Conditions
General Terms and Conditions of Contract of ProDigital Consulting GmbH
ProDigital Consulting GmbH, Lise-Meitner-Straße 3-1, 89081 Ulm, Germany ("Licensor") offers oftware ("Software"), which it provides to the "Licensee" for use and which enables the Licensee to provide its Customers ("Customers") with an individualized configurator for various types of products ("Configurator"). The Licensee has either registered online for the use and booked certain services or agreed the services in a separate order with the Licensor (online booking and separate order together "Order"). In addition to the provisions in the Order, the following "Terms of Use" (together with the Order "Agreement") shall apply:
- Subject of the Agreement
1.1. The subject of the Agreement are the services agreed in the order, namely either the provision of the Software on a temporary basis ("Cloud Solution") or the purchase of the Software ("On-Premises Solution"). In the case of the Cloud Solution, the Licensee may create its own configurators for its Customers. In the case of the On-Premises Solution, the Licensor creates a finished Configurator for the Licensee, who can offer it to its Customers.
1.2. The agreement may also cover maintenance and support services and/or individual development services.
1.3. The functional scope of the Software is provided in the Order. The Licensee can order additional functions at any time (in the case of the Cloud Solution also online). The extended scope of functions shall then apply for the remaining term of the contract according to section 14.
1.4. To the extent agreed in the order, the Licensor may make certain functions of the Cloud Solution available to the Licensee free of charge for testing purposes for a period specified in the order ("Test Period"). In the case of an online booking, the provisions in section 3.1 apply, in any case the further provisions in section 4
1.5. The Licensor shall not be obliged to provide error-free configuration data. It merely provides a tool that facilitates the planning of a product and the ordering of necessary materials. The Licensor points out that this is no substitute for a careful examination of the data and planning prior to execution, especially in the case of construction projects, for which the Licensee and its Customers are responsible. The Licensee shall inform its Customers accordingly. - Principles of Cooperation
2.1. The parties shall trustfully cooperate and shall constructively seek a solution in the event of disagreement. If a solution is not possible, the parties shall first attempt to find a solution at the management level or another senior level of their companies. This shall not affect the right of the parties to initiate legal proceedings.
2.2. The Licensee shall provide the Licensor with the information, data, content and documents required for the performance of the services and shall also otherwise perform all necessary acts of cooperation. The Licensee shall bear all expenses associated with the provision of cooperation services.
2.3. The Licensee shall be solely responsible for its IT infrastructure, in particular for its installation and operation, and shall bear all necessary expenses, as well as for the Internet connection required for use. This shall also apply to any hardware and Software purchased in the course of the provision of the service on the advice of the Licensor. In the case of the On-Premises Solution, the Licensee is additionally responsible for the operation of the Software, unless it is agreed that the Licensor hosts it on its servers ("Hosted Solution"). Any maintenance obligations of the contractor according to section 12. shall not be affected.
2.4 To the extent the Licensee makes use of individual services of the Licensor and the parties have not agreed on a different remuneration, these services shall be rendered according to an hourly rate of 140.00 EUR. Each 15 minutes period or part thereof shall be invoiced.
2.5. If the Licensee fails to comply with required cooperation obligations or fails to comply with them properly, the Licensor's obligation to provide services shall be suspended to the extent and for the period in which the provision of services depends on the Licensee's prior compliance with cooperation obligations. The Licensor shall be entitled to demand compensation for any additional expenditure incurred as a result of a missing or delayed act of cooperation in accordance with the hourly rate specified in section 2.4.
2.6. The Licensor is entitled to use subcontractors for the provision of all services. Any deviating data protection regulations between the parties shall remain unaffected.
2.7. If the Licensee allows third parties to use the Software, he shall be liable for their actions as for its own actions, irrespective of whether these third parties were allowed to use the Software. The Licensee shall ensure that the third parties are aware of the provisions of this agreement and that they comply with them. - Registration, Conclusion of the Agreement and Delivery
3.1. The Licensee may register for the Cloud Solution itself. The registration is free of charge and results in the conclusion of an agreement of use for the free Test Period, during which the Licensee can use the Software in accordance with the provisions in section 4.
3.2. Making the Configurator available to Customers ("Productive Use") requires the booking of the corresponding functionalities, which can be made after entering the corresponding payment data in an online form ("Registration Form") and which is subject to a remuneration.
