General Terms and Conditions of machineering
These General Terms and Conditions (hereinafter referred to as “GTC”) are an integral part of the contract for various services (hereinafter referred to as “Contract”) which is concluded by machineering GmbH & Co. KG, Landsberger Str. 306, 80687 Munich, Germany (hereinafter referred to as “machineering”) with the Client (hereinafter referred to as the “Client”). machineering and the Client shall hereinafter also be referred to as the “Parties” or, in the singular, each as a “Party”.
- PROVISION OF SOFTWARE AND HARDWARE
- General Provisions
1 Scope of Services
1.2 The source code shall not be part of the Software Products.
1.3 The service description valid at the time of the conclusion of the Contract and available to the Client at that time shall be ssolely relevant for the quality of the Software and Hardware Products. machineering shall not have any liability for further qualities of the products (in particular from other presentations of the Software and Hardware Products in public statements or in advertising), unless machineering has expressly confirmed such further qualities.
2 Rights of Use to the Software Products and the Operating System Software
2.1 machineering grants the client a non-exclusive and non-transferable right to use the software, but only for the territory in which the Software Products may be used as designated in the Contract. The right of use shall be limited to the installation and operation of the Software Products on such number of workstations at the same time as specified in the respective Contract.
2.2 To the extent that under the Contract the software Products are provided on a purchase basis, the right of use shall be granted for an unlimited period of time and irrevocably.
2.3 To the extent that under the Contract the Software Products are provided on a temporary basis (software rental), the right of use shall be limited in time in accordance with the term specified in the Contract.
2.4 The Client may use the Software Products only for its own internal business transactions and for the internal business transactions of its affiliated companies (group companies) pursuant to Section 15 of the German Stock Corporation Act (AktG). In particular, (i) a data center operation for third Parties, (ii) the temporary provision of the Software Products (e.g. as an application service thing) for third Parties or (iii) any use of the Software Products for private purposes shall not be permitted.
2.5 Dependent use by the Client’s employees or other third parties which are subject to the Client’s right of disposal shall be permitted if such use is within the scope of the intended use.
2.6 Duplications of the Software Products shall only be permitted to the extent necessary for the contractual use. The Client may make backup copies of the software products to the extent necessary in accordance with the rules of technology. Backup copies on movable data carriers shall be marked as such and shall bear the copyright notice of the original data carrier or the original version.
2.7 The Client is only authorized to make changes, extensions and other modifications to the Software Products in the sense of § 69c No. 2 UrhG (German Copyright Act) to the extent that this is permitted by law.
2.8 The client is entitled to decompile the Software Products only within the limits of § 69e UrhG (German Copyright Act), but only if machineering has not provided the necessary data and/or information to establish interoperability with other hardware and software after the Client’s written request which sets a reasonable time limit.
2.9 Insofar as machineering provides the Client with Hardware Products on a temporary basis (rental), the Client may only use the Hardware Products in combination with the Software Products intended for this purpose and the installed operating system software.
3 Installation, Training, Maintenance
3.1 The Software Products shall be delivered online via download. In order to use the Software Products, the Client needs a virtual dongle or another digital licensing technology.
3.2 For the installation of the Software Products, machineering refers to the installation instructions described in the application documentation, in particular to the hardware and software environment described therein, which must be available at the Client’s premises. At the Client’s request, machineering will undertake the installation, configuration and parameterization of the software on the basis of an agreement to be concluded separately and the applicable price lists.
3.3 At the Client’s request, machineering shall provide instruction and training with respect to the Software Products on the basis of an agreement to be concluded separately.
4 Replacement of Individual Software Modules
4.1 The Software Products consist of one or more modules, depending on the package selection of the Client. After the expiration of one year after the delivery of a respective module, the client shall be entitled to request machineering to exchange the module for another module of the same price category. The Client has to request the exchange with a notice period of one month in advance in writing or in text form to machineering. It is at machineering’s discretion to accept or refuse such an exchange request.
4.2 In case of such an exchange, the client is obliged to return the module to be exchanged on the original data carrier including the application documentation or – if there is no such data carrier – to delete it irretrievably. Copies of the Software Products, if any, shall be deleted completely and permanently. Upon return or deletion of the module, all rights of the Client to it shall expire.
