KSS Kinetic Spray Solutions GmbH
Holmer Weg 13
Phone +49 (0) 171 658 1646
Geschäftsführer Josef Hirschbeck vCard
Amtsgericht Tostedt, HRB 203009
Umsatzsteuer ID DE 278264216
Liability for Content
We make every effort to keep the information on our Web site current, but accept no liability whatsoever for the content provided. Pursuant to §7 par. 1 of TMG (German Tele-Media Act), the law limits our responsibility as a service provider to our own content on these Web pages.
According to §§8 to 10 of TMG, we are not obligated to monitor third party information provided or stored on our Web site. However, we shall promptly remove any content upon becoming aware that it violates the law. Our liability in such an instance shall commence at the time we become aware of the respective violation.
Liability for Links
Our site contains links to third-party Web sites. We have no influence whatsoever on the information on these Web sites and accept no guaranty for its correctness. The content of such third-party sites is the responsibility of the respective owners/providers.
At the time third-party Web sites were linked to ours, we found no grounds whatsoever of any likely contravention of the law. We shall promptly delete a link upon becoming aware that it violates the law.
The content and works provided on these Web pages are governed by the copyright laws of Germany. Duplication, processing, distribution, or any form of commercialization of such material beyond the scope of the copyright law shall require the prior written consent of its respective author or creator.
Please be aware that there are inherent security risks in transmitting data, such as e-mails, via the Internet, because it is impossible to safeguard completely against unauthorized access by third parties. Nevertheless, we shall safeguard your data, subject to this limitation. In particular, personal information will be transmitted via the Internet only if it does not infringe upon third-party rights, unless the respective party has given its prior consent in view of such security risks. Accordingly, as the Web site provider, we shall not be held liable for any damages incurred as a consequence of such security risks or for any related acts of omission on our part.
We oppose the use of any available contact information by a third party for sending unsolicited advertisements. As the Web site provider, we reserve the express right to take legal action against unsolicited mailing or e-mailing of spam and other similar advertising materials.
Use of Google Analytics
End User License Agreement
for the KSS Software
This End User License Agreement („EULA“) is an agreement between you (the “Customer”) and Kinetic Spray Solutions GmbH (“KSS”; the parties together the “Parties”) about the use of the KSS Software
1.1 This End User License Agreement („EULA“) contains the contractual terms for the provision of certain software services (the “Services”) based on the KSS Software (hereafter referred to as the “Software”).
1.2 KSS operates the Software on KSS’ or a KSS data center’s servers and makes the functions of the Software available to the Customer as a Software as a Service (SaaS) product.
2.1 KSS makes the Software available for use by the Customer at the interface between the network being operated by KSS and other networks (hereafter referred to as the “Interconnection Point”).
2.2 The Software, the computer capacity required for the use of the Software by the Customer and the database and computer capacity required for saving and processing the Customer’s data are provided by KSS.
2.3 KSS provides neither the data network nor the data link between the Interconnection Point and the network being operated by the Customer.
3. System Requirements / Customer’s Duties of Cooperation
3.1 The Customer ensures that the integrity and availability of the Software and the systems used by KSS or a KSS sub-contractor to make the Software available are not impaired by the systems and software used by the Customer. The Customer ensures that a firewall and the newest version of an industry standard antivirus software as well as the Microsoft Internet Explorer and or the Safari Internet browser are installed on the Customer’s servers and computer terminals. KSS can block the Customer’s access to the Software, if systems are not operating properly and the security, integrity and/or availability of the KSS Software or systems may be at risk.
3.2 The Customer undertakes to prevent the unauthorized access of his staff and other third parties to the Software. The Customer obliges his employees to comply with this provision.
3.3 The Customer reports malfunctions and irregularities of the Software to KSS without delay. The Customer shall make every reasonable endeavor to describe the malfunction. The report must be made by competent staff familiar with the Software. KSS may ask for additional reports to be made where the initial report has not sufficiently described the problem and has therefore not enabled KSS to reproduce it. The Customer will make use of all advice given by KSS to describe and localize the cause of the malfunction or irregularity. Where the Customer fails this duty of cooperation, § 536 c of the German Civil Code (“Bürgerliches Gesetzbuch”) applies accordingly.
