PANDORA STUDIO's General Terms and Conditions
Zagreb, 31 March 2011
PANDORA STUDIO's General Terms and Conditions
Article 1 Conclusion of Contract and Contract Conditions
1.1. PANDORA STUDIO’s General Terms and Conditions, together with the PANDORA STUDIO List of Prices and Conditions for the Licensing and Maintenance of PANDORA STUDIO products (hereinafter: List of Prices and Conditions) are constituent parts of the PANDORA STUDIO Licence Agreement (hereinafter: the Contract) concluded between the PANDORA STUDIO and the Customer, and serve as its further clarification.
PANDORA STUDIO’s General Terms and Conditions define the relationship between the Customer and PANDORA STUDIO.
PANDORA STUDIO’s General Terms and Conditions shall be applied in accordance to the following hierarchy: (a) The Contract; (b) Master Price List; (c) PANDORA STUDIO’s General Terms and Conditions.
Special conditions shall be partly applied to the Software and the data of the third parties, delivered by PANDORA STUDIO with its Software and/or data.
Other conditions shall not form part of the Contract, even if PANDORA STUDIO does not explicitly object thereto in writing.
1.2. Items subject to the Contract, documents, proposals, test programs, etc. are the intellectual property of PANDORA STUDIO and may not be duplicated or made available to third parties.
If no contract is concluded between PANDORA STUDIO and the Customer, such items may not be used and must be returned or deleted.
Article 2 Selection of Products and Services
2.1. The Customer is familiar with the essential functional characteristics of the Software. The Customer shall bear the risk as to whether the Software meets its wishes and requirements. In cases of doubt, the Customer shall consult employees of PANDORA STUDIO or third party experts prior to concluding a Contract. Customer specifications must be submitted to PANDORA STUDIO in writing. Art. 13 shall apply in any cases of liability on the part of PANDORA STUDIO.
Article 3 Items to be Supplied
3.1. PANDORA STUDIO shall deliver the Software (programs, data and the corresponding documentation) according to the PANDORA STUDIO List of Prices and Conditions.
3.2. The programs shall conform to the descriptions in the handbook; PANDORA STUDIO shall not be required to supply any other program features. Descriptions in the user documentation, test programs, product and project descriptions are not binding assurances of features.
Assurances of features are only binding if confirmed by PANDORA STUDIO expressly and in writing.
Unless agreed otherwise, standard Software will be provided in the version current at the time of delivery.
3.3. Installation and training services are not included in the delivery and the price of Software.
3.4. Information on the technical capabilities and requirements of the programs (e.g. with regard to the database, operating system, hardware and data media) shall be given on request.
3.5. The Customer is not entitled to the source programs of the Software, nor to the Software development and/or maintenance documentation.
Article 4 Copyright
4.1. All rights to the Software, particularly the comprehensive copyright with all rights to programs, documents and information made available during the preparation and execution of the Contract - including warranties, support and maintenance - shall, in relation to the Customer, rest exclusively with PANDORA STUDIO d.o.o. in Zagreb, Croatia; also insofar as they are the result of collaboration with the Customer or are based on Customer specifications. With respect to the above mentioned, the Customer shall have only the non-exclusive rights set out in Articles 5 to 8.
4.2. Unless explicitly permitted to do so, the Customer is legally and contractually prohibited from copying the Software, from passing it on and from developing similar software modeled on PANDORA STUDIO-Software.
Article 5 Rights and Duties of the Customer
5.1. The Customer may use only the program components specified in the Contract, regardless of its technical ability to access other components.
5.2. Software components may be used in the production on only one installation. An installation is the sum of all components which access a set of application databases, either directly or indirectly, or which interact with this set of application databases. A set of application databases shall not contain any database table in more than one instance.
5.3. All data processing equipment (hard disks and central processing units) onto which the Software is transferred in whole or in part, temporarily or permanently, must be located at the premises of the Customer and must be in the Customer’s direct possession and under its physical control. Application databases belonging to the Customer’s installation should be stored in the systems located in the country in which the Contract has been concluded, except in the case of the Value Contract.
