General Terms & Conditions

I. Validity of the terms and conditions



Our General Terms and Conditions for sale (hereinafter: GTC) shall apply exclusively to the sale of standard software, to the services agreed upon and to pre-contractual obligations, unless otherwise agreed in writing. Differing or contrary terms shall not apply, even if we do not expressly object to them.
Even if this is not mentioned again when similar contracts are concluded in the future, these General Terms and Conditions apply exclusively in the version available under https://www.caq.de/en/conditions when the customer submits his order, unless we agree upon something else in writing.
For the delivery of the standard software §§ 433 et seq. of the German Civil Code (hereinafter referred as: BGB) shall apply in addition.
For services (e.g. installation, parameterization, training) §§ 611 et seq. BGB shall apply in addition.

II. Conclusion of contract



Our offers are subject to change and non-binding, unless they are designated as binding in writing. A legal binding is only created through a contract signed by both parties or through a written order, and additionally through the fact that we begin to provide the service or deliver the software after the order has been placed. We may request written confirmation of oral contractual declarations from the customer.
The customer is bound by his declarations regarding the conclusion of contracts for two weeks.
After receiving the customers declaration of acceptance, we will send a confirmation to the customer, which he must check again and sign.
Once we have received the signed order (hereinafter: order), the contract is legally concluded. The content of the contract results from the order and our written offer. 
If the customer would like to expand his software scope at a later stage by purchasing additional CAQ software, he is obliged to conclude a maintenance contract (software maintenance contract) with us in addition to the software purchase contract.

III. Subject of the contract, scope of services



The subject of these General Terms and Conditions is the delivery of a standard software and the granting of the license (rights of use) in accordance with Section IV of this GTC. Standard software refers to programs that are available to the largest possible group of users in a standardized (i.e. always the same) version. The software is not adapted to the specific needs of the customer and is intended for tasks that must be accomplished in the same or very similar way everywhere. We are not obliged to fulfill the customers special requests. 
Services such as installation or training become only part of the contract if the customer orders the associated services when purchasing the software or after the purchase. The ordered services are additionally regulated in Section XV of this GTC.  
Software maintenance is not included in the scope of services and is agreed in a separate contract (maintenance contract).  
The functionality and technical conditions of use of the software are primarily based on the description in the user manuals (see attachment manuals of the purchased software), which can also be viewed on our website www.caq.de, and additionally according to the provisions of these General Terms and Conditions. The functionality of the software requires that it runs in a suitable technical environment (see attachment system requirements). Before concluding the contract, the customer had checked that the software specifications correspond to his wishes and needs. He is familiar with the essential functional features and conditions of the software. 
The client’s order, otherwise, our offer, is decisive for the scope, type and quality of the deliveries and services. Other information or requirements will only become part of the contract if we have agreed upon then in writing or confirmed it in writing. Subsequent changes to the scope of services require a written agreement or our written confirmation. 
Product descriptions, representations, test programs, etc. are contractual service descriptions, but not guarantees. A guarantee requires a written specific declaration from our management. 
The customer receives the software, consisting of the machine program and the user manual. The customer has no right to obtaining the source program. 
We provide all deliveries and services according to the state of the art and the principles of economic efficiency.

IV. Customer’s rights to the software



The software (program and user manual) is legally protected. Copyrights, patent rights, trademark rights and all other property rights to the software and other items that we provide or make accessible to the customer as part of the contract initiation and execution are exclusively owned by CAQ AG in the relationship between the contractual partners. To the extent that third parties are entitled to the rights, CAQ AG has corresponding exploitation rights.
The customer is only entitled to use the program to process their own data in their own company for their own purposes. Further contractual usage rules (e.g. the limitation to a number of workstations or people) must be technically set up and practically adhered to. We hereby grant the customer the rights necessary for this use as a simple right of use, including the right to correct errors. Section XIII applies for the duration of the right of use. 
The customer may create the backup copies of the programs required for secure operation. The backup copies must be stored securely and, as far as technically possible, must be marked with the copyright notice of the original data carrier or the version of the software transmitted online. Copyright notices, trademarks and product identifications may not be deleted, changed or suppressed. Copies that are no longer needed must be deleted or destroyed. The user manual and other documents provided by us may only be copied for internal company purposes.
The customer is only entitled to transfer the title to a third party in accordance with the following rules:

The transfer to the third party takes place through sale in permanently and without a right of return or repurchase option.
The third party makes the following written declaration to CAQ AG:

“We wish to purchase from . . . . . (company and address of the customer) the software . . . . . (exact designation including designation of the license volume). We have received a copy of the documents showing the rights of use and obligations of the previous purchaser of the software. We undertake to you to comply with these rules. This applies in particular with regard to Sections IV, XIII 2 and 3, XIV 1 and 2, XVI of the then agreed General Terms and Conditions for the sale of CAQ.
Our right of use begins at the earliest when the previous purchaser has informed CAQ AG in writing that he has, as far as possible and reasonable, deleted the software and that he no longer has the right to use the software once our right of use begins.
In the event that we sell the software, we undertake to comply with the same rules that apply to our legal predecessor."


The customer must ensure that the third party is only allowed to use the software once he has carried out the deletion process of the software himself and when we have received the declaration signed by the third party in accordance with Section 4 b).
The right to resell refers to the status of the computer program as available to the customer at the time of passing it on to the third party.


The customer may only decompile the interface information of the programs within the limits of § 69 e UrhG and only after he has informed us in writing of his intention and has requested at least two weeks notice to provide the necessary interface information. Section XIV 1 and 2 shall apply to all knowledge and information that the customer obtains about the software in the course of decompiling. Prior to any involvement of third parties, he shall provide us with a written declaration from the third party that the latter undertakes directly towards us the obligation to comply with the rules set out in clauses IV and XIV 1 and 2.
All other exploitation activities, in particular rental, lending and distribution in physical or intangible form, the use of the software by and for third parties (e.g. through outsourcing, data center activities, application service providing), are not permitted without our prior written consent.
Our contractual items, documents, suggestions, test programs, etc., which become accessible to the customer before or after conclusion of the contract, are considered intellectual property and business and trade secrets of CAQ AG. They may not be used in any way without our written permission and must be kept secret in accordance with Sections XIV 1 and 2.
The customer acquires the same rights to a modified, expanded or newly created software as to the purchased standard software. As far as the newly provided items replace the already delivered items, the rights to the previous items expire at the time at which the new items can be used.
We are entitled to produce updates to the software at our sole discretion. We make updates available only to customers who have an existing maintenance contract with us at the time of the update.
Should the customer have enhancement requests for the purchased CAQ software, he may inform us of his request via a ticket system. He may influence the prioritization of his enhancement requests by committing to pay a contribution towards expenses. However, these costs do not cover the implementation of his enhancement request, but only the prioritization of his request over other customers’ enhancement request. If the customer informs us of enhancement requests, we are under no obligation to implement them. In the event that CAQ implements an enhancement request as part of an update or new release, the customer automatically transfers to CAQ the non-exclusive, temporally and geographically unrestricted exploitation rights to the enhancement components, which may include the customers enhancement request in whole or in part, retroactively with the notification of the request. Furthermore, the customer acknowledges that each software enhancement will be made available to all CAQ customers.

V. Time of performance, delays, place of performance



Information on delivery and service times is to be found in the order.
Delivery and service deadlines are extended by the period in which the customer is in default of contractual payment and by the period in which we are prevented from delivering or performing the service due to circumstances for which we are not responsible and after a reasonable period of time after the impediment has ended. These circumstances also include force majeure and industrial disputes (strike).
Deadlines shall be deemed extended by the period of time during which the customer fails to cooperate in breach of contract, e.g. fails to provide information, fails to provide access, fails to provide materials or fails to make employees available.
If and as long as the services owed by us cannot be provided or cannot be provided on time due to unavoidable events, we shall not be liable for the delay.
If we subsequently agree other or additional services that affect agreed deadlines, these deadlines shall be extended by a reasonable period of time.
Reminders and deadlines set by the customer must be in writing to be effective. A grace period must be reasonable. A period of less than two weeks shall only be reasonable in cases of extreme urgency.
The place of performance of services is the place where the service is to be provided and is generally determined by the order confirmation. Otherwise, the place of performance for all services arising from and in connection with this contract is the registered office of CAQ AG.