4. Rights of Use
4.1 The Software is installed and operated on KSS servers or the servers of a KSS sub-contractor. The Customer uses the Software through a web interface (Internet browser) without installing a client on its computer. The Customer does therefore not require a copyright license to use the Software. KSS does not grant any rights of use in the Software to the Customer. However, for the term of the EULA KSS grants to the Customer a non-exclusive, non-transferable license to load the Software’s user interface into the working memory of the device the Customer is using at the time and to use the Software for its intended purpose.
4.2 The Customer may use the Software for the intended purpose of the software, which is the calculation, simulation and analysis of its own coating endeavors.
5. Log-in Data
5.1 The Customer may under no circumstance pass on the data used to access the Software on to third parties, and shall keep the log-in data secret at all times using all reasonable security measures to prevent theft or loss of such data. Should the Customer become aware, or should the Customer have reason to suspect, that the log-in data has been stolen or lost, the Customer shall inform KSS immediately.
5.2 KSS has the right to temporarily block the Customer from using the Software if any of the event described in section 5.1 occurs. Where the breach of section 5.1 happened due to gross negligence or was committed intentionally KSS is entitled to terminate the EULA for cause under section 11.2 of this EULA.
6. Obligations Not to Use
6.1 The Customer may only use the Software in accordance with section 4 of this EULA. Any use that exceeds the rights granted under this EULA is prohibited. Unless otherwise agreed between the Parties, the Customer may in particular not allow third parties to use the Software or use the Software for the business purposes of third parties (e.g. as a shared service center). Unless otherwise provided, companies affiliated with the Customer are third parties under this EULA. In the event that the Customer acts in culpable breach of the license limitations described herein, it shall – inter alia – be liable to compensate KSS on the basis of a license analogy, paying to KSS the licenses fees it would have had to pay for the infringing use of the Software.
6.2 The provisions of §§ 69 d, 69 e of the German Copyright Act (“Urhebergesetz”) remain unaffected.
7. Software Support Services
7.1 KSS provides software support services for the latest release of the Software. All KSS customers use the same version of the Software at any time.
7.2 Software support services include:
- • Provision of all patches, bugfixes, updates and, in certain cases, upgrades available for all customers (cf. section 8);
- • Providing Solutions (“Solution” as defined in section 9.3) following an individual problem report by the Customer (cf. section 9).
8. Patches, Bugfixes, Updates and Upgrades
8.1 KSS provides the Customer with all patches, bugfixes and updates (hereafter collectively referred to as “Improvements”) available to its customer base. KSS installs the Improvements and makes them available for use by the Customer as part of the Software according to section 2.
8.2 KSS may also provide the Customer with upgrades to the Software without, however, there being obligation to do so for all customers. KSS may all choose to provide upgrades as separate modules or add-ons to the Software, subject to an additional license fee.
9. Analysis and Solution of Malfunctions and Irregularities
9.1 KSS supports the Customer by analyzing and, where reasonably possible, fixing malfunctions and irregularities of the Software.
9.2 The Customer shall report any malfunctions and irregularities to KSS via email in accordance with section 3.3.
9.3 KSS reacts to incoming reports within 24 hours after the malfunction or irregularity was reported confirming the receipt of the report by email. KSS will then analyze the problem and use all reasonable efforts to resolve it. KSS will get back to the Customer within the timeframes listed in section 9.5 with a solution of the problem, a workaround or a detailed update on the status of the problem and the steps that will be undertaken to resolve it (together referred to as a “Solution”).
9.4 The Parties agree on the following defect categories:
Category 1 (critical)
The Software cannot be used (e.g. the Software does not react and cannot be accessed.
Category 2 (medium)
A material function of the Software is not working properly; the Software can, however, still be used.
Category 3 (low)
Minor functions of the Software are not working properly (e.g. algorithm failure).
9.5 The Parties agree on the following service levels:
Time for providing an answer
3 working days
5 working days
10 working days.
9.6 KSS is not obliged to analyze and/or fix malfunctions and irregularities caused by changes that the Customer or third Parties have made to the Software. If such a change is detected during the analysis of the Software, KSS is entitled to charge the Customer an hourly fee of net EUR 250.00 for the efforts spent to analyze the Software.
10. License Subscription Fees
10.1 For the services rendered by KSS under this EULA the Customer pays KSS the agreed annual or, where so agreed, bi-annual license subscription fees. The prices do not include VAT; the statutory VAT will be added where applicable, to be borne by the Customer.
10.2 The annual or, as the case may be, bi-annual license subscription fees become due for payment at the respective beginning of the applicable license term (cf. section 10) following the receipt of KSS’ invoice by the Customer.