3.3. The Registration Form does not constitute a contractual offer by the Licensor to enter into a contract for the Productive Use, but an invitation to the Licensee to make an offer, which the Licensee makes by submitting the Registration Form. The Licensee's employee submitting the Registration Form represents and warrants that he or she can validly represent the Licensee and bind the Licensee accordingly. The Licensor may decide at its sole discretion to accept or reject the offer. The Agreement for the Productive Use comes into effect either through confirmation by the Licensor in text form or activation of the functions for the Productive Use.
3.4. In the case of the On-Premises Solution, the Licensor provides one or more Configurator(s) for the Customers according to the specifications agreed in the order. Depending on the agreement, this shall be done either by installation on servers of the Licensee by the Licensor or on a server of the Licensor and provision of a link for the Customers. The Licensee shall provide the necessary access data. - Test Period
4.1. During the Test Period, the Configurator may only be used by Users (as defined in section 5.1). Productive Use, in particular offering the Configurator to Customers, is prohibited. In particular, the Licensee is not entitled to create Customer accounts or submit account data in order to use the Configurator during the Test Period. During the Test Period, the Licensee is also prohibited from carrying out configurations for Customers or together with Customers by using the Software.
4.2. If the Licensee does not register for the Productive Use within twelve weeks after registration, the Licensor is entitled to delete the accounts. The contract for the free Test Period ends with the deletion. The Licensor will announce the deletion in advance after 10 weeks. - User Accounts
5.1. The Licensee may create any number of user accounts ("Users") for its own employees. The accounts must be personalized for each user. The creation and/or use of accounts that are used by several persons ("Collective Accounts") is not permitted.
5.2. The Licensee must take organizational measures (e.g. appropriate instructions) to ensure that (i) the data entered is correct and (ii) the users do not pass on their access data. Insofar as the Licensor provides various security options for login (e.g. multifactor authentication), the Licensee is responsible for the configuration and selection.
5.3. The Licensor is not responsible for misuse and/or the alteration or deletion of data in particular if this could have been prevented by selecting a different security option.
5.4. In the event of a breach of the above provisions, the Licensor reserves the right to block user accounts, if reasonable, following a corresponding prior warning in text form. - Scope of Use
6.1. In the case of the Cloud Solution, the Licensor shall enable the Licensee to store its own data to the extent agreed in the Order ("Data Volume"), unless agreed therein, to the extent of a maximum of 5 GB.
6.2. Unless otherwise agreed in text form, the Licensee may only provide the Configurator at one domain. - Rights to the Software
7.1. The Licensor grants the Licensee a worldwide, non-exclusive, non-transferable right, limited to the term of the contract in the case of the Cloud Solution and timely unlimited in the case of the On-Premises Solution, to use the Software for its own purposes. The right of use is limited to using the Cloud Solution to create one's own Configurator, which the Licensee makes publicly available to its Customers. In the case of the On-Premises Solution hosted on servers of the Licensee, the Licensee is entitled to make it publicly available for use by the Customers. The Licensee is entitled to allow users to use the Software.
7.2. The Licensee shall comply with the agreed scope of the license. If a limitation of the scope of use has been agreed (e.g. the use of the Configurator only at one domain or a Data Volume) and the Licensee exceeds this scope, the Licensor shall be entitled to demand additional reasonable remuneration to be calculated on the basis of the prices communicated by the Licensor to the Licensee or publicly or, if such prices do not exist, taking into account the agreed volume and the extent of the excessive use. This shall also apply in the event that the Licensee or the users enable unauthorized persons to use the Software by submitting their account data.
