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All deliveries and services of WIBU-SYSTEMS LTD (hereinafter referred to as Wibu-Systems) are governed by these Terms and Conditions. Deviating or supplementary agreements - especially as a result of conflicting terms and conditions of business - shall require the express written consent of Wibu-Systems in order to be valid. All orders and assignments, together with any data and information - especially regarding the quality and features of the contract goods - shall require the written confirmation of Wibu-Systems in order to be valid. The aforesaid form may only be waived by means of a written agreement. The Buyer’s attention is drawn to the fact that the order execution by Wibu-Systems is made with the help of automatic data processing equipment and systems.
Deliveries and services shall be made at the prices and conditions included in the written order acknowledgement. Prices specified therein are binding. Unless otherwise agreed in an individual case, prices shall be ex the Hengelo warehouse in the Netherlands plus value-added tax at the rate valid at the invoice date. Unless otherwise agreed, payments shall be made within 30 days of the invoice date, net, with no deductions being made. Wibu-Systems shall be entitled to charge 8 % interest above the base interest rate in commercial transactions, otherwise 5 % above the base interest rate in the event of payment default. Wibu-Systems shall reserve the right to document and charge higher default damages to the Buyer if s/he is a registered trader.
3. Delivery dates
Delivery dates and periods shall be binding if they are designated by Wibu-Systems as binding in an individual case. All delivery dates and periods shall not be binding otherwise. If non-compliance with a delivery period is attributable to unforeseen impediments which are beyond the control of Wibu-Systems, the delivery period shall be extended accordingly. In the event of a delivery delay, the Buyer shall have the right to withdraw from the relevant delivery contract free of charge after an abortive period of grace set for Wibu-Systems. The general liability restrictions in accordance with Section 9 of the present Terms and, Conditions shall apply for any damage compensation claims of the Buyer in account of delayed deliveries or services. Wibu-Systems shall be entitled to execute its deliveries or services in part-deliveries or services.
The payment periods in Section 2 shall apply accordingly. If a Buyer cancels an order later than 75 days before the delivery date specified in the order acknowledgement, the Buyer shall upon the request of Wibu-Systems be obliged to pay 5 % of the basic price for the relevant product as shown in the Wibu-Systems price list, namely at the flat rate amount of the costs incurred by Wibu-Systems. The enforcement of additional damages shall be reserved. The right of the Buyer to prove substantially lower damages or the non-occurrence of damages shall be reserved.
4. Transfer of risk
The risk shall pass to the Buyer upon the despatch of goods by Wibu-Systems.
5. Reservation of title
In the case of contracts with consumers, we shall reserve our right to the ownership of the goods pending full and complete payment of the purchase price. In the case of contracts with registered traders, we shall reserve the right to our ownership of the goods pending full and complete settlement of all claims arising from an ongoing business relationship. The Buyer shall acquire no ownership of the delivered products by installing them in other equipment. Each and every processing by the Buyer of products delivered by Wibu-Systems shall be made on behalf of Wibu-Systems. If an installation is made by the Buyer in third party goods, Wibu-Systems shall become the co-owner of the new products in the ratio of the value of its products to the value of third party goods used. The products originating in the aforesaid manner shall be regarded as reserved goods of Wibu-Systems. If s/he is complying with his/her payment obligations to Wibu-Systems, the Buyer shall only be entitled to resell the delivered products or the products arising from the combination in the ordinary course of business subject to our reservation of title and subject to the software license conditions included in these Terms and Conditions. Pledges or transfers by way of security shall not be permitted. In the event of seizures of the reserved goods by third parties, the Buyer shall draw attention to the ownership of Wibu-Systems, and shall inform Wibu-Systems without delay.
6. Obligation to examine and report defects
a) If the Buyer is not a consumer, the delivered software, including the documentation and any other goods, shall be examined within eight working days after delivery, especially with regard to the completeness of the relevant data carriers and manuals, and the proper functioning of the basic program information. Any defects which are established in the aforesaid process, or which are determinable, shall be reported to Wibu-Systems by registered letter within the specified period. Defect complaints must include a detailed description of the defect to the best of the Buyer’s ability.
b) If no defect complaint is received in accordance with the provisions of a) above within the specified periods, the goods in question shall be regarded as approved.
c) Defects which are not identifiable during the course of the specified orderly examinations must be notified within eight working days after identification thereof, simultaneously complying with the complaint and defect notification requirements set out in paragraph a).