10.3 KSS may raise the license subscription fees for the following license term by providing written notice to the Customer at least four months prior to the end of the then ongoing license term.
10.4 KSS is entitled to deny the Customer access to the Software until receipt of all outstanding payments where the Customer has been in default of payment for more than 2 weeks.
11. Term and Termination
11.1 The minimum duration of the EULA is either one year or two years (“Minimum License Term”). Unless terminated with a notice period of three months to the end of the Minimum License Term or any later license term, the EULA shall be automatically extended for successive periods of one year.
11.2 Nothing in this EULA shall exclude or restrict the right of the Parties to terminate this EULA for cause if the conditions and requirements provided by section 314 of the German Civil Code (“Bürgerliches Gesetzbuch”) for such termination are met.
11.3 Any notice of termination has to be made in writing to be valid and effective.
12.1 KSS warrants that the use of the Software in accordance with this EULA does not interfere with, infringe upon, misappropriate or violate any material intellectual property rights of third parties in any material respect. In the event of any third party claiming rights with regard to the Software or claiming the inadmissibility of using the Software for its intended purpose against the Customer, the Customer will inform KSS. KSS will at its discretion and at its cost either replace or change the Software such that it does not infringe the alleged rights, but still in all material respects conforms to the agreed functions or procure the right for KSS to operate the Software for the Customer.
12.2 In line with the product description, the Software provides better grounds for the Customer’s decision on how to spray and coat certain surfaces. KSS does not warrant, however, that the Software will provide the Customer with the best analysis and lead to the best results theoretically possible. The Software may therefore not be understood as giving the Customer a direct instruction on exactly how to approach the endeavor at hand, but only as a tool to support the Customer in its own calculations and analysis and thus broaden and improve the basis of its decisions. It is therefore no defect of the Software if the analysis and recommendations it provides do not lead to good coating results and save technical application of Customer machinery when applied without additional analysis, cross-checking and tests.
12.3 If a defect of the Software occurs, KSS is obliged and entitled to supplementary performance. The Customer may only reduce the license subscription fee, withdraw from the contract and/or claim damages in accordance with section 13 if the statutory requirements for such claims are met.
12.4 KSS is entitled to choose the form of supplementary performance either in form of remedial action or the provision of new, properly functioning Software. In the event of malfunctions or irregularities, remedial action may be taken by providing updates, upgrades or a workaround, if this reasonably has to be accepted by the Customer.
12.5 The warranty period shall be one year. The limitation of the warranty period under this section 12.5 shall not apply to damage claims that result from culpable injuries to life, limb, or health, where KSS has caused damages by willful or grossly negligent acts or omissions, or has concealed a defect with malicious intent, or is liable for damages according to the German Product Liability Act (Produkthaftungsgesetz).
12.6 If in the process of examining the alleged defect, it turns out that the malfunctioning or irregularity was not caused by a defect of the Software, but rather by improper system-settings, the Customer’s wrong use of the Software or any other factor being caused by the Customer, KSS is entitled to charge the Customer a fee for the efforts based on an hourly rate of net EUR 250.00, if the Customer could have known that the malfunctioning or irregularity was not caused by an actual defect of the Software.
12.7 §§ 536b, 536c of the German Civil Code shall apply. However, § 536a Abs. 2 of the German Civil Code shall not apply, and § 536a Abs. 1 of the German Civil Code shall not apply insofar as it imposes liability without intent or negligence.
The Software provides better grounds for the Customer’s decision on how to spray and coat certain surfaces The Software may not be understood, however, as giving the Customer a direct instruction on exactly how to approach the endeavor at hand, but only as a tool to support the Customer in its own calculations and analysis and thus broaden and improve the basis of its decisions. It is therefore no defect of the Software if the analysis and recommendations it provides do not lead to good coating results and save technical application of Customer machinery when applied without additional analysis, cross-checking and tests. KSS is therefore, in particular, not liable for damages that occur due to the Customer not having properly analysed, tested, evaluated, refined and, where necessary, corrected the results of the Software. In particular, this applies to cases where the user is transferred parameters to spray equipment without taking into account equipment limitations and professional care, e.g. in cases
- • where the nozzles clogg with the spray materials;
- • where temperatures were too high for the heater used in the spraying process and the heater is being damaged; or
- • where the gun travel speed was set to an in appropriate speed for the robot arm; or
- • Cost estimated in the software turn out to be higher in the production environment.