7.3. The Licensee may not use the Software for purposes other than those specified in the Agreement and shall protect the Software from unauthorized access by third parties. Without limiting the generality of the foregoing, Licensee shall not, in particular, (i) use the Software or any part thereof for any purpose other than the creation of a Configurator which it makes available to its Customers, (ii) distribute, sell, resell, lease, rent, loan or otherwise transfer, sublicense or assign any rights in the Software or any part thereof to any third party without the prior written consent of Licensor, (iii) disclose or make available the Software or any part thereof to any third party or permit any person other than the Users to access the Software in any way, including, without limitation, by passing on access data and/or using Collective Accounts (iv) modify, add to, alter or adapt the Software, (v) reverse engineer, decompile, translate, disassemble the Software or any part thereof or disassemble any data formats forming part of the Software and/or otherwise attempt to discover the source code of the Software or any part thereof (except as permitted by mandatory law); (vi) make copies of the Software or any part thereof other than the copies necessary for the operation of the On-Premises Solution, if agreed; (vii) use the Software for the development of a competing product or service; (viii) disable, modify or circumvent any license management system or security mechanism provided with the Software, (ix) access or use the Software to provide data processing or batch processing services to others, (x) include the Configurator under more than one domain unless otherwise agreed in text form, or (xi) remove, alter or conceal any proprietary or copyright notices, trademarks or other marks of Licensor or any third party rights holder. The Licensee's right to make the Configurator publicly available to Customers for use remains unaffected.
7.4. The statutory rights of the Licensee under Section 69d (2) and (3) and Section 69e of the German Copyright Act shall remain unaffected, provided, however, that (i) decompilation of the Software under Section 69e of the German Copyright Act may only take place after prior written request to the Licensor in which the Licensor requests the required information and the Licensor fails to provide the required information within two weeks, and (ii) the parties enter into a corresponding non-disclosure agreement.
7.5. If the Licensee submits change requests with regard to the Software or makes suggestions for improvement, the Licensor shall be entitled, but not obliged, to implement them, unless changes are the subject of agreed development services (see section 13.). Unless otherwise agreed, the Licensor shall be entitled to make the results available to other Customers both in the case of agreed development services and in the case of changes made without legal obligation. To the extent the results contain contributions by the Licensee, the Licensee shall grant the Licensor an irrevocable, non-exclusive, transferable right of use, unrestricted in time and place. The right of use includes in particular the rights of reproduction, distribution and making available to the public as well as other public reproduction, the right to edit the results and to transfer the rights granted to third parties. Any warranty claims shall remain unaffected.
7.6. In the event that the Software infringes the rights of third parties, the Licensor shall, at its own expense and at its own discretion, either procure the necessary rights of use for the Licensee or modify the contractual services in such a way that they no longer infringe the property rights of third parties. If the Licensor is not in a position to procure the necessary rights of use or to modify the contractual services accordingly, it shall be entitled to terminate the agreement. Further rights of the Licensee remain unaffected.
7.7. If a claim is made against the Licensee due to an infringement of the rights of third parties, for which the Licensor is responsible, the Licensor shall indemnify the Licensee within the scope of the provision under 17. and shall reimburse the Licensee for the costs of a legal defense in accordance with the statutory fees, provided that the Licensee (i) immediately notifies the Licensor of the claim, (ii) does not take any action vis-à-vis third parties which may have an effect on the legal dispute (e.g. an acknowledgement or the conclusion of a settlement), (iii) adequately supports the Licensor in the legal defense and (iv) allows the Licensor to determine and implement the strategy of the legal defense, in particular by selecting lawyers and drafting pleadings. The Licensee will submit any necessary declarations. The Licensor shall reasonably consider the interests of the Licensee. - Hosting
8.1. The Cloud Solution or the Licensee Hosted Solution shall be available to the Licensee on average 99.5% during the calendar year ("Availability Time"), as far as the Software is used in the contractually agreed sense. The availability time does not include failures caused by the following circumstances ("Unconsidered Downtime"):
8.1.1. announced maintenance work in accordance with section 8.4;
8.1.2. unforeseeable, urgent maintenance work, e.g. to eliminate security issues;
8.1.3. force majeure or other events beyond the Licensor's control which could not have been foreseen and prevented by the Licensor, in particular strikes, lawful lockouts, special weather conditions, power failures, traffic interruptions, fire damage, epidemics and pandemics (in particular COVID-19), changes in the law and official decrees as well as operational disruptions or supply difficulties, to the extent they are not the fault of the Licensor ("Force Majeure");
8.1.4. third parties that are not subcontractors of the Licensor;
8.1.5. the Licensee or the software or hardware used by it or the internet connection. This shall also apply to software the use of which the Licensor has mediated and/or the connection of which the Licensor enables by means of an API;
8.1.6. the delayed reporting of faults and downtime by the Licensee.
