You will find these General Terms and Conditions within the Helium22 solutions that you download and these General Terms and Conditions govern the use of the Helium22 Solutions. To complete the installation of and to use Helium22 solutions, you are required to agree to the terms defined below, before installation and use. Helium22 Limited is herein referred to as Helium22 Limited, Helium22 Limited or Helium22.
§ 1 TERRITORY
These General Terms and Conditions govern the use and maintenance of the Helium22 solutions for clients, partners and customers who use our software throughout the world.
§ 2 DEFINITIONS
Site: Defined and/or restricted area (e.g. campus, premises) of which the diameter does not exceed 6,21 miles (10 kilometers), and which is used exclusively by the customer;
Client: A company who has purchased a license to use a Helium22 solution;
Partner: A company or individual who is licensed to resell a Helium22 solution;
Customer: An individual who has purchased a license to use the Helium22 solutions;
User: Any company, partner or individual working with a licensed copy of our softwares (All clients, partners and customers).
§ 3 PRE-CONDITION
HELIUM22 IS WILLING TO LICENSE HELIUM22 SOLUTIONS TO A CLIENT, PARTNER, CUSTOMER OR USER, ONLY ON THE CONDITION THAT THEY ACCEPT ALL THE TERMS CONTAINED IN THIS AGREEMENT.
§ 4 ASSIGNMENT
BY DOWNLOADING OR INSTALLING THIS SOFTWARE, THE USER ACCEPTS THE TERMS OF THESE GENERAL TERMS AND CONDITIONS AND INDICATES THEIR ACCEPTANCE THEREOF BY SELECTING THE "ACCEPT" BUTTON OR CHECK BOX AT THE BOTTOM OF THE GENERAL TERMS AND CONDITIONS. IF THE USER IS NOT WILLING TO BE BOUND BY ALL THE TERMS, THE USER MUST SELECT THE "DECLINE" BUTTON OR CHECK BOX AT THE BOTTOM OF THE AGREEMENT, SO THAT THE DOWNLOAD OR INSTALL PROCESS WILL BE INTERRUPTED.
§ 5 LICENCES
Helium22 grants to the user a non-exclusive license to use licensed Helium22 solutions in object code form as described in these General Terms and Conditions.
The “Commercial-Edition-Software” is designed for the exclusive use by the user. For the grant of a license, a fee has to be paid.
The “Commercial-Edition“- License is non-transferable. Any attempt to share or transfer a licence without the consent of Helium22 shall be a violation of this license agreement and international copyright laws, and will result in the forfeit of all benefits and rights as a user.
A. Single- and Multi-user license
When a user purchases a certain number of licences according to the confirmation of order. The user is only allowed to install and use the maximum number of purchased licences simultaneously. This means the user may only use the modules contained within the software for which the user has paid a license fee and for which the customer has received a product authorization key from Helium22 .
If the number of licenses allowed to be use simultaneously is exceeded, Helium22 has to be informed and the exceeded number of installations have to be prevented through suitable means.
If the exceeded number of installations cannot be prevented by organization or technical means, the customer is obliged to purchase the relevant number of licences.
B. Site- License
Helium22 grants the user the right and license to install and use the software on multiple computers for one or more users.
This license, however, is restricted to the use within one location (site). In the case of the software being used in other locations than those agreed upon, the customer is obliged to pay the license fee due for the location-license as a compensation.
The user grants Helium22 or its independent accountants the right to examine the user´s books, records, and accounts during the user's normal business hours to verify compliance with the above provisions.
"Trial Edition" means a free-of-charge-version of the software to be used only to review, demonstrate, and evaluate the software. The Trial-Edition may have limited features, and /or will cease operating after a pre-determined amount of time, due to an internal mechanism within the Trial-Edition.
No maintenance is available for the Trial-Edition.
The software may be installed on multiple computers for private and commercial use.
The software may be transferred to third parties (e.g. on homepages or ftp-servers) as long as the program remains unchanged and is offered free of charge. A chargeable transfer of the “Trial-Edition” (chargeable download, CD in Magazines) requires previous written permission by Helium22 .
§ 6 RESTRICTIONS
Software under these General Terms and Conditions is confidential and copyrighted. The title to the software and all associated intellectual property rights are retained by Helium22 Limited.
The user may not modify, decompile, or reverse engineer said software.
The user may make archival copies of the software to protect their investment, and must not give away or share our software.
§ 7 MAINTENANCE
Our maintenance agreement is the maintenance of the “Commercial-Edition-Software” according to the confirmation of any order.
1. Scope of Maintenance
The user is granted the opportunity of downloading the current version of the purchased Commercial-Edition-Software and requesting a license-key for the duration of the Maintenance Agreement.
The user will receive support for the duration of the Maintenance Agreement.
The Maintenance Agreement has a duration of 12 months and may be prolonged.
The Maintenance Agreement starts with the sending of the affirmation of contract. The affirmation includes the download-link and the licence-key of the software.
Prolongation may only take place until the end of the duration of the Maintenance Agreement.
§ 8 PRICE
All levies, dues, taxes, duties and other charges shall be borne by the user..
§ 9 PAYMENT
The payment to be made by the user is in any event due at the time delivery of the software is effected. The due time for payment arises without any further precondition.
The payment to be made by the user is to be transferred as stated on the invoice to the banking account of Helium22 Limited without deduction and free of expenses and costs for Helium22 Limited.