The foregoing as background, KSS is liable for damages as follows:
13.1 KSS shall be liable according to the applicable statutory provisions (whether in contract, tort or otherwise) for damages (i) that are caused as a result of KSS, its legal representatives, or its agents or auxiliaries having acted, or having failed to act where there was a duty for KSS to act, in gross negligence or with malicious intent, (ii) that occur as a result of a breach of a guarantee (“guarantee” within the meaning of section 443 of the German Civil Code (“Bürgerliches Gesetzbuch”), (iii) that are a result of a culpable injury to life, limb or health, and/or (iv) that are subject to product liability under the German Product Liability Act.
13.2 In cases of ordinary or minor negligence, KSS shall only be liable for damages that result from breaches of material duties (whether in contract, tort or otherwise). The afore provided limitation of liability shall not apply, however, where the damages result from culpable injuries to life, limb or health or as a result of breach of a guarantee (as defined in section 13.1 above). “Material duties”, in contract, are such duties that, if breached, jeopardize reaching the aim and purpose of the contract.
13.3 In case of a breach of a material contractual duty KSS’ liability shall furthermore be limited to damages that are typically foreseeable in the context of an agreement such as the EULA. The afore provided limitation of liability shall not apply, however, where the damages result from culpable injuries to life, limb or health or as a result of breach of a guarantee (as defined in section 13.1 above).
13.4 Other than in cases that fall under section 13.1 above, KSS shall not be not liable for indirect, consequential or special damages.
13.5 Further, in case of a breach of a material contractual duty as a result of ordinary or minor negligence KSS’ liability shall be limited to maximum amounts of EUR 10,000 per case, and EUR 50,000 overall, provided, however, that the afore provided limitation of liability shall not apply where the damages result from culpable injuries to life, limb or health or as a result of breach of a guarantee (as defined in section 13.1 above).
13.6 Any liability other or beyond the liability provided in sections 13.1 to 13.5 above is excluded.
13.7 The Customer is responsible for ensuring the routine backup of its data. Irrespective of sections 13.1 to 13.6 above, if the Customer suffers damages that result from the loss of data, KSS shall in each case only be liable for such damages insofar as the damages could not have been avoided by the Customer carrying out data backups of all relevant data in regular intervals according to Industry Best Practice.
14. Confidentiality/ Data Protection
14.1. „Confidential Information“ for the purposes of this section 14 shall mean any information and data, including, but not limited to, any kind of business, commercial or technical and technological information and data disclosed between KSS and the Customer in connection with this EULA and the use of the Software, which is – when disclosed in tangible form or via electronic communication, including internet based provision of information – marked „Confidential“ or similarly designated by the disclosing party or which is identifiable as confidential due to its content and nature.
14.2 For a period of ten (10) years from the date of receipt, the receiving party will use all reasonable efforts to prevent the disclosure of Confidential Information to any other person, unless disclosure is required by law or necessary for the performance of this EULA and/or exercise of the rights under this EULA. The receiving party may disclose Confidential Information to its employees with a legitimate need to know who agree, or have agreed, in writing to confidentiality obligations consistent with this section 14.
14.3 Confidential Information does not include information that: (i) is or becomes public knowledge through no wrongful act of the receiving party; (ii) is already known to the receiving party; (iii) is rightfully obtained by the receiving party from any third party without similar restriction and without breach of any obligation owed to the disclosing party; (iv) is independently developed by or for the receiving party; or (v) is approved for release by written authorization of the disclosing party.
15. Data Backup
15.1 KSS will perform complete data backups according to common industry practice. Upon request of the Customer KSS may provide backup data for the Customer for an additional fee of net EUR 250.00
15.2 Irrespective of the foregoing, the Customer shall itself be obliged to also backup any data put in the software as well as any results produced by the Software.
KSS may at its discretion employ the services of sub-contractors (such as data center operators) to render its services to the Customers.
17.1 This EULA shall be constructed, and the legal relations between the Parties shall be determined, in accordance with the laws of Germany without giving effect to any choice of law rules that may direct the application of the laws of any other jurisdiction.
17.2 The Parties hereby irrevocably submit to the exclusive jurisdiction of the courts of Stade, Germany for any dispute or claim arising out of or in connection with this Agreement.
17.3 Any amendment of or modification to this EULA require the written form, including any change to this section 17.3.
17.4 If any part, term, or provision of this EULA shall be held invalid, unenforceable, the validity of the remaining portion or portions of this EULA shall not be affected thereby.