8.2. The availability time is therefore calculated according to the following formula:
(Total time - unconsidered downtime- other downtime)
Maximum availability × 100
8.3. The burden of proof for falling short of the availability time shall be borne by the Licensee.
8.4. The Licensor is entitled to carry out regular maintenance work but will try to keep interruptions to a minimum. The Licensor shall inform the Licensee at least one week before the start of the work. In urgent cases, for example to eliminate security issues, the Licensor may shorten the notice period or, if not otherwise possible, start the maintenance work without prior notice. If prior notice is not possible, the Licensee shall be informed immediately after the work has begun.
8.5. The Licensor shall use state-of-the-art virus scanners and firewalls to prevent unauthorized access to the Software and the intrusion of harmful data. If a risk cannot be eliminated in any other way with reasonable effort, the Licensor shall be entitled to delete harmful data. He shall inform the Licensee of this as early as possible.
8.6. No maintenance obligations exist with regard to any third-party Software connected via APIs. - Licensee Content, Configurators, Sending of E-Mail
9.1. The Licensor enables the Licensee to store its own data on the hardware of the Licensor and (also in the case of the On-Premises Solution) to send its own content in an e-mail newsletter with the Software (together "Licensee Content") as part of the use of the Cloud Solution and the Hosted Solution. The Licensor is in no way responsible for checking the Licensee Content, in particular also not for ensuring that the Configurator works error-free with the Licensee Content. Only the Licensee is responsible for the Licensee Content, irrespective of whether it has entered it itself or enabled a third party to do so and irrespective of whether the entry by the third party is permitted under the Agreement. The following provisions shall apply to the Licensee Content:
9.1.1. The Licensee shall ensure that the Licensee Content does not violate or infringe any statutory provisions and/or rights of third parties, in particular the intellectual property of third parties, their personal rights, provisions under competition law or data protection law.
9.1.2. In the case of sending e-mail newsletters, the Licensee must also ensure that effective consent has been obtained from the Customers and/or third parties contacted and that all other data protection requirements have been complied with.
9.1.3. Should the Licensee breach the obligations in section 9.1.1 the Licensor shall be entitled to require the Licensee to delete any infringing content. To the extent necessary, the Licensor shall be entitled to delete the infringing content without prior notice. Furthermore, the Licensee shall indemnify the Licensor against any third-party claims arising from the infringement, reimburse the Licensor for reasonable legal defense costs and provide the Licensor with all information, documents and statements required for the legal defense.
9.2. The Licensor is entitled to delete stored configurators that have not been released to Customers, including the associated Licensee content, after two years. The Licensor will announce this in text form at least two weeks in advance. - Updates
The Licensor shall be entitled, but not obliged, to install updates of the Software. The Licensor is entitled to adapt and change the performance spectrum of the Software to technical progress insofar as the agreed functionalities are not significantly impaired. The Licensor does not have to pay attention to a possible downward compatibility with Software of third parties that does not correspond to the respective current status and/or to a possible interoperability with Software of third parties. This shall not apply if this interoperability has been expressly agreed. Warranty claims remain unaffected. For updates of the On-Premises Solution hosted by the Licensee, the Licensee shall provide corresponding access data. - Data Loss
11.1. The Licensee is responsible for making backups of the Licensee Content. The Licensor will back up the data appropriately but points out that the Software does not serve as a backup solution. The Licensee is therefore responsible for sufficient data backup. The Licensor shall not be liable for any loss of data (such as product data entered) that could have been prevented if the Licensee had made its own adequate backup.
11.2. To the extent the Licensor is responsible for a loss of data, liability shall be limited to the typical recovery expenditure that would have been incurred if back-up copies had been made regularly in accordance with the state of the art. The limitation of liability according to section 17. shall remain unaffected. - Onboarding, Maintenance and Support
12.1. The Licensor shall assist the Licensee with the customized configuration as part of the onboarding process. Unless otherwise agreed in the order, onboarding services to the extent of a maximum of eight hours are included in the set-up fee according to section 15.2.("Included Support"). The Licensor shall charge for further services at the hourly rate specified in section 2.4. This shall also apply if the Licensee makes use of onboarding services before booking a service that is subject to a remuneration. These will be credited against the set-up fee in the event of a later booking.
12.2. Unless otherwise agreed in the order, the Licensor shall not be obliged to provide adaptation services that are not a mere configuration.