5.4. The Customer shall be entitled to secure the data according to the state of technology and to create the necessary backup copies of the programs. A backup copy on a moveable data carrier must be marked as such and must carry a copyright notation as used on the original data carrier. The user documentation may be copied onto paper for internal use. The Customer is not permitted to alter or delete PANDORA STUDIO copyright notations.
5.5. The Customer is not permitted to modify the delivered PANDORA STUDIO standard Software. Any additional functionality or interface can be obtained through the setting up of the standard delivered Software and/or additional development based on the standard delivered Software. PANDORA STUDIO emphasizes that even minor alterations can cause considerable and unforeseeable failures in the operation of this program and of other programs. Therefore the Customer is urgently warned not to alter the programs. Alterations are made at the Customer's sole risk.
5.6. If the Software is delivered upon Customer order, the rights of the Customer commence after the receipt of the Software. If the Customer does not receive the Software on the basis of its first order (for example, when Software is supplied in the course of remedy or maintenance work) these rights shall commence from the time when the Customer stores the programs on a hard disk or processes them in a CPU. As soon as the Customer puts the new programs into productive use, its rights in accordance with Articles 5 to 7, and with regard to the previously supplied and now replaced programs, shall expire.
5.7. Any use of the programs that extends beyond the provisions of these General Terms and Conditions or of the Master Price List shall require written consent of PANDORA STUDIO. If the Customer extends the use of Software without requesting and obtaining written consent, PANDORA STUDIO may at any time revoke the Customer's rights of use. In addition, and irrespective of the revocation of the rights of use, PANDORA STUDIO shall be entitled to lump-sum damages equal to twice the charge for this extended use, and in accordance with the Master Price List valid at the time in question. PANDORA STUDIO reserves the right to demand further damages.
5.8. The Customer shall give prior written notice to PANDORA STUDIO of any change in the circumstances that might affect its right to use the Software, or the remuneration due to PANDORA STUDIO, and shall obtain a written consent of PANDORA STUDIO.
5.9. Unless provided otherwise, the Customer shall obtain the rights for an unlimited time.
5.10. Different rules shall partially apply to the Software of other producers. Unless agreed otherwise, PANDORA STUDIO shall only transfer or grant such rights in the Software to the extent necessary to use these programs together with PANDORA STUDIO Software. Unless agreed otherwise, no right to modification or transfer of rights to the third party is granted.
5.11. Further rights and restrictions of use and other details are stipulated in the Master Price List.
Article 6 Passing on of Software
6.1. The Customer may only pass on Software to third parties by resale (and not by renting it) and only under termination of its own use of the Software.
The Customer must obtain written consent from PANDORA STUDIO to pass on the Software, which shall not be unreasonably refused. When the Customer applies for such consent, it shall also supply a written declaration from the purchaser agreeing to abide towards PANDORA STUDIO by the provisions for use and passing on of Software as provided in PANDORA STUDIO standard Contracts valid at the time in question. The third party shall not be entitled to exercise its Contractual rights of use until the Customer provides PANDORA STUDIO with a written assurance that it has passed on all of the original program copies to the third party and that it has deleted all its copies of the programs created by it. Art. 16 shall apply accordingly.
Article 7 Customer Collaboration
7.1. The Customer shall provide the operating environment for the Software (e.g. hardware, telecommunication and operating system) in accordance with the specifications of PANDORA STUDIO and shall observe all specifications set forth in the user documentation.
7.2. The Customer shall provide adequate support for PANDORA STUDIO free of charge during fulfillment of the order, for example, by providing personnel, workspace, hardware, Software, data- and telecommunication facilities, and by participating and assisting in specifications, testing, acceptances etc. The Customer shall grant PANDORA STUDIO and any company associated with PANDORA STUDIO, in particular PANDORA STUDIO d.o.o. (Zagreb), access to its hardware and Software either directly, or indirectly by remote data transfer. In regard to this, PANDORA STUDIO shall protect the important interests of the Customer, especially by complying with data protection provisions. If no easy access by use of telecommunications facilities is technically possible or permitted, the Customer shall bear all negative consequences, for example, any additional costs incurred by PANDORA STUDIO.