VI. Terms of payment



The agreed remuneration is due without deduction after delivery of the software (for co-ordered services after execution) and receipt of the invoice by the customer and is payable within 14 days. Value added tax shall be added to all payments.
The customer may only offset claims that have been recognized in writing or have been legally established. Except within the scope of § 354 a HGB (German Commercial Code), the customer may only assign claims arising from this contract to third parties with our prior written consent. The customer shall only be entitled to a right of retention or the defense of non-performance of the contract within this contractual relationship. 
In the event of default in payment, we shall charge default interest of 9% above the respective prime rate. We reserve the right to assert further claims for default. 
In the event of a deterioration in the customers creditworthiness, we shall be entitled to demand immediate payment of all claims against the customer, insofar as these are not subject to a defense, and to assert a right of retention against all claims of the customer, even if they are based on other contracts, to demand concurrent performance or the provision of collateral. The same shall apply if the customer is in default, unless he can prove that there are no circumstances jeopardizing our claims.
Statutory claims in the event of justified objections after expiry of the deadline shall remain unaffected.

VII. Handover, transfer of risk, installation locations



We provide the customer with the rights of use and exploitation of the purchased software granted herein in machine-readable form by remote data transmission. The customer shall receive the user manuals for the software as electronic documents. The parties agree that the place of fulfillment for the transfer of the software is the registered office of CAQ AG. The customer bears all costs and risks associated with the transfer. With the transfer of the software, the transportation risk (in particular the risk of accidental loss or destruction) of the copies of the software is transferred to the customer.
The customer is responsible for providing the system environment in accordance with the agreed requirements.
The software shall be installed by the customer himself, unless otherwise agreed.

VIII. Obligations of the customer when purchasing software



The customer is obligated to inspect all delivery items of CAQ AG immediately upon delivery or upon making them available in accordance with commercial law regulations (§ 377 HGB) and to report any recognized defects in writing with a precise description of the defect. The customer shall test each module thoroughly for usability in the specific situation before commencing productive use. This also applies to software that the customer receives after the initial delivery, for example as part of the warranty or a maintenance contract.
The customer shall take appropriate precautions in the event that the program does not work properly in whole or in part (e.g. through data backup, documentation of software use, fault diagnosis, regular testing of results, emergency planning). It is his responsibility to ensure the functionality of the programs working environment. The customer must check for himself whether interface software is necessary for the purpose of communication between the purchased CAQ software and the customers existing IT system and, if necessary, purchase suitable interface software (e.g. CAQ Connect) from us.
The customer must ensure that an appropriate backup routine is set up and that a data backup is carried out before the start of a new installation and before each update.
In order to avoid IT security vulnerabilities and cybercrime, we recommend that the customer regularly informs himself about possible software updates and carries out a corresponding new software update for the purchased software.
Should the customer carry out a software update for the purchased software, he must carry out a new system analysis and system configuration in order to ensure interface communication with his IT system.

IX. Defects of quality (Fault)



The software has the contractual required quality at the time of the transfer and is suitable for the contractually stipulated use, in the absence of an agreed quality, for usual use. It satisfies the criterion of practical suitability and has the usual quality for software of this type; however, it is not free of defects. A functional impairment of the program resulting from hardware defects, environmental conditions, incorrect operation or similar is not a defect. An insignificant reduction in quality shall not be taken into account.
Modifications or enhancements to the software made by the customer himself or by third parties shall invalidate his claims for defects, unless the customer proves that the modification or enhancements is not the cause of the defect. We are also not liable for defects that are attributable to improper operation and operating conditions or the use of unsuitable equipment by the customer. 
In the event of material defects, we are entitled to provide subsequent performance. Subsequent performance shall be effected at our discretion by remedying the defect, by supplying software that does not have the defect, or by demonstrating reasonable ways of avoiding the effects of the defect. The customer must accept at least three attempts to rectify a defect. An equivalent new program version or the equivalent previous program version without the defect shall be accepted by the customer if this is reasonable for him. The installation of software (patches or new versions) is the responsibility of the customer, unless he has ordered the installation with the purchase of the software.
We may refuse subsequent performance until the customer has paid us the agreed remuneration, less a portion corresponding to the economic significance of the defect.
The customer shall support us in analyzing and remedying the defect, in particular by describing any problems that occur in concrete terms, informing us comprehensively and granting us the time and opportunity required to remedy the defect. During the occurrence of a software error, the customer must either create screenshots or a screen recording as part of his documentation obligation. We may choose to remedy the defect at the customers premises or at the customers business premises or remote. The customer must provide the necessary technical requirements at his own expense and grant us online access to the software after our appropriate prior notice.
We agree upon the following error classifications and response times:

Error class 1: Defects that prevent business operation: The error prevents the customers business operations; there is no workaround solution: We shall begin immediately, at the latest within four hours of the error being reported, to rectify the error and shall continue to do so with vigor until the error is rectified, including as far as reasonable outside working hours (Monday to Thursday from 8:00 a.m. to 5:00 p.m. and Friday from 8:00 a.m. to 3:00 p.m.).
Error class 2: Defects hindering business operations: The error significantly hinders the customers business operations; however, the use of the software is possible with workaround solutions or with temporarily acceptable restrictions or difficulties: In the event of an error message before 10.00 a.m., we shall begin to rectify the error on the same day, in the event of a later than 10:00 a.m. error message at the beginning of the next working day and shall continue to do so until the error is rectified within working hours. We can initially demonstrate a workaround solution and eliminate the error later if this is reasonable for the customer.
Error class 3: Defects with low impact: There is a minor impairment of the business processes, i.e. it is a matter of faulty or non-executable individual functions that do not have a major impact. Our response time in these cases is five (5) working days if this is reasonable for the customer.


The deadlines according to clause 6 begin with a defect notification according to clause VIII 1. For the calculation of the deadline, clause V 2, 3 applies. In the event of a difference of opinion regarding the classification of an error in the classes according to clause 6, the customer may demand classification in a higher error class. He shall reimburse us for the additional expense if he is not able to prove that his classification was correct.
We may demand compensation for additional expenses resulting from the fact that the software has been modified, used outside the specified environment or operated incorrectly. We may demand reimbursement of expenses if no defect is found, and the customer has made the complaint due to negligence. The burden of proof lies with the customer. § 254 BGB shall apply accordingly. The agreed daily rates shall apply to the amount of our claim.

X. Defects of title



We warrant that the contractual use of the software by the customer does not conflict with any third-party rights. In the event of defects of title, we shall provide a warranty by providing the customer with a legally unobjectionable right to use the software or equivalent software at its discretion.
The customer must inform us immediately in writing if third parties assert property rights (e.g. copyrights or patent rights) to the software. We shall support the customer in its defense against attacks by third parties by providing advice and information.
Clause IX 3, 8 shall apply accordingly.

XI. Liability



We shall only pay damages or compensation for futile expenses, irrespective of the legal grounds (e.g. from legal and similar obligations, material defects and defects of title, breach of duty and tort), to the following extent:

Liability in cases of intent, fraudulent intent and in cases of guarantee shall be unlimited.
In the event of gross negligence, we shall be liable in the amount of the typical damage foreseeable at the time the contract was concluded.
In the event of simple negligent breach of a cardinal obligation (obligation the fulfillment of which is essential for the proper execution of the contract, the compliance of which the contractual partner regularly relies and may rely on and the breach of which jeopardizes the achievement of the purpose of the contract), we shall be liable in the amount of the typical damage foreseeable at the time of conclusion of the contract, but not exceeding EUR 150,000 per claim and EUR 500,000 for all claims arising from and in connection with the contract as a whole.


We reserve the right to object to contributory negligence. In particular, the customer shall be obliged to back up data and defend against malware in accordance with the respective current state of technology.
We shall not be liable for the loss of data insofar as the damage is due to the fact that the customer has failed to carry out data backups and thus contribute to the fact that lost data can be restored with reasonable effort.
The above clauses shall also apply in favor of our corporate bodies and vicarious agents.
In the event of injury to life, limb and health and in the event of claims under the Product Liability Act, the statutory regulations shall apply without modification.

XII. Statute of limitations



The limitation period for claims according to clauses IX to XI is:

In the case of material defects, repayment claims of the purchase price based on the right to withdrawal or reduction, one (1) year starting from delivery of the software, but for defects duly notified within the limitation period not less than three (3) months from submission of the legally effective declaration of withdrawal or reduction;
one (1) year for other claims arising from material defects;
two (2) years for claims arising from defects of title, if the defect of title does not lie in a right of a third party, on the basis of which the third party can demand the return of the items mentioned in clause III 7 or demand the cessation of their use;
two (2) years in the case of claims for damages or compensation for futile expenses not based on material defects or defects of title; the period shall commence at the time at which the customer became aware of the circumstances giving rise to the claim or should have become aware of them without gross negligence.