12.3. The Licensor provides support services via chat, by telephone and by e-mail ("Communication Channels") from Monday to Friday, in each case from 9 a.m. to 5 p.m. CET/CEST ("Service Hours"), but not on public holidays in the state of Baden-Württemberg, Germany.
12.4. If an Included Support has been agreed, is shall not apply to the extent disruptions are caused by the circumstances listed in sections 8.1.4, 8.1.5 or 8.1.6 in particular in cases of improper operation by the Licensee. The possibility of making use of support services subject to a separate remuneration in accordance with 12.3 shall remain unaffected.
12.5. The Licensee shall report malfunctions and downtime not caused by maintenance work immediately via the communication channels and shall ensure that it provides the following information:
12.5.1 description, date and time of the incident,
12.5.2. affected functionality,
12.5.3. preliminary classification of priority according to section 12.7,
12.5.4. measures already taken by the to rectify the incident.
12.6. At the request of the Licensor, the Licensee shall provide any further assistance and information necessary to remedy the malfunction. The provision in sections 2.5 apply accordingly.
12.7. In the event of malfunctions, the following response times shall apply, provided the Licensee has 12.5 the following response times shall apply:
Level
Priority
Description
Response time
1
Critical
All agreed functionalities are completely unavailable.
4 hours
2
High
One or more agreed functionality/functionalities is/are completely unavailable.
8 hours
3
Medium
Agreed functionalities of the Software are impaired. General support requests.
24 hours
4
Low
Other minor errors.
48 hours
12.8. If a reasonable workaround is available or provided by the Licensor, the failure shall be deemed to be a Priority Level 4 failure.
12.9. If, in the opinion of the Licensor, the Licensee's priority classification is not correct, the Licensor shall decide on the priority level at its reasonable discretion (Section 315 of the German Civil Code).
12.10. Within the applicable response times, the Licensor will begin to rectify a malfunction. Times outside the service times are not considered response times.
12.11. The Licensor is not obliged to rectify a malfunction within the response times, but will use its best efforts to rectify it as quickly as possible and will regularly inform the Licensee of the progress of the fault rectification. - Services
13.1. Insofar as the Licensee requests individual development services from the Licensor, these are mere services (Dienstleistungen), unless the provision of a specific result (Werkleistung) has been expressly agreed.
13.2. Unless otherwise agreed in writing, agreed completion dates are non-binding.
13.3. Unless otherwise agreed, remuneration shall be paid in accordance with the hourly rate set out in section 2.4. In derogation thereof, the parties may agree on a fixed price.
13.4. If the parties have agreed on certain specifications, they may propose changes at any time ("Change Request"). In the event of a Change Request by the Licensee, the Licensor shall check within a reasonable period of time whether it can implement the change. Unless the parties agree otherwise, the hourly rate specified in section 2.4 shall apply. This shall also apply if a fixed price was agreed for the originally agreed service. Any agreed completion dates shall be postponed by a reasonable period of time.
13.5. If the parties have agreed on the provision of a specific work result (Werkleistung) it shall be accepted in accordance with the following provisions (Abnahme):
13.5.1. Unless otherwise agreed, acceptance shall take place after overall completion. If the Licensee does not object in text form within two weeks of the notification of completion received in text form, a work shall be deemed to have been accepted. The Productive Use of work performed by the Licensor shall be considered an acceptance.
13.5.2. The Licensee may only refuse acceptance if the contractually agreed and documented requirements are not fulfilled, and the Licensee specifies these unfulfilled requirements in text form. In this case, the Licensor shall fulfil the missing requirements and the Licensee shall subsequently accept the work. The Licensee may not refuse acceptance due to insignificant defects.
13.5.3. If partial acceptances have been agreed, the overall result shall be deemed accepted with the last partial acceptance.
13.5.4. Warranty claims with regard to defects with regard to which the Licensee has not reserved its right to rectify in text form at the time of acceptance are excluded. - Term, Extension and Termination
14.1. The Productive Use is agreed for the term regulated in the order for one month, 12 months or 36 months ("Initial Term").
14.2. Unless otherwise agreed in the order, the agreement shall be renewed in each case for a period corresponding to the Initial Term ("Renewal Period") unless it is terminated by one of the parties with one month's notice taking effect at the end of the Initial Term. This shall apply accordingly to the end of each Renewal Period.