d) In the event of a breach of the examination and defect notification obligation in accordance with a) or c), the software or the alternative goods shall be regarded as approved irrespective of the relevant defects.
a) Wibu-Systems guarantees that its products are free of material and production defects at the time of the transfer of risk. Wibu-Systems also guarantees that the software complies with the specifications set out in the relevant program documentation by Wibu-Systems, and that the aforesaid have been produced with due care and technical knowledge. However, based on state-of-the-art, a complete exclusion of errors in the software is not possible. Wibu-Systems guarantees only a commitment and obligation for those software errors which reduce its value or suitability for the contractually anticipated use.
Responsibility for the selection of the software functions, their usage, and the appropriate hardware/computer models and types shall rest with the Buyer. Wibu-Systems issues no guarantee in the aforesaid respect.
b) If the Buyer is a registered trader, Wibu-Systems shall rectify data carriers accompanying material defects by means of a replacement delivery - also several times within a reasonable period depending on the type of defect. Software defects which have a marked adverse effect on the envisaged use, may either be rectified by delivery of an improved software version at the option of Wibu-Systems, or may be rectified by making reference to the rectification or avoiding the effect of the defect; several rectification attempts may be possible within a reasonable period depending on the type of error.
If the Buyer is a consumer, he/it shall initially have the option of whether post-performance is to be carried out by means of a rectification or replacement delivery. Wibu-Systems shall, however, be entitled to reject the type of post-performance if it is only possible at a disproportionate cost, and if the other type of post-performance is not without significant disadvantages for the consumer.
c) The Buyer shall grant Wibu-Systems a reasonable period for rectifying the defect. A reasonable period of time shall be regarded as a rectification period of 6 calendar weeks. If the Customer hinders a rectification during the aforesaid period by not concerning him/herself with the relevant execution of the necessary extent, Wibu-Systems shall be exempt from its guarantee. If the defect rectification is abortive, or if the Buyer cannot be reasonable expected to accept the rectification in an individual case, the Buyer shall, at his/her option, be entitled to withdraw from the contract (withdrawal), or to demand a reduction in the purchase price (price reduction), or to demand compensation instead of performance - within the limits of Section 9.
d) All guarantees shall lapse if any errors are based on the fact that the Buyer or a third party changes products without the approval of Wibu-Systems, or if the Buyer or a third party uses or repairs the products improperly, or if the product is not correspondingly installed, operated or maintained in accordance with the guidelines of Wibu-Systems.
e) Unless otherwise agreed in an individual case, the guarantee obligation shall be for a period of 36 months, commencing from the delivery of the products to the Buyer.
8. Intellectual property rights and copyrights of third parties
Wibu-Systems shall idemnify the Buyer against claims lodged by property right holders in the event of a breach of industrial property rights or copyrights of third parties on account of the use of the Wibu-Systems product. Wibu-Systems shall, in addition, basically establish the right to continue to use the product for the Buyer. If this is not possible on economically acceptable conditions, Wibu-Systems shall either amend or replace the product at its choice in such a way that the property right is not infringed, or it shall take back the product and refund the purchase price paid to Wibu-Systems, less a deduction to be taken into account for the usage period of the product.
The aforesaid obligations shall only apply if the Buyer immediately informs Wibu-Systems of the enforced claims, if Wibu-Systems is able to reserve the right to all defence measures, including extrajudicial arrangements, and if the breach of the property right is not caused by the fact that a product supplied by Wibu-Systems has been changed or is used in a way which is specified in Wibu-Systems’ publications.
a) If a defect gives rise to a damage, Wibu-Systems shall be liable in accordance with the relevant legal regulations insofar as personal injuries are involved, if the damage is covered by the Product Liability Act or if it is based on willfull intent or gross negligence. If the damage is attributable to a culpable breach of a major contractual obligation or to a “cardinal obligation”, we shall only be liable for typical contract damages. Additional contractual and tortious claims of the Buyer shall be excluded.
b) The aforesaid provisions under a) shall also apply for damage compensation claims on account of the other breaches of duty and our tortious liability. In the event of a breach of a pre-contractual obligation or a performance impediment already existing when the contract was concluded, our compensation liability shall be limited to placing the Buyer in the position which would have prevailed if s/he had not placed his/her faith in the validity of the business (negative interest). If our liability is excluded or limited, this shall also apply for the personal liability of our employees, representatives and vicarious agents.
c) Liability for the loss of data shall be limited to the typical production expense which would normally have been incurred in the event of a regular production of backup copies commensurate with the relevant risk.