4.3 The contractual provisions (including the remuneration regime) shall continue to apply accordingly and unchanged to the new module.
5 Protection of the Software Products and the Application Documentation
5.1 Unless the Client is expressly granted rights under the Contract and these GTC, all copyright and other rights to the Software Products (and all copies made by the client) are the exclusive property of machineering. This also applies to any modifications of the Software Products by machineering.
5.2 The Client shall store the provided Software Products, including the virtual dongle or any other digital licensing technology as well as the application documentation, in a secure location and protect them from unauthorized access by third Parties. The Client shall not make the aforementioned items (whether unmodified or modified) accessible to third parties without machineering’s prior written consent. Third Parties shall not be deemed to be the Client’s employees or other persons whom the Client makes use of in the context of its contractual use of the Software Products. The Client shall, however, point out to these persons that the making of copies beyond the contractual scope is not permitted.
5.3 The client shall not be permitted to alter or remove any copyright notices, marks and/or control numbers or other control signs of machineering.
6 Cooperation and Information Obligations of the Client
6.1 The Client has informed himself about the essential functional features of the Software Products and shall bear the risk that these meet his expectations. Prior to the conclusion of the Contract, the Client has obtained advice on cases of doubt from machineering employees or from competent third Parties.
6.2 The installation of a functional and sufficiently dimensioned hardware and software environment for the Software Products is the sole responsibility of the Client. Excluded from this are such associated Hardware Products that machineering sells or rents to the Client under the Contract.
6.3 Prior to their use, the Client shall thoroughly test the Software Products and the Hardware Products for freedom from defects and for usability in the existing hardware and software configuration. This shall also apply to software and hardware received under warranty and maintenance.
6.4 The Client is obligated to immediately report any defects of the Software Products and the Hardware Products to machineering in text form (e-mail is sufficient). In this context, the Client shall take into account machineering’s instructions for problem analysis within the scope of what is reasonable and shall forward to machineering all information available to it that is necessary for the elimination of the defect.
6.5 The Client shall grant machineering access to the Software and Hardware Products for troubleshooting purposes directly and/or by means of remote data transmission, at the Client’s discretion.
6.6 If machineering proves, with regard to faults or malfunctions asserted by the Client, that no defect of quality or defect of title for which machineering is liable existed, it may demand the reasonably necessary and appropriate remuneration for this in accordance with its general remuneration rates, insofar as the expenditure was caused by the Client. The Client has the right to raise the objection of contributory fault (Mitverschulden) on the part of machineering (§ 254 BGB).
6.7 The Client shall take reasonable precautions for the case the Software Products or Hardware Products do not work properly in whole or in part (in particular by daily data backup, fault diagnosis, regular checking of data processing results).
7 Delivery and Performance Time
7.1 Unless otherwise agreed, the Software Products are delivered in the version current at the time of delivery.
7.2 machineering shall effect the delivery of the Software Products by making the Software Products, including the application documentation, available to the Client for download in a network and by notifying the Client thereof and by providing the Client with the virtual dongle or another digital licensing technology.
8 Machineering’s Right of Information and Audit
machineering is entitled to check whether the Software Products are used in accordance with the provisions of this Contract. For this purpose, it may request information from the Client, in particular regarding the period and scope of use of the Software Products, and inspect the Client’s books and records as well as its hardware and software. machineering shall be granted access to the Client’s business premises during normal business hours for this purpose. The Client is entitled to take reasonable measures to protect its business secrets, in particular (i) to demand a prior written obligation to maintain secrecy on the part of the persons involved in the inspection and/or (ii) to restrict access to such secrets to third Parties bound to secrecy if the Parties are competitors.
- Special Provisions for the Purchase of Software Products and/or Hardware Products
To the extent the Client acquires the Software Products and/or Hardware Products for an indefinite period of time under a purchase agreement, the following additional provisions shall apply:
9 Duty to Examine and to Give Notice of Defects
The Client assumes the obligation to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code) with regard to all Software and Hardware Products and application documentation delivered under this Contract.
10 Extended Retention of Title for Hardware Products (verlängerter Eigentumsvorbehalt)
The Client shall acquire ownership of the Hardware Products only upon full payment of the remuneration invoiced for them.
