General Terms and Conditions (GTC)
Scope of Application
These General Terms and Conditions (GTC) govern the rights and obligations between PLUS4DATA GmbH (hereinafter referred to as “Provider”) and the Licensee (hereinafter referred to as “Customer”) in connection with the sale of a software license.
Deviating or supplementary terms and conditions of the Customer shall not become part of the contract, unless the Provider expressly agrees to their validity in writing.
Subject matter of the contract
The subject of the contract is the permanent transfer of the separately designated computer program in object code including the associated user documentation (“Contract Software”) and the granting of the described rights of use.
The quality and functionality of the Contract Software are conclusively defined in the respective product description. The information contained therein is to be understood as performance descriptions and not as warranties. A warranty shall only be granted if it has been expressly designated as such.
The Provider shall provide the Customer with a copy of the Software and deliver it to the Customer via download. The Provider shall provide the Customer with the necessary access data and, if applicable, the license key for the contractual use of the Software upon conclusion of the contract.
Further services, in particular installation, configuration and training and instruction services as well as support, if applicable, shall be agreed separately and explicitly.
Granting of rights of use
The software license entitles the customer to use the software in accordance with the license terms provided to the customer at the time of sale.
Upon full payment of the purchase price, the Provider grants the Customer the non-exclusive and perpetual right to use the Software to the extent regulated in the product specification. The right applies to single use on a server / cluster or as a cloud solution.
The customer may install the software within the scope of para. 1 and use it as intended. The Customer shall also be entitled to make a backup copy required to ensure future use; it shall mark this as such. Finally, the customer shall be entitled to reproduce and decompile the software exclusively under the conditions of § 69e UrhG (German Copyright Act).
The customer is not entitled to rent, sublicense, reproduce by wire or wireless means, make the software publicly available or make it available to third parties in any other way. Not third parties in this sense are employees in the business operations of the customer and persons employed by the customer to ensure the intended use.
The customer shall not be entitled to permanently transfer the acquired copy of the software including the documentation to a third party in compliance with the scope of the granting of rights hereunder.
If the Customer exceeds the rights of use granted under this Agreement without the Provider’s prior consent, the Provider may demand the amount attributable to the exceeding use in accordance with its price list. Non-contractual claims for damages remain unaffected.
The customer receives a non-exclusive, non-transferable license to use the software for internal business purposes.
The software may only be installed and used at the location specified by the customer.
Customer may not decompile, reverse engineer, or otherwise attempt to discover the source code of the Software unless expressly permitted by law and agreed to with Provider.
The customer may not modify, copy, rent, lease, sell, pass on or otherwise make the software available to third parties, unless this is expressly agreed in writing between the parties.
Prices and terms of payment
The prices communicated or published by the provider at the time of the order or, if applicable, the prices agreed individually between the contracting parties shall apply.
The provider accepts all common methods of payment. As a rule, the provider will issue an invoice to the customer for the ordered service, which will be sent to the customer in text form.
The customer is authorized to exercise a right of retention only insofar as his counterclaim is based on the same contractual relationship.
The supplier is entitled to adjust the respective prices after conclusion of the contract to changing essential market conditions, in case of significant changes in procurement costs and/or changes in value added tax.
All prices are subject to the statutory value added tax at the current rate.
Warranty and Limitation of Liability
The Provider warrants that the Software and the user documentation have the agreed quality and that the use by the Customer to the contractually agreed extent in the country of purchase of the Software is not opposed by any third party rights. The Provider shall not be liable for deviations from the agreed quality and conflicting rights based on use contrary to the contract or unauthorized modifications by the Provider or third parties.
The supplier has the right to choose whether to remedy a defect by way of repair or subsequent delivery. This applies accordingly to defects of title. It shall also be deemed to be a remedy if the Provider provides the Customer with temporary solutions, provided that these remedy the defect. The same shall apply if the defect can be circumvented by a different use of the software, provided that the customer can continue to reasonably use the software. The customer shall be obligated to adopt a new software version if the contractual scope of functions is maintained and the adoption does not lead to significant disadvantages for the customer. The rectification of defects includes, if necessary, the adaptation of the user documentation.
After two unsuccessful attempts at subsequent performance, the customer may withdraw from this contract or demand a reduction in the purchase price and damages in accordance with the statutory provisions. The prerequisite for this is that the Customer has unsuccessfully requested the Provider in writing to remedy the defect within a reasonable period of time after the second failed attempt at subsequent performance and has pointed out that he will otherwise exercise his statutory warranty rights.
The limitation period for warranty claims is 12 months. This shall also apply to claims for damages with the exception of claims due to intentional or grossly negligent conduct, claims due to damage to life, body and health as well as under the Product Liability Act. If the Provider delivers the software to the Customer via download, the limitation period shall begin with the provision of the download link including the access data by the Provider.
The liability of the provider for slightly negligent breaches of obligations that are essential for achieving the purpose of the contract is limited in amount to the damage that is foreseeable and typical for the type of business.
Liability claims of the customer are subject to the statute of limitations according to § 6 para. 4. The beginning of the period results from § 199 para. 1 BGB (German Civil Code) in deviation from this.
The provider reserves all rights to the software, including all copyrights, patent rights and other intellectual property rights.
The customer does not acquire any intellectual property rights with the purchase of the software license, except for the rights of use expressly granted in this contract.
“Confidential Information” means all information and documents of the other party that are marked as confidential or are to be considered confidential under the circumstances, in particular information about operational processes, business relationships and know-how.
The parties agree to maintain secrecy about confidential information.
Excluded from this obligation is such confidential information that
a) was demonstrably already known to the recipient at the time of conclusion of the contract or becomes known thereafter from a third party without violating a confidentiality agreement, statutory provisions or official orders;
b) are public knowledge at the time of conclusion of the contract or are made public thereafter, insofar as this is not based on a breach of this contract;
c) must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the Recipient obligated to disclose shall notify the other Party in advance and give the other Party the opportunity to oppose such disclosure.
The parties will provide access to confidential information only to those persons who are subject to professional secrecy or who have previously been subject to obligations equivalent to the confidentiality obligations of this Agreement. Furthermore, the parties shall only disclose the confidential information to those employees who need to know it for the performance of this Agreement and shall also oblige these employees to maintain confidentiality to the extent permitted by employment law for the period after their departure.
Any culpable breach of these provisions shall entitle the Supplier to claim an appropriate contractual penalty. Further claims of the breached party shall remain unaffected.
The customer may only assign claims against the provider arising from this contract with the written consent of the provider.
Offsetting by the customer is only permitted with undisputed or legally established claims.
If the Software is subject to export and/or import control restrictions, the Customer shall comply with such restrictions.
The legal relationship between the parties shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods and international contract law.
Place of performance is D-76764 Rheinzabern. The exclusive place of jurisdiction is D-76764 Rheinzabern.
If the text of the contract is delivered in a translation, the German version shall prevail.
Should any provision of these GTC be or become void or voidable or for any other reason, the remaining provisions shall remain in full force and effect. In such a case, instead of the void, voidable or ineffective provision, such a provision shall be deemed to have been agreed upon that comes as close as possible to its intended purpose and guarantees a corresponding economic success. § Section 139 of the German Civil Code (BGB) shall not apply to the order.