Licensing agreement

Understanding Your Software License Agreement

General Conditions
1 Duration and Scope of Use
2 Payment and Default
3 Copyright and Usage Rights
4 Customer Obligations
5 Limitation of Liability

Program Name: portier®Vision
Rights Holder and LICENSOR: portier Global Pty Ltd

The software package includes the computer program mentioned above on a machine-readable medium and an associated user manual. Both the program and the user manual are protected by copyright. By acquiring the software package (hereafter referred to as the PROGRAM) for rental or purchase, the LICENSOR grants the CUSTOMER the right to use the PROGRAM under the following conditions. Any further use or exploitation is excluded. These usage terms also apply to all updates, supplements, internet-based services, and support services offered by the LICENSOR. This offer is exclusively for business customers.

General Conditions

§ 1 Duration and Scope of Use

  1. The LICENSOR provides the PROGRAM to the customer for the duration of the agreed rental period unless a purchase has been expressly agreed.
  2. The CUSTOMER is entitled to use the PROGRAM for their own purposes on the data processing units of a local network at an agreed location. The location is defined as the entire area covered by a postal code. Within this location, the PROGRAM can be used at any number of network locations owned by the CUSTOMER.
  3. The PROGRAM and services provided by the LICENSOR may be changed, updated, or discontinued at any time without liability to the customer or third parties. The LICENSOR will make reasonable efforts to inform the CUSTOMER of any changes affecting them in advance. If a service is discontinued, the customer will be notified in advance and will receive a pro-rated refund for any fees paid in advance for the unused service.
  4. The LICENSOR provides the software exclusively based on these terms. The CUSTOMER’s contractual terms do not apply, even if the LICENSOR does not expressly object to them.

§ 2 Payment and Default

  1. The LICENSOR provides the PROGRAM to the customer in exchange for the agreed fees.
  2. All prices are in Euros, excluding VAT.
  3. Payments are due within 14 days of invoicing, without deduction.
  4. All usage rights as per § 3 are contingent on timely and full payment.
  5. If the customer defaults on payment, all claims of the LICENSOR become due immediately, and the LICENSOR is entitled to prohibit further use of the PROGRAM.

§ 3 Copyright and Usage Rights

  1. The PROGRAM provided by the LICENSOR is protected by copyright. All rights to it and any other documents provided to the CUSTOMER during the contract initiation and execution are exclusively owned by the LICENSOR.
  2. The CUSTOMER is entitled to duplicate the PROGRAM within the scope of contractual use. They may load the software into the working memory and onto the hard drives of the hardware they use and utilize it at the location on any number of network stations. The CUSTOMER is authorized to produce a corresponding number of unaltered copies from the original copy of the PROGRAM by downloading from the memory of the computer (server) supporting network operations. Each of these copies may only be used in accordance with the terms of this contract.
  3. The CUSTOMER may create necessary backup copies for secure operation. These must be marked as such and (where technically possible) provided with the copyright notice of the original carrier. The user manual may only be copied for internal operational purposes.
  4. Modification of the PROGRAM is only permitted with prior explicit consent from the LICENSOR, such as for intended use, connecting the PROGRAM with other programs, and error correction. Company names, trademarks, copyright notices, and other reservations of rights contained in the PROGRAM must not be altered and must be included in modified or edited versions of the PROGRAM.
  5. Reverse engineering (decompiling) of the program code is permitted with explicit consent from the LICENSOR, if and to the extent it is essential for obtaining the necessary information to establish the connection of the PROGRAM with other programs, and if the following conditions are met:
    • The actions are performed by the CUSTOMER, another person authorized to use a copy of the PROGRAM, or a person authorized to act on their behalf;
    • The information necessary for connecting the programs is not readily accessible to those mentioned above;
    • The actions are limited to parts of the original PROGRAM necessary for establishing the connection with other programs;
    • The obtained information is not used for other purposes;
    • It is not passed on to third parties unless necessary for establishing the connection with other programs;
    • It is not used for any other actions that infringe copyright.

§ 4 Customer Obligations

  1. Within their area of responsibility, the CUSTOMER is obliged to take all necessary measures to ensure contractual use of the PROGRAM.
  2. The CUSTOMER is responsible for securing their data according to current technological standards, particularly for creating and storing backups.
  3. The CUSTOMER is required to take appropriate measures to protect the PROGRAM from unauthorized access by third parties.