11 Defects of Quality and Title
11.1 Both Parties acknowledge that, according to the current state of the art, it is not possible to develop software in such a way that it is completely error-free. Therefore, no warranty is given for common software errors that do not or only insignificantly affect the usability of the Software Products.
11.2 machineering will remedy defects of quality and defects of title which existed at the time of the transfer of risk and which the Client claims before the expiry of the limitation period. This shall be effected, at machineering’s discretion, either by replacement delivery (Nachlieferung) or by subsequent improvement (Nachbesserung). The Client shall support machineering by providing the necessary information and documents as well as by other reasonable means.
11.3 The Client shall only be entitled to withdraw from the Contract or to reduce the remuneration after the unsuccessful expiry of a reasonable deadline set by it for subsequent performance (Nacherfüllung) of at least three weeks, unless the setting of a deadline is dispensable according to the statutory provisions.
11.4 Claims pursuant to this clause 11 are not given if the Client modifies the sold Software Products, the adaptations thereof or the Hardware Products without the consent of machineering, or has them modified by third parties, unless the Client proves that the defects of quality or defects of title in question were not caused by the modifications made by him or the third parties and were already present at the time of handover.
11.5 All claims of the Client against machineering pursuant to this clause 11 shall become statute-barred within one year of delivery. Claims for damages and reimbursement of expenses on the part of the Client shall become time-barred in accordance with the statutory provisions.
11.6 In case of intent or gross negligence by machjneering, in case of fraudulent concealment of a defect, in case of personal injury, in case of defects of title in the sense of § 438 para. 1 no. 1 a) BGB (German Civil Code), in case of assumption of a guarantee for the quality of the Software or Hardware Products or the adaptations (§§ 444 and 639 BGB), in case of claims according to the Product Liability Act as well as claims according to the provisions of the General Data Protection Regulation (GDPR) the statutory limitation periods shall apply.
III. Special Provisions for the Lease of Software and/or Hardware Products
To the extent that the Client receives the Software Products and/or Hardware Products for a limited period of time under a rental agreement, the following provisions shall apply in addition:
12 No Transfer to Third Parties
Notwithstanding the exceptions regulated in this GTC, the Client is not entitled to transfer the Software or Hardware Products to third parties, in particular to sell or rent them, without machineering’s permission.
13 Price Adjustment
For the first time after the expiration of twelve months, machineering shall be entitled to increase the regular remuneration with a prior written notice of three months to the end of the month. The twelve-month period for the first increase shall commence for Software Products upon their delivery and activation and, for Hardware Products, upon their delivery. Further such increases may be made no earlier than twelve months after the previous increase has taken effect. The increase must be made at reasonable discretion, i.e. in particular be appropriate and in line with market conditions. It may not exceed 3% of the regular remuneration applicable at the time of the announcement. The Client has the right to terminate the affected individual contract within a period of six weeks after receipt of the announcement of the rent increase.
14 Defects of Quality and Title
14.1 machineering shall be obligated to remedy defects in the provided Software Products, including the application documentation, as well as in the Hardware Products provided. This shall be effected, at machineering’s discretion, either by replacement delivery or by rectification.
14.2 Termination by the Client pursuant to § 543 para. 2 sentence 1 no. 1 of the German Civil Code (BGB) due to non-provision of contractual use is only permissible after machineering has been given sufficient opportunity to remedy the defect and such remedy has failed. The remedy of defects shall only be deemed to have failed if it is impossible, if machineering refuses to remedy the defect or unreasonably delays remedying, if there are reasonable doubts as to the prospects of success or if it is otherwise unreasonable for the Client.
14.3 The rights of the Client due to defects are excluded if the Client makes or has made changes to the rented Software Products or Hardware Products without the consent of machineering, unless the Client proves that the defects were not caused by the changes made by the Client or the third Parties and that the changes do not have any effects on the analysis and correction of the defects that are reasonable for machineering. The rights of the Client due to defects remain unaffected, provided that the Client is entitled to make changes, especially within the scope of exercising the right of self-remedy according to § 536a para. 2 BGB (German Civil Code), and that these changes have been carried out professionally and have been documented in a comprehensible manner.