14.3. If a test for certain functions has been agreed (outside or in addition to the Test Period), the function can be blocked by the Licensor after 30 days of use. An agreement in for the Test Period shall terminate in accordance with the provision in section 4.2.
14.4. The right of the parties to terminate the agreement for good cause remains unaffected. Section 543 para. 2 no. 1 of the German Civil Code shall not apply.
14.5. Notices of termination must be given in writing.
14.6. Upon termination of this Agreement, the Licensee may, in the case of the Hosted Solution, move the Software to its own servers or those of third parties; in the case of the Cloud Solution, the Licensee shall immediately cease use. Unless otherwise agreed, the Licensor shall continue to store the Licensee Content for six weeks after the end of the Agreement ("Transition Period") and then delete it irretrievably. During the Transitional Period, the Licensee may export the Licensee Content or request the Licensor to export it against payment of the remuneration set out in section 2.4. The Licensee may request an extension of the Transitional Period by one month by submitting a respective request in text form, which must be received by the Licensor at least one week before the end of the Transitional Period. The agreed remuneration shall be paid for each extension of the Transitional Period by one month. - Remuneration, Price Adjustment
15.1. The Licensee is obliged to pay the remuneration agreed in the order. The remuneration for the Cloud Solution shall consist of a monthly payment to be paid in advance in each case. Unless otherwise agreed the remuneration for the On-Premises Solution is a lump sum.
15.2. In addition to the remuneration according to section 15.1 the Licensee shall pay the set-up fee agreed in the Order.
15.3. If an On-Premises Solution is agreed, the Licensee shall additionally pay the remuneration agreed in the Order for maintenance services. In the case of the Cloud Solution, maintenance services are included. For support services the provisions in sections 12.3 and 12.4 shall apply.
15.4. In the event of the volume of use being exceeded in accordance with section 7.2 the Licensee shall be obliged to pay the further remuneration provided therein. The remuneration for the increased volume shall then be deemed agreed for the further term of the Agreement.
15.5. All prices are net prices and are subject to the applicable sales tax.
15.6. If a Licensee’s payment of the agreed remuneration in an amount corresponding to the sum of three current monthly payments for the provision and maintenance of the Software is delayed, the Licensor shall be entitled, in addition to the statutory consequences of a delay, to block the use of the Software for the Licensee until the Licensee's payment has been made in full. - Warranties
16.1. Warranty claims shall be governed exclusively by this provision. The Licensor guarantees that the services have the agreed quality. The agreed quality results exclusively from the Agreement and any agreed documentation. All descriptions of the Software in offer documents, correspondence or manuals are no binding agreements on quality. If a Test Period has been agreed, the agreed quality shall also be based on the functionalities that the Licensee has been able to test.
16.2. The Licensor's warranty shall not apply in the event that a defect was caused by the fact that
16.2.1. the Licensee or its employees have used the Software improperly,
16.2.2. the Licensee has failed to cooperate or has failed to do so in a timely manner,
16.2.3. the system environment or hardware of the Licensee is not suitable for the use of the Software
16.2.4. third-party services not subcontracted by the Licensor or services by employees of the Licensee were used or
16.2.5. the Licensee has noticed defects during the Test Period and has not complained about them.
16.3. In the event of a defect the Licensor shall have the right to rectify the defect twice before the Licensee can assert further statutory warranty claims. In each case, the Licensor shall be given a reasonable period of time to remedy the defect. A reasonable period shall be at least four weeks.
16.4. The Licensor is not responsible for third-party software. The Licensor is only responsible for the interoperability between the Software and the third-party software to the extent that the provision of an API has been agreed in writing and a defect concerns the functionalities of this API.
16.5. If the Licensee claims a defect and it turns out that there is none, the Licensor may charge for the expenses incurred by him at the hourly rate set out in section 2.4.
16.6. In the case of insignificant defects, warranty claims are excluded.
16.7. The Licensee shall only be entitled to any claims for damages in accordance with the provisions in section 12.
16.8. The following provisions shall additionally apply in case of the Cloud Solution:
16.8.1. The statutory warranty provisions shall apply with the exception that the Licensor shall not be liable regardless of fault for damage that already existed at the time the Software was provided (section 536a (1) of the German Civil Code) and the Licensee's right to remedy defects itself is excluded (Section 536a (2) of the German Civil Code).