§ 5 Limitation of Liability

  1. The LICENSOR, its agents, employees, and vicarious agents (hereafter collectively referred to as LICENSOR) are liable, regardless of the legal basis, exclusively for intent and gross negligence, unless it involves the culpable violation of essential contractual obligations or the breach of a quality guarantee. An essential contractual obligation is one whose fulfillment is necessary for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely.
  2. The LICENSOR is not liable for improper application or installation of the PROGRAM by the CUSTOMER. Specifically, the LICENSOR is not liable if the CUSTOMER does not follow the instructions contained in the manual for using the PROGRAM.
  3. Except in the case of culpable violation of essential contractual obligations and except for gross negligence or intentional breach of contract, the LICENSOR is not liable for lost profits, missed savings, indirect damages, and/or consequential damages.
  4. Except in cases of gross negligence or intentional breach of contract, the LICENSOR’s liability is limited to the damage that was reasonably foreseeable at the time of contract conclusion.
  5. Liability for culpable harm to life, body, or health and any mandatory statutory liability remain unaffected by the aforementioned limitations on liability.

§ 6 Limitation Period

  1. Customer claims due to material or legal defects (§ 10) expire one year after delivery for new items and six months after delivery for used items. If the legal defect consists of a third party’s property right, which allows the software to be claimed, statutory limitation periods apply.
  2. For other customer claims from contract and from a tortious act (§ 311 paragraph 2 BGB), a limitation period of one year from the statutory start of the limitation period applies. Claims expire at the latest upon the expiry of the statutory maximum periods (§ 199 paragraph 3, paragraph 4 BGB).
  3. For personal injuries (including violation of freedom) as well as in cases of intent, deceit, gross negligence, guarantees, and claims under the Product Liability Act, statutory limitation periods apply.

Special Conditions for Rental

§ 7 Rental Item

  1. “Rental Item” refers to the PROGRAM provided by the LICENSOR for rental purposes, including manual and updates.
  2. Unless otherwise agreed, the rental period begins at the moment the rental item is made available by the LICENSOR and the CUSTOMER has first registered with the LICENSOR with the corresponding access authorization. The CUSTOMER receives confirmation of the start of the rental period.

§ 8 Material and Legal Defects and Liability

  1. The CUSTOMER is liable for all damages to the rental item that occur during the rental period, unless the damage is due to ordinary wear and tear from contractually appropriate use.
  2. During the rental period, the CUSTOMER is responsible for proper handling, timely maintenance, and care of the rental item, especially adhering to operating instructions and regulations.
  3. The CUSTOMER must immediately report any defects, malfunctions, and necessary repairs to maintain the functionality of the rental item to the LICENSOR. The defect notification must include information about the nature of the error, if applicable, the module in which the error occurred, and the actions undertaken when the error appeared. Changes and repairs to the rental item may only be made by the LICENSOR or a person commissioned by them.
  4. Functionality impairments resulting from hardware and software environments provided by the CUSTOMER, misuse, external harmful data, disruptions of computer networks, or other reasons originating from the CUSTOMER’s risk area are not considered defects.
  5. A minor reduction in usability does not constitute a defect.

§ 9 Termination

  1. The rental agreement is concluded upon registration (see § 7.2) for one year and can first be terminated with a notice period of six weeks at the end of the initial term. Thereafter, the contract automatically extends by another year if not terminated at least six weeks before the end of the respective contract term.
  2. The right to terminate for cause remains unaffected.
  3. Every termination must be in writing.
  4. Upon expiration of the agreed rental period, all usage rights automatically expire. The CUSTOMER is obliged to immediately and permanently cease using the rental item, delete the program completely at all locations, and destroy all copies. The CUSTOMER’s access rights to the PROGRAM will be revoked, where possible. The CUSTOMER is obliged to return the rental item without delay.
  5. § 545 BGB is excluded. However, the CUSTOMER owes the corresponding rent as compensation (use) until the actual return of the hardware.

Special Conditions for Purchase

§ 10 Material and Legal Defects

  1. The LICENSOR provides the PROGRAM to the CUSTOMER free from material and legal defects. Functionality impairments resulting from hardware and software environments provided by the CUSTOMER, misuse, external harmful data, disruptions of computer networks, or other reasons originating from the CUSTOMER’s risk area are not considered defects.
  2. A minor reduction in usability does not constitute a defect.
  3. In the case of unauthorized modifications to the PROGRAM made by the CUSTOMER, the LICENSOR provides no warranty unless the CUSTOMER proves that the modification is not the cause of the reported defect.
  4. The LICENSOR provides a warranty for material defects by remediation, at their discretion, either by correcting the defect or providing a replacement. Remediation may include providing a new version of the program or showing ways to avoid the impacts of the defect. The CUSTOMER must accept a new program version even if it leads to a reasonable adaptation effort.
  5. Remediation of legal defects occurs by providing the CUSTOMER with a legally flawless opportunity to use the software. The LICENSOR may replace the affected PROGRAM with an equivalent program that meets contractual specifications if this is acceptable to the CUSTOMER. If third parties assert rights against the CUSTOMER, the CUSTOMER must inform the LICENSOR immediately in writing. The LICENSOR will then choose, in consultation with the CUSTOMER, to defend or settle the claims. The CUSTOMER may not acknowledge third-party claims on their own.
  6. If remediation fails, the CUSTOMER has the right to reduce the payment or withdraw from the contract.