15 Return at the End of the Contract
15.1 Upon termination of the respective rental period, the Client shall return the Software Products as well as the application documentation to machineering. If the Software Products and/or the application documentation have been provided in combination with Hardware Products, the products shall be returned as a unit. If a physical return of Software Products is impossible due to their nature, the Client shall irretrievably delete the Software Products as well as the application documentation. Any copies of the Software Products that may have been made shall also be irretrievably deleted. Furthermore, the Client is obliged to deactivate the virtual dongle or any other digital licensing technology by means of the deactivation mechanisms provided by machineering.
15.2 Hardware Products provided on a rental basis are to be returned to machineering upon termination of the Contract within 15 days after the end of the Contract. If and to the extent that the Hardware Products are damaged upon return, the Client shall reimburse the costs of restoration, unless the Client is not responsible for the damage.
15.3 If the Client does not return the Hardware Products to machineering within the period of 15 days or if the Hardware Products are damaged upon return, machineering may demand from the Client the agreed rent (calculated on a pro-rata basis) as a contractual penalty for each day the deadline is exceeded. The contractual penalty shall be offset against machineering’s claims for damages.
15.4 Any use of the Software Products and Hardware Products after termination of the Contract is prohibited.
- PERFORMANCE OF SERVICES
16 Scope of Services
16.1 The scope and objective of the services to be performed by machineering are exclusively determined by the service description agreed upon between machineering and the Client in the Contract. The services may be services (Dienstleistungen) or work performances (Werkleistungen). Verbal agreements shall only become part of the scope of the services if they have been confirmed in writing by machineering.
16.2 In the case of work performances (Werkleistungen), the Client is obliged to provide machineering with a sufficiently detailed service description, clearly stating the nature, scope and objectives of the work performances (Werkleistungen) to be performed by machineering. If requested by the Client, machineering will support the Client with the preparation of the service description to a reasonable extent. The service description shall be the basis for the acceptance test.
16.3 If, in the course of the performance of the services, one Party determines that a change in the originally defined scope of services is necessary or expedient, it shall immediately notify the other Party thereof, stating the reasons. In such a case, the Parties shall consult with each other on the implementation of the proposed service change as well as on the possible effects on the service time and service remuneration. machineering shall not be obliged to implement a service change until it has given its written consent thereto.
17 Rights of Use
Insofar as machineering makes individual adaptations to Software Products for the Client, develops Software Products individually for the Client or provides other protectable work results, the provisions on the granting of rights of use according to clause 2 shall apply accordingly.
18 Cooperation Obligations of the Client
18.1 The Client shall provide machineering with all necessary information and data from its sphere that machineering requires for the provision of the services.
18.2 The Client shall unsolicited inform machineering about industry-typical or company-specific requirements and processes, insofar as these are relevant for machineering to provide the services.
18.3 Insofar as the provision of software or hardware by the Client is required for the provision of the services, the procurement and maintenance of the same shall be the sole responsibility of the Client.
18.4 If the Client fails to meet its obligations to cooperate or fails to provide agreed materials, the deadlines to be met by machineering in this context shall be postponed accordingly.
19.1 Work performances (Werkleistungen) performed by machineering shall be inspected by the Client immediately after completion to ensure that they comply with the Contract. If the Client discovers deviations from the service description during an inspection, he shall notify machineering of this in writing without undue delay. The notification must contain a sufficiently concrete description of the detected deviation to enable machineering to identify and eliminate the deviation.
19.2 Material deviations shall be eliminated by machineering as soon as possible and subsequently submitted to the Client for acceptance; the renewed acceptance test shall be limited to the determination of the elimination of the deviation. Non-material deviations shall be recorded by the Client in writing in the acceptance declaration as defects and shall be remedied by machineering within the scope of the warranty.
19.3 If the Client refuses acceptance, machineering may set a deadline of 14 days in writing for the Client to declare acceptance. Acceptance shall be deemed to have taken place insofar as the Client does not specify in writing within this period the material defects he has identified. Furthermore, acceptance shall always be deemed to have taken place if the Client uses the work performances for its business. In this case, machineering shall only remedy defects within the scope of the statutory warranty provisions.
20 Defects of Quality and Title
To the extent that the services rendered by machineering are work performances (Werkleistungen), the following provisions shall apply with regard to defects of quality and defects of title:
20.1 No warranty is given for deviations which do not or only insignificantly impair the usability of the work performance.