In the event of delay in payment the user will pay to Helium22 - without prejudice to compensation for further losses — the costs of judicial and extra judicial means and proceedings as well as interest at the rate of 5 % over the base interest rate of the European Central Bank.
§ 10 LIMITATIONS FOR CUSTOMERS IN THE UNITED STATES AND UNITED STATES TERRITORY
1. LIMITED WARRANTY
Helium22 warrants that for a period of ninety (90) days from the date of download the software files will be free of defects with regards to the product under normal use. Except for the foregoing, software is provided "AS IS". The user exclusive remedy and Helium22 's entire liability under this limited warranty will be at Helium22 's option to replace software media or refund the fee paid for the software. Any implied warranties on the software are limited to 90 days.
2. DISCLAIMER OF WARRANTY
UNLESS SPECIFIED IN THESE GENERAL TERMS AND CONDITIONS, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE DISCLAIMED, EXCEPT TO THE EXTENT ALLOWED BY APPLICABLE LAW.
3. LIMITATION OF LIABILITY
IN NO EVENT WILL Helium22 BE LIABLE FOR ANY LOST OF REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF Helium22 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT TO THE EXTENT ALLOWED BY APPLICABLE LAW.
In no event shall Helium22 's liability to the user, whether in contract, tort (including negligence), or otherwise, exceed the price paid by the user. The foregoing limitations shall apply even if the above-stated warranty fails its essential purpose. If the Terms above are not applicable to the customer the following Limitations apply.
§ 11 INTERNATIONAL LIMITATIONS
Conformity of the Software
The software does not conform with these General Terms and Conditions, if at the time the risk passes it is clearly different to the specifications, or in the absence of specifications, the software is not fit for the usual purpose.
Helium22 is particularly not liable for the software being fit for a particular purpose to which the user intends to put it or for the software´s compliance with the legal requirements existing outside the United Kingdom.
2. Examination and Notice of Lack of Conformity
The user must examine the software as required by law.
The user shall give notice of any lack of conformity to Helium22 as required by law, in any event directly and in writing and by the quickest possible means by which delivery is guaranteed (e.g. by telefax).
3. Consequence of Delivering non-conforming Software
Following due notice of lack of conformity, the user can rely on the remedies provided for by the UN Sales Convention in regard to the terms laid down in these General Terms and Conditions. In the event of notice not having been properly given, the user may only rely on the remedies if Helium22 has fraudulently concealed the lack of conformity.
The user is entitled to demand delivery of substitute software or repair or reduction of the purchase price as set forth in and in accordance with the terms of the UN Sales Convention.
Irrespective of the user remedies, Helium22 is entitled to repair non-conforming software or to supply substitute software.
4. Third Party Claims and Product Liability
A. Third Party Claims
Without prejudice of further legal requirements, third parties' rights or claims founded on industrial or other intellectual property only found a defect in title to the extent that the industrial and intellectual property is registered and made public in the United Kingdom.
The user's claims for defects in title including those founded on industrial or intellectual property will be time-barred according to the same rules as the claims for delivery of non-conforming software.
Third parties not involved in the conclusion of contract based on these General Terms and Conditions in particular those purchasing from the user, are not entitled to rely on any remedy provided for in this General Terms and Conditions or to raise claims against Helium22, founded on delivery of non-conforming software or defect in title.
B. Product Liability
Without prejudice to Helium22 continuing legal rights and waving any defence of limitation the user will indemnify Helium22 without limit against any and all claims of third parties which are brought against Helium22 on the ground of product liability, to the extent that the claim is based on circumstances which are caused after risk passed by the customer.
A. Obligation to Pay Damages
Helium22 is only obliged to pay damages pursuant to these General Terms and Conditions if it deliberately or in circumstances amounting to gross negligence breaches obligations owed to the customer. This limitation does not apply if Helium22 commits a fundamental breach of its obligations.
Without prejudice to its continuing legal rights, Helium22 is not liable for a failure to perform any of its obligations if the failure is due to impediments which occur, e.g. as a consequence of natural or political events, acts of state, industrial disputes, sabotage, accidents, or similar circumstances and which cannot be controlled by Helium22 through reasonable means.
The user is required in the first instance to rely on other remedies and can only claim damages in the event of a continuing deficiency.
B. Amount of Damages
In the event of contractual or extra contractual liability, Helium22 Limited will compensate the loss of the user to the extent that it was foreseeable to Helium22 Limited at the time of the formation of the General Terms and Conditions.
§ 12 MISCELLANEOUS
1.Set off, Suspending Performance
Legal Rights of the user to set-off against claims of Helium22 for payment are excluded, except where the corresponding claim of the user has either been finally judicially determined or recognized by Helium22 Limited in writing.
2. Place of Performance
The place of performance and payment for all obligations arising from the legal relationship between Helium22 and the user is the United Kingdom (London).
3. Applicable Law
The legal relationship with the user is governed by the United Nations Convention of 11 April 1980 on General Terms and Conditions for the International Sale of Goods (UN Sales Convention) in the English version.
Outside the application of the UN Sales Convention, the contractual and non-contractual legal relationship between the parties is governed by English law.
The parties submit for all contractual and extra-contractual disputes arising from these General Terms and Conditions to the local and international exclusive jurisdiction of the courts having jurisdiction for the United Kingdom.
All communications, declarations, notices, etc. are to be drawn up exclusively in the United Kingdom, and in the English language. Communications by means of e-mail or fax need to fulfil the requirement of being in writing.
If provisions of these General Terms and Conditions should be or become partly or wholly void, the remaining conditions continue to apply.