The limitation period shall commence at the latest upon expiry of the maximum periods specified in § 199 BGB. No. 1 of this clause shall not apply to claims for damages and reimbursement of expenses arising from intent, gross negligence, warranty, fraudulent intent and in the cases specified in clause XI 3.

XIII. Beginning and end of the customers rights



Ownership of the delivered software and the rights pursuant to clause IV shall not pass to the customer until the contractual remuneration has been paid in full. Prior to this, the customer only has a provisional right of use, which is only subject to the law of obligations and can be revoked in accordance with No. 2.
We may terminate the rights under clause IV for good cause. Good cause shall be deemed to exist if, considering all circumstances of the individual case and weighing up the interests of both parties, we cannot reasonably be expected to continue to allow the use of the software by the customer, in particular if the customer is in material breach of clause IV. The statutory regulations shall apply to the rescission of the contract due to the customers default in payment.
If the rights under clause IV do not arise or if they end, we may demand the return of the items provided to the customer or written assurance that they have been destroyed, as well as the deletion or destruction of all copies of the items and written assurance that this has been done.

XIV. Confidentiality, data protection, consent to reference



The contracting parties undertake to treat all items (e.g. software, documents, information) confidential which they receive or become aware of from the other contracting party before or during the execution of the contract and which are legally protected or contain business or trade secrets or are designated as confidential, even after the end of the contract, unless they are publicly known without breach of the confidentiality obligation. The contracting parties shall store and secure these items in such a way that access by third parties is excluded.
The customer shall only make the contractual objects accessible to employees and other third parties who require access to perform their official duties. He shall instruct these persons about the confidentiality of the items.
We shall process the customers data required for business transactions in compliance with data protection regulations. 
The customer grants us the right to name the customer as a reference on our website www.caq.de and in our print media using the customers company logo within the scope of their commercial activities, irrespective of the transmission, carrier and storage technologies. This consent may be revoked for good cause with the effect for the future; our legitimate interests will be considered.

XV. Services

Has the customer ordered a service (e.g. installation, parameterization, project support for system introduction, system analysis for the integration of our software), the following provisions shall apply in addition to the order. All services that are to be provided once as part of the purchase contract or thereafter and are not covered by the maintenance contract are deemed to be services.



We perform all services remotely via web. If agreed upon, we also provide services on-site at the customers premises. 
Unless otherwise agreed, training courses take place on the premises of CAQ AG.
Upon customer’s request and costs the training may be carried out on his premises if he provides the necessary technical equipment. 
The customer must then reimburse the agreed and stated travel costs, expenses and accessories as they may be arisen. 
We may postpone a service date for good cause. We shall inform the customer of the cancellation of an appointment in good time and offer alternative dates.
Remote services are billed either in full daily rates (3 to 6 hours) or in half daily rates (1 to 3 hours). A half-day rate shall be deemed to have been commenced if a period of more than 30 minutes is exceeded.
Services performed on-site at the customers premises shall be invoiced at a minimum of two daily rates of 6 hours each. The documentation, preparation and follow-up of on-site assignments is included at a flat rate. This takes place outside the net working time.
We will invoice the customer for any costs incurred due to postponements and cancellations by the customer (e.g. flight, hotel, rental car, etc.).
Postponements and cancellations by the customer are possible free of charge 14 days before the agreed date. Otherwise we reserve the right to invoice postponements and cancellations as follows:
 
From the 13th day before the appointment, we will charge 20% of the respective daily rate. 
From the 7th day before the appointment, we will charge 60% of the respective daily rate.


Additional services requested by the customer (e.g. consulting and support with program installation) shall be invoiced in accordance with our written offer.
All prices quoted for services are daily rates plus arrival/departure, accommodation and expenses. The details can be agreed individually with the customer.
The customer shall release his employees qualified for the fulfillment of services from other activities to an appropriate extent. The customer shall provide the materials (hardware, network and system software, database software and test data) in good time, provide information and grant us access to rooms, hardware and software and telecommunications facilities to a reasonable extent.
We shall request the customers cooperation services in good time and in a specified manner.