20.2 machineering shall remedy defects of quality and defects of title existing at the time of acceptance and which the Client asserts before the expiry of the limitation period. This shall be done, at machineering’s discretion, either by replacement delivery (Nachlieferung) or by subsequent improvement (Nachbesserung). The Client shall support machineering by providing the necessary information and documents and also in other reasonable ways.
20.3 The Client shall only be entitled to withdraw from the contract or to reduce the remuneration after the unsuccessful expiry of a reasonable deadline set by him for subsequent performance (Nacherfüllung) of at least three weeks, unless the setting of a deadline is dispensable according to the statutory provisions.
20.4 Claims pursuant to clause 20 are excluded to the extent that the Client modifies the sold Software Products, the adaptations thereof or the Hardware Products without the consent of machineering or has them modified by third Parties, unless the Client proves that the material defects or defects of title in question were not caused by the modifications made by him or the third Parties and were already present at the time of handover.
20.5 All claims of the Client against machineering pursuant to clause 20 shall become time-barred within one year after acceptance. Claims for damages and reimbursement of expenses on the part of the Client shall become time-barred in accordance with the statutory provisions.
20.6 In case of intent or gross negligence by machjneering, in case of fraudulent concealment of a defect, in case of personal injury, in case of defects of title in the sense of § 633 para. 3 BGB (German Civil Code), in case of assumption of a guarantee for the quality of Software or Hardware Products or adaptations (§ 639 BGB), in case of claims according to the Product Liability Act as well as claims according to the provisions of the Data Protection Regulation (DSGVO), the statutory limitation periods shall apply.
- GENERAL PROVISIONS
21 Remuneration and Payment Modalities
21.1 The remuneration to be paid for the performances is regulated in the Contract.
21.2 If Software Products and/or Hardware Products are provided on a rental basis, the rental payments specified in the Contract shall be paid in advance for periods of no more than twelve months in each case.
21.3 In the event that the Client uses the Software Products without the consent of machineering to an extent that exceeds the rights of use granted in the contract (in particular in the case of simultaneous use by a larger number of users than agreed), machineering is entitled to invoice the amount due for the additional use in accordance with the price list of machineering valid at that time, unless the Client proves that machineering has suffered significantly lower damages. Further non-contractual claims for damages remain unaffected.
21.4 All prices are exclusive of the respective applicable statutory value-added tax.
21.5 The Client shall only be entitled to set-off or to assert rights of retention if the counterclaim has become legally established (rechtskräftig festgestellt) or is undisputed between the Parties.
22 Withholding Tax
22.1 The remuneration may be subject to tax deduction (withholding tax) in accordance with the tax laws of the Client’s home country. In this case, the Client undertakes not to deduct any withholding tax to the extent machineering submits a valid exemption from such tax deduction.
22.2 If machineering has yet to apply for such an exemption from tax deduction, the Client undertakes to support machineering to the best of its ability and to a reasonable extent in applying for the exemption.
22.3 Insofar as a tax deduction had to be effected by the Client due to the lack of an exemption, the Client shall support machineering to the best of its ability and to a reasonable extent in recovering the amounts paid to the competent tax authority.
23 Third-Party Property Rights
23.1 If, due to the Client’s contractual use of Software Products, claims are asserted against the Client on the grounds of an infringement of industrial property rights or copyrights, the Client shall notify machineering of this in writing without undue delay after becoming aware of it. Furthermore, machineering has the right to be informed in advance about all intended defense measures and all settlement negotiations.
23.2 machineering has the right to exercise sole control over all defense measures and settlement negotiations if it indemnifies the Client in return from the asserted claims and the reasonable costs of legal defense. In this case, the Client shall be obliged to assist machineering in a reasonable manner in the defense against the claim or in settling it by way of compromise.
23.3 If claims are asserted against the Client by third parties due to an infringement of industrial property rights or copyrights, or if such claims are to be expected in machineering’s estimation, machineering shall be entitled – irrespective of the assertion of claims by the Client – to modify or replace the Software Products, the adaptations, the application documentation or other materials in such a way that there is no risk of an infringement of third party property rights, provided that the functionality of the Software Products and adaptations is not thereby restricted in a manner detrimental to the Client. In this case, the Client is obliged to install any updates provided by machineering and to stop using the old version.