§ 11 Inspection and Notification of Defects

  1. The CUSTOMER is obligated to promptly inspect the PROGRAM and report defects in writing with a detailed description (§ 377 HGB).
  2. A prerequisite for remediation is the reproducibility or detectability of the defects. The defect notification must contain information about the nature of the error, the module in which the error occurred, and the actions undertaken when the error appeared.
  3. The defect notification must be addressed exclusively to: portier Global Pty Ltd, 17 Hinterland Drive, Little Mountain QLD 4551, Australia.

§ 12 Usage Rights and Transfer of the Program

  1. In the case of purchase, the CUSTOMER receives a non-time-limited right to use the PROGRAM. Otherwise, the regulations according to § 3 of these license and usage terms apply.
  2. The CUSTOMER is entitled to transfer the PROGRAM in its entirety along with a copy of these conditions to a third party if the third party agrees to the continued validity of the license and usage conditions.
  3. If the CUSTOMER transfers the PROGRAM to a third party, their right to use the PROGRAM expires. This right transfers to the acquirer. The CUSTOMER is obliged to immediately and permanently cease using the PROGRAM, delete it completely, and destroy all copies. The CUSTOMER must hand over the original data carriers and manuals to the third party and is not entitled to retain any copies or partial copies, modified or edited versions.
  4. The authorization does not extend to the transfer of copies or partial copies of the PROGRAM, nor to the transfer of modified or edited versions or copies or partial copies thereof.
  5. All other forms of exploitation of the PROGRAM, particularly translation, editing, arrangement, other modifications (except for the legal exceptions according to §§ 69d, 69e UrhG), and other distributions (offline or online), as well as its rental and lending, require the prior written consent of the LICENSOR.

§ 13 New Versions / Updates

Upon availability of a new version of the PROGRAM, the CUSTOMER has the right to exchange the existing PROGRAM for a new version of the PROGRAM at a charge. The LICENSOR will charge the listed update price for this exchange. The exchange covers the PROGRAM in its entirety, as acquired by the CUSTOMER. With the exchange, the CUSTOMER’s entitlement to use the previous PROGRAM or parts thereof expires. The obligation to delete and destroy according to § 12.3 applies accordingly.

Final Provisions

§ 14 Data Protection

The CUSTOMER is informed that the LICENSOR processes and stores personal data obtained during the business relationship in accordance with the provisions of the EU General Data Protection Regulation and the Federal Data Protection Act. Reference is made to the separate data protection declaration of the LICENSOR.

§ 15 Final Provisions

  1. The CUSTOMER may only offset claims by the LICENSOR if the CUSTOMER’s counterclaim is undisputed or has been legally established. Excluded from the prohibition of offsetting are only claims from warranties or the assumption of a guarantee.
  2. The CUSTOMER may only assert a right of retention insofar as it is based on claims from the same contractual relationship.
  3. Without the express written consent of the LICENSOR, the CUSTOMER is not authorized to assign claims from the contractual relationship to third parties.
  4. The General Terms and Conditions of the LICENSOR apply additionally, insofar as no deviating regulations have been made in these license and usage conditions.
  5. These licensing provisions and the underlying contract between the LICENSOR and the CUSTOMER are subject to the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods and the provisions on private international law.
  6. The place of performance and exclusive jurisdiction for all disputes arising from or in connection with these licensing conditions or the underlying contract is the seat of the LICENSOR, provided that the contractual partner is a business, a legal entity of public law, or a special fund under public law.
  7. Should individual provisions of these licensing conditions be or become ineffective, this shall not affect the validity of the remaining provisions. An alternative regulation, which comes closest to the purpose intended by the ineffective provision, shall replace the ineffective provision.
  8. These license conditions represent the comprehensive agreement between portier Global Pty Ltd and the CUSTOMER regarding the use of the portier®Vision PROGRAM. They replace all previous discussions, understandings, and agreements related to the PROGRAM’s license and usage. This document, finalized in December 2023 by portier Global Pty Ltd, underscores the mutual understanding and legal framework within which the PROGRAM is provided and used, ensuring clarity and protection for both parties involved in this licensing agreement.