XVI. Final provisions



Amendments and additions to the contract must be made in writing, e.g. by e-mail, to be effective. The written form requirement can only be waived in writing. Compliance with the written form requirement is a prerequisite for the validity of the declaration. Transmission in text form, in particular by e-mail, is sufficient to comply with the written form requirement.
The law of the Federal Republic of Germany shall apply with the exclusion of the conflict of laws and the UN Convention on Contracts for the International Sale of Goods.
The exclusive place of jurisdiction for all disputes arising from and in connection with this contract shall be Frankfurt am Main.
If the contracting parties have concluded the contract in a German and an English version, only the German version shall be decisive for the legal effects between the parties.

Licensing Terms

1. Subject of the Contract

Subject of the contract is the software program, provided via download or data storage device, the program description and operating instructions, as well as other appropriate written material. They are referred to as “software” from here forward. CAQ AG Factory Systems makes it known that it is not possible, at the current stand of technology, to create computer software in such a way that it operates completely error free in all applications and combinations. The subject of the contract is therefore only software which is basically useful as defined by the program description and the operating instructions.

2. Range of Use

For the duration of this contract, CAQ AG Factory Systems grants you the non-exclusive right (hereinafter also referred to as "license") to use the enclosed copy of the software. The licenses at hand are so-called floating licenses. This means that the actual number of users who may use the software-system simultaneously is determined by the number of licenses you have purchased. Depending on the license model selected, the Software may be used either only in one location or across multiple locations.

A location in the sense of this contract is defined as the headquarters, branch office, subsidiary, or independent production facility of a company and its affiliated companies. For the purposes of these Terms and Conditions, all business units and subsidiaries in which the licensee directly or indirectly holds at least fifty (50) percent of the capital or shares with voting rights are to be considered affiliate companies. This may also be reciprocal.

3. Special Limitations

The license holder is forbidden to amend, translate, reverse engineer, decompile, or disassemble the software, to create any projects derived from the software, or to reproduce the accompanying written material without explicit previous written consent of CAQ AG Factory Systems.

4. Ownership of Rights

By purchasing this product, you gain ownership of a license to use the software. Ownership of rights to the software itself is not connected to any such purchase. The delivered or to be delivered software packages are the intellectual property of CAQ AG Factory Systems. CAQ AG Factory Systems reserves all rights connected to publication, reproduction and duplication, revision, and usage of the software.

5. Transfer of User Rights

The user rights to this software can only be transferred to a third party with explicit previous written consent from CAQ AG Factory Systems and under the conditions of this contract. Giving the software as a present, as well as renting or leasing of the software is prohibited.

6. Duration of Contract

This contract is valid for an undetermined period of time. The right of the license holder to use this software becomes invalid automatically, without prior notice, when the licensee violates the provisions outlined in this contract. When usage rights expire, the licensee is obliged to delete or destroy all copies of the software including any amended copies as well as any accompanying written material (exempted from this are backups).

7. Damages Due to Contract Violations

CAQ AG Factory Systems hereby declares that you are liable for resulting damages to CAQ AG Factory Systems that stem from a violation of these contract provisions and occur due to copyright violations.

8. Changes and Updates

CAQ AG Factory Systems has the right to release updates of the software according to its own judgment. CAQ AG Factory Systems is not obligated to make updates of the program available to license holders that do not have a valid TSP contract or have not paid the update fee.

9. Warranty and Liability of CAQ AG Factory Systems

a) CAQ AG Factory Systems guarantees that no defects are present at the time of the transfer of the download or data storage device which contains the software and the accompanying hardware during normal usage conditions and normal service.
b) If the data storage device or download or the delivered hardware should be defective, then the buyer can expect an exchange during the warranty period of 6 months after delivery.
c) If an error as described in 9b) cannot be corrected by replacing the product within a reasonable time period, the buyer can either demand a reduction in price or cancellation of contract.
d) CAQ AG Factory Systems does not assume liability due to the reasons stated under 1. for any software defects. CAQ AG Factory Systems is not responsible to assure that the software suits the buyers needs and purposes or that it will work with other programs. The buyer assumes responsibility for the correct choice of software and the consequences of usage, as well as for any results, actual and planned. The same applies for the accompanying written material. If the software is not basically usable in the sense of 1., then the buyer has the right to cancel the contract. CAQ AG Factory Systems has the same right if the production of software in order to fulfil the clause under 1. is not possible with due effort.
e) CAQ AG Factory Systems is not liable for damages unless they are caused due to negligence of CAQ AG Factory Systems. Liability in the case of written guarantees of features is not part of this. Liability for damages caused by defects, which are not part of the assurance, are excluded.