As far as claims for damages or reimbursement of expenses are concerned, machineering shall be liable for all resulting damages, irrespective of the legal basis, in particular due to breach of contract (§§ 241 para. 2 in conjunction with 311 para. 2 BGB), defects of quality, defects of title or tort (unerlaubte Handlung), only in accordance with the following provisions:
24.1 In the event of intent, claims under the German Product Liability Act (Produkthaftungsgesetz), claims under the German Data Protection Regulation (DSGVO), fraudulent concealment of a defect or the assumption of a guarantee for the quality of the Software Products (§ 444 BGB), as well as in the event of injury to life, body or health, machineering shall be liable exclusively in accordance with the statutory provisions.
24.2 In all other cases the following regulations apply:
(a) In the event of gross negligence, machineering’s liability shall be limited to the compensation of the typical foreseeable damage.
(b) In the case of ordinary negligence, machineering shall only be liable if a material contractual obligation has been breached. In this case, liability is limited to the typical foreseeable damage. In all other cases of ordinary negligence, liability is excluded.
24.3 In the event of a loss of data caused by simple negligence, machineering shall only be liable for the damage that would have occurred even if the Client had properly and regularly backed up the data in a manner commensurate with the importance of the data; this limitation shall not apply if the backing up of the data was impeded or impossible for reasons for which machineering is responsible.
24.4 Insofar as Software Products and/or Hardware Products are provided to the Client for a limited period of time (rental), machineering’s strict liability for defects already existing at the time of the conclusion of the Contract pursuant to § 536a para. 1 Alt. 1 BGB is excluded.
25.1 Neither of the Parties may disclose Business Secrets and Confidential Information relating to the other Party to third parties. Furthermore, such Business Secrets and Confidential Information may only be used for the purposes of this GTC or the respective Contract.
“Business Secret” means any information relating to a Party which is defined as a “business secret” pursuant to Section 2 No. 1 of the German Act on the Protection of Business Secrets (GeschGehG).
“Confidential Information” means any information which is not a Business Secret and which is made available by a disclosing Party under or in connection with the GTC or the Contract (i) which has been marked by the Disclosing Party as “Confidential Information” or similar or (ii) which is to be considered confidential due to its nature or the circumstances of its disclosure. The following information shall not be considered Confidential Information: Information that (i) was independently developed by the receiving Party without the application or use of the Confidential Information, (ii) was disclosed to the receiving Party by a third party without breach of a confidentiality obligation, (iii) is or becomes generally available to the public through no fault or breach of the receiving Party, or (iv) with respect to which the receiving Party can demonstrate that it was lawfully in its possession prior to disclosure without the receiving Party being bound by any confidentiality obligations with respect thereto.
25.2 Each receiving Party shall be free to disclose business secrets and confidential information without the consent of the disclosing Party to the extent required by law, court order or administrative order; in such cases, the receiving Party shall promptly notify the disclosing Party in writing of such obligation to the extent permitted by law,
25.3 Mandatory statutory provisions permitting the use and/or disclosure of Business Secrets shall remain unaffected.
26.1 In case of contradictions between these GTC and the Contract, the provisions of the Contract shall prevail.
26.2 The exclusive venue for all disputes arising from or in connection with the Contract and/or these GTC shall be machineering’s place of business if the Client is a merchant pursuant to Section 38 of the German Code of Civil Procedure (ZPO). If machineering files a lawsuit, it shall in addition be entitled to choose the venue at the Client’s place of business. The right of both Parties to seek preliminary legal protection before the courts having jurisdiction according to the statutory provisions shall remain unaffected.
26.3 Only German law shall apply with the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).
26.4 Subsequent modifications and supplements to the Contract or to these GTC shall only be valid if made in writing (digital signature is sufficient). This shall also apply to any amendment of this clause. No verbal collateral agreements have been made.
26.5 Should any provision of the Contract or the GTC be invalid or unenforceable, the validity and enforceability of the remaining provisions shall not be affected thereby. The invalid or unenforceable provision shall be replaced by a legally valid provision that comes as close as possible to the meaning and purpose of the invalid or unenforceable provision.