3.3 By either party at any time if the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy or insolvency.
8.4 Termination shall have the following effects:
8.4.1 Termination of Services shall not constitute termination of this Agreement or any Order.
8.4.2 Upon termination of this Agreement all fees due to BISDN shall be paid. Thereinafter, Customer’s license rights granted in any Product licensed hereunder shall survive such termination; provided (if not regulated otherwise in the respective applicable license), (i) this Agreement has not been terminated by BISDN for Customer’s breach, (ii) Customer continues to comply with all terms and conditions surviving termination of this Agreement, and (iii) Customer’s use of the Software does not exceed the license rights granted for each component. In the event of any failure of (i), (ii) or (iii) at the time of, or subsequent to termination of this Agreement, (a) all rights and licences granted hereunder shall immediately terminate and any uses by or on behalf of Customer must immediately cease, and (b) Customer shall immediately delete all copies of the Software, and provide to BISDN certification of the foregoing.
8.5 Section 6 and 7 shall survive the termination of this Agreement.
9.1 This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany, and shall be subject to the jurisdiction of the courts of Berlin. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement or the parties
9.2 If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect, and the parties agree to negotiate in good faith an amendment to replace the rights and obligations contained in such invalid or unenforceable provision to cause it to be valid and enforceable; provided, if the parties are unable to agree on such amending terms, a court of competent jurisdiction or arbitrator (as applicable) shall so amend and restate such provision in light of the parties’ apparent original intent. The invalidity or unenforceability of any provision shall not constitute a failure of consideration hereunder. Any failure or delay in exercising, or any single or partial exercise of, any right or remedy by either party hereto shall not be deemed a waiver of any further, prior, or future right or remedy hereunder, including the right of such party at any time to seek such remedies as may be available for any breach or breaches of such term or condition.
9.3 All notices or other communications required hereunder shall be made in writing and shall be deemed to be effectively given: (i) if hand delivered, when received; (ii) if faxed, on the date of the sending party’s receipt of confirmation of transmission; or (iii) if mailed for overnight delivery, when delivery by the overnight carrier is made, in each instance at the applicable address set forth in the Order. For the avoidance of doubt, notice given under this Agreement shall be validly served if sent by certified electronic mail. Each party may change its notices address by giving notice in the manner set forth herein.