16.8.2. The Licensee may not enforce a reduction by deduction from the agreed remuneration. Corresponding claims for enrichment (bereicherungsrechtliche Ansprüche) or damages shall remain unaffected.
16.8.3. The Licensee is obliged to report defects in the Software to the Licensor in text form without delay and in such a way as to enable the Licensor to reproduce the defect. The Licensor shall not be liable for any damage caused by the Licensee’s delayed reporting of a defect.
16.9. If the parties have agreed on the provision of a specific work (Werkleistung), the following provisions shall additionally apply:
16.9.1. The Licensee shall inspect completed services for any defects immediately after completion of a milestone. Warranty claims are excluded if the Licensee has not given notice of a defect in text form within two weeks after completion of the milestone. If a Test Period has been agreed, defects must be reported by the end of the Test Period. This shall not apply to defects that are not recognizable. The Licensee must give notice of these within two weeks of becoming aware of them.
16.9.2. The Licensee may only remedy a defect himself or have it remedied by a third party if the Licensor has agreed to this in text form.
16.9.3. The Licensor shall have the right to choose whether to remedy a defect by repair or replacement. - Liability
The Licensor's liability for payment of damages and reimbursement of expenses is excluded unless otherwise provided for in the following provisions.
17.1. The exclusion of liability does not apply to damage caused by culpable breach of an essential contractual obligation in a manner that jeopardizes the achievement of the purpose of the contract. Essential contractual obligations are obligations the fulfilment of which makes the proper performance of the contract possible in the first place and compliance with which the contractual partner regularly relies on and may rely on. However, liability is limited to the damage typical for this type of contract, the occurrence of which each contracting party had to expect on the basis of the circumstances known to it at that time. With regard to this typical contractual damage, the Licensor's liability for property damage and further financial losses resulting therefrom is limited to an amount of € 50,000.00 per case of damage.
17.2. Furthermore, the exclusion of liability does not apply to damages resulting from injury to life, body or health which are based on a negligent breach of duty by the Licensor or its legal representatives or vicarious agents.
17.3. The exclusion of liability does not apply to damage caused by an intentional or grossly negligent breach of duty by the Licensor or its legal representatives or vicarious agents.
17.4. To the extent the liability of the Licensor is excluded or limited, this shall also apply to the liability of the legal representatives, employees and vicarious agents of the Licensor.
17.5. If the Licensor has given a guarantee for the quality of the Software, the content of this guarantee shall not be affected by the above limitation of liability.
17.6. Liability under the Product Liability Act remains unaffected. - Force Majeure
Neither party shall be liable for damage caused by Force Majeure (see section 8.1.3). In cases of Force Majeure, the party affected thereby shall be released from such performance for the period during which it is prevented from performing due to the Force Majeure. The affected party shall notify the other party of the occurrence and cessation of the Force Majeure and shall use its best efforts to minimize its effects. - Statute of Limitation
All claims arising from and in connection with this Agreement against the Licensor and/or its legal representatives, employees and vicarious agents, in particular claims for defects, claims for damages or claims for reimbursement of expenses, shall become statute-barred after one year, irrespective of whether they are contractual or statutory claims. The commencement of the limitation period shall be governed by the statutory provisions. The limitation period shall not apply in cases of (i) intent, (ii) gross negligence, (iii) breach of a material obligation within the meaning of section 17.1, (iv) personal injury, (v) liability under the Product Liability Act, (vi) fraudulent concealment of a defect and (vii) defects to which section 438 (1) no. 2 of the German Civil Code applies. The Licensee's right to rectification shall remain unaffected during the term of this Agreement. - Audits
The Licensor is permitted to verify the contractual use of the Software by accessing the Software at any time. Furthermore, the Licensor is permitted to check the scope of use at the Licensee's premises. The Licensee shall grant the Licensor access to all facilities to any hardware and software the verification of which is relevant to compliance with the scope of the license. The inspection at the premises of the Licensee shall be announced in text form in due time, unless there is an strong suspicion that the scope of the license has been exceeded. - Confidentiality, References
21.1. Each party shall keep confidential all Confidential Information brought to its attention by the other party, shall not use it for any purpose other than the performance of the Agreement and shall not disclose or make it available to any third party. "Confidential Information" means any information disclosed by one party ("Disclosing Party") to the other party ("Receiving Party") in the course of the pre-contractual and, if applicable, contractual cooperation or of which the Receiving Party has otherwise become aware, provided that (i) it has a commercial value, (ii) there is a legitimate interest in keeping it confidential and (iii) it is either marked as confidential or the confidential nature results from the nature of the information or the circumstances of the disclosure.