10. General software license terms and condition
a) The Buyer shall be granted a simple, non-exclusive and non-transferrable usufructuary right to Wibu-Systems software, external software (software which was developed by an independent software manufacturer of Wibu-Systems) and the relevant documentation, including subsequent amendments.
No additional acquisition of rights to the software is associated with the aforesaid grant of the usufructuary right. Wibu-Systems shall reserve all distribution, exhibition, presentation, performance, and publication rights to the software. The same shall apply for processing and reproduction rights unless expressly agreed otherwise below.
b) The usufructuary right referred to in a) shall be limited to the object code for the software program. Wibu-Systems shall not be obliged to make the source code available to the Buyer. The Buyer is forbidden to re-engineer, re-assemble, decompile or process or amend the object code of the software in any other way.
c) All copying of the software stored on the data carriers and all copying on electro-magnetic, optoelectronic or any other data carriers and its accompanying material is forbidden. An exception to the aforesaid is the one-off installation of the software from the data carrier onto the hard disk and downloading and/or printing data from the current application exclusively for internal use. Also excluded from the duplication ban is the production of backup copies if this is exclusively for internal use for safeguarding the future use of the software for the contractually presupposed use.
If the originals bear a reference to a copyright protection, the aforesaid reference shall also be instigated by the Buyer on all copies.
d) Provided that open source software is part of a Wibu-Systems product, these parts will be identified separately. In this case, the Buyer does not aquire rights of use from Wibu-Systems but directly from the copyright holders of the respective open source component. In this respect, the aforesaid license conditions do not apply, but exclusively the license conditions of the open source components. Wibu-Systems makes available the text of these license conditions to the Buyer.
11. Special license terms and conditions for the use of Wibu-Systems runtime software and libraries
When using Wibu-Systems hardware, e.g. WibuBoxes or CmSticks, or the software-based protection CodeMeterAct, the following license regulations shall apply deviating from the aforesaid provisions of § 10:
The Buyer shall be entitled to integrate the Wibu-Systems software libraries required for the use of the Wibu-Systems protection systems into his/her computer programs or data in order to protect these from unauthorized use - in accordance with the specification in the relevant manual - or to measure their use.
The Buyer shall also be entitled to pass on the integrated Wibu-Systems software libraries to distributors and end-users together with his/her computer programs and data, and to distribute the Wibu-Systems runtime software as part of his/her protected software. The customers of the Buyer shall have the right to use the Wibu-Systems software libraries and the Wibu-Systems runtime software as part of the protected computer programs and data according to the intended purpose.
Before passing on the Wibu-Systems software libraries and the Wibu-Systems runtime software, the Buyer must test the correct functioning of these components for the protected computer programs and data, and to forthwith inform Wibu-Systems on any occuring problems.
12. Export regulations and customs clearance
The Buyer shall observe German export regulations if Wibu-Systems products are exported and shall draw the attention of his/her customers to the fact that German export regulation apply in the event of such an export.
If deliveries are exported with duty unpaid, he/it shall be liable to Wibu-Systems for any subsequent claims of the Customs and Excise Office.
13. Final provisions
a) The Buyer shall only be entitled to assign its rights and obligations under the present contract with the prior written consent of Wibu-Systems. S/he shall only be entitled to offset amounts against claims of Wibu-Systems or to enforce payment retention rights if the counterclaim of the Buyer is undisputed or has been established by declaratory judgement.
b) The present contractual relationship shall be governed exclusively by German law to the exclusion of the provisions of the Uniform Law on the International Sale of Goods (EKG), the Uniform Law on the International Sale of Moveable Goods and Chattels (EAG) and the United Nations Commission on International Trade Law (UNCITRAL).
c) The place of performance and legal venue for all contractual claims or claims connected with the present contract shall be in Bletchley, Milton Keynes, Buckinghamshire, England, if the Buyer is a registered trader. Wibu-Systems shall also be entitled to enforce claims at the competent court for the place of residence or registered office of the Buyer.
d) If individual provisions of the above delivery, license and payment terms and conditions are invalid, the other provisions shall remain in full force and effect.