7.3. The Customer shall designate a person to be the contact person for PANDORA STUDIO in addition to the Customer's management. This contact person shall have full authorization to make decisions or shall be in a position to ensure that decisions are made without delay. He/she shall also provide effective cooperation between the Customer and PANDORA STUDIO's Customer support staff.
7.4. Prior to beginning operational use of the Software, the Customer shall conduct extensive tests on the program to ensure that it is free of defects and that it is appropriate for the respective situation. This shall also apply to any programs and components supplied within the scope of Software maintenance.
7.5. The Customer shall take appropriate precautions in case the Software does not function properly, either in whole or in part. Such precautions include data backups, error diagnosis, regular results monitoring etc.
Article 8 Delivery Times
8.1. PANDORA STUDIO shall deliver the Software by providing the machine-readable program and the user documentation to the Customer. This shall come into effect by supplying the Customer with data carriers, or by transferring the program onto the computer, or by means of remote (telecommunication) data transmission.
8.2. PANDORA STUDIO shall deliver the Software in the current program version within one month as of the conclusion of the Contract. Shorter delivery times require the express written agreement of PANDORA STUDIO. PANDORA STUDIO shall not be responsible for disruptions due to force majeur.
8.3. If PANDORA STUDIO has to wait for the cooperation or information from the Customer or is otherwise hindered in the performance of its contractual obligations due to circumstances beyond its control, the delivery and service deadlines shall be extended by the duration of the delay and by a reasonable start-up period after the end of the hindrance. PANDORA STUDIO shall notify the Customer of any such hindrance.
8.4. PANDORA STUDIO shall only be deemed to be in default of delivery if it receives a reminder.Grace periods must amount to a minimum of twelve working days.
Article 9 Prices, Payment, Retention of Rights
9.1. Prices for Software deliveries shall include transportation and packaging. The price for the Software shall be the price effective on the date of Contract conclusion. Price changes between that date and the date of delivery shall not be considered. The surcharges and discounts set forth in the Master Price List shall apply. Value-added-tax, if applicable, shall be added to all prices in the amount prescribed by law.
9.2. Each delivery or service shall be invoiced separately. Payment shall be due within fourteen days of the invoice date. No cash discounts shall be granted. Commencing thirty days from the due date, PANDORA STUDIO shall within its discretion charge interest at a rate of the statutory overdue interests.
9.3. The Customer may only offset against claims that are uncontested or finally assessed by a court of law. The Customer may not assign its claims to third parties.
9.4. PANDORA STUDIO shall retain all rights to the subject matters of the Contract (e.g. data carriers and user documentation) until all of its claims and rights under the Contract are satisfied in full. The Customer must immediately notify PANDORA STUDIO in writing if any third party seeks to seize the property concerned and shall also inform the third party about PANDORA STUDIO's rights.
Article 10 Duty to Examine and to Report Defects
10.1. The Customer shall be obliged to inspect all deliveries and services provided by PANDORA STUDIO and to report any defects in accordance with the provisions of the Croatian Zakon o obveznim odnosima. Obligatory Relations Act.
10.2. When reporting on defects, the Customer shall give a detailed description of the problem in writing. Only the contact person (Art. 8.3) and management shall have authority to report defects.
Article 11 Defects and Remedy
11.1. PANDORA STUDIO warrants that the items and services subject to the Contract have the agreed functionality. Insignificant impairments/immaterial deficiencies shall not be taken in consideration.
11.2. PANDORA STUDIO shall assist the Customer in locating a defect and its cause. The Customer will be invoiced for such assistance if it cannot be proven that PANDORA STUDIO is responsible for the defect; the Customer shall bear the burden of proof in this regard. Art. 18 shall be applied.
11.3. In the first instance, PANDORA STUDIO may fulfill its warranty obligations by remedying the defect. The remedy may take the form of eliminating the defect, providing of a new program version, or by PANDORA STUDIO demonstrating how to avoid the effects of the defect in a reasonable manner. The Customer shall support PANDORA STUDIO in accordance with Art. 8. The Customer shall be obliged to accept a new version of the Software, unless this would give rise to unreasonable adaptation and adjustment problems.