21.2. The Parties shall be entitled to disclose Confidential Information to employees and affiliates to the extent that they are subject to confidentiality obligations substantially equivalent to the obligations governed by this Agreement. For the Licensor, this also applies to the disclosure to subcontractors.
21.3. Confidential information pursuant to section 21.1 includes information of which the Receiving Party proves that
21.3.1. they are generally known or readily available to persons in the circles that usually handle this type of information,
21.3.2. it becomes generally known or readily available to persons in the circles that normally handle this type of information after disclosure by the Disclosing Party, without this being caused by an act or nonfeasance of the Receiving Party;
21.3.3. the Disclosing Party has waived its protection in writing;
21.3.4. it has obtained the information by means other than cooperation with the Disclosing Party without being subject to a duty of confidentiality;
21.3.5. it developed it independently of the Disclosing Party's Confidential Information;
21.3.6. it has obtained the information by observing, examining, deconstructing or testing a product or article that has been made publicly available, provided that an applicable copyright protection remains unaffected.
21.4. In the event of a disclosure pursuant to an administrative or judicial order or a legal obligation the other party shall be informed prior to disclosure to the extent and as soon as permissible. The parties shall assist each other in preventing disclosure to the extent legally possible.
21.5. The Licensor is entitled to name the Licensee as a reference customer. This includes, among other things, the naming of the Licensee without any further consent requirement as well as the publication of a success story, the content of which is to be coordinated with the Licensee.
21.6. Further obligations under data protection law remain unaffected.
21.7. These confidentiality obligations shall apply for the term of this Agreement and for a further three years. Legal or contractual obligations to delete or return data earlier or to keep information confidential for a longer term remain unaffected. - Data Protection
22.1. The parties undertake to comply with applicable provisions of data protection law.
22.2. The parties are aware that the storage of personal data of the Licensee on the hardware of the Licensor constitutes commissioned processing pursuant to Art. 28 DSGVO. The parties have therefore concluded the data protection agreement attached as Annex. - Export Regulations
Licensee agrees to comply with all applicable export regulations, embargoes and sanctions, including but not limited to those of the United States of America and the United Kingdom ("Export Laws"), and will not offer or provide services through the Software in any country subject to applicable economic sanctions or other trade controls unless Licensor has obtained an exemption. Licensee warrants that it will not (i) use the Software in violation of any export laws, (ii) use the Software for any purpose prohibited by export laws, or (iii) provide services to any person/entity not entitled to use the Software. The Licensor shall have the right, but not the obligation, to make any necessary verifications of export laws and the Licensee shall promptly provide the Licensor with all necessary information upon request. The Licensee agrees to indemnify the Licensor against all claims, actions, damages, fines and costs relating in any way to the Licensee's non-compliance with export laws. - Final Provisions
24.1. The Licensee is not entitled to assign the Agreement or any rights under it to any third party without the written consent of the Licensor. The Licensee is prohibited from assigning or pledging claims arising from this agreement to third parties, unless the Licensee has a legitimate interest in doing so.
24.2. The Licensee may only offset claims of the Licensor against undisputed or legally established counterclaims. The same applies to the assertion of a right of retention by the Licensee.
24.3. Amendments to the agreement must be made in writing. This also applies to the amendment of this written form requirement.
24.4. General terms and conditions of the Licensee shall not become part of the contract, even if they have not been expressly rejected.
24.5. Should any provision of the agreement be or become invalid, this shall not affect the validity of the remainder of the agreement. The ineffective provision shall be replaced by a provision that comes as close as possible to the ineffective economic provision. This shall also apply in the event of a loophole in the contract.
24.6. German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
24.7. If the Licensee is a merchant within the meaning of the German Commercial Code or a special fund under public law, the exclusive place of jurisdiction shall be Ulm.