Terms and conditions

General terms and conditions of ProDigital Consulting GmbH

ProDigital Consulting GmbH, Lise-Meitner-Straße 3/1, 89081 Ulm (‘Licensor’) offers software that it makes available to the ‘Licensee’ for use and that enables the Licensee to provide its customers (‘Customers’) with a customised configurator for various types of products (“Configurator”) (‘Software’). The Licensee has either registered online for use and booked certain services or agreed on 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’ apply (together with the Order, ‘Agreement’):

1. Subject matter of the agreement
   
   1.1. The subject matter of the agreement is the services agreed upon in the order, namely either the temporary provision of the software (‘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 ready-made configurator for the licensee, who can offer it to their customers.

   1.2. The subject matter of the agreement may also include maintenance and support services and/or individual development services.

   1.3. The functional scope of the software is specified in the order. The licensee may add 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 in accordance with Section 14.  

   1.4. If 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 phase’). In the case of online booking, the provisions under 3.1 apply in this respect; otherwise, the provisions under 4 apply to use during the test phase.

   1.5. The licensor is not obliged to provide error-free configuration data. It merely provides a tool that facilitates the planning of a product and enables the ordering of necessary materials. The Licensor points out that this does not replace a careful review of the data and planning prior to execution, especially in the case of construction projects. The Licensee and its customers are responsible for this themselves. The Licensee must inform its customers of this.
    

    

2. Principles of cooperation

   2.1. The parties shall cooperate in good faith and endeavour to find a constructive solution to any differences of opinion. If a solution cannot be found, the parties shall first attempt to find a solution at management level or at another senior level within their companies. This shall not affect the parties' right to initiate legal proceedings.

   2.2. The licensee shall provide the licensor with the information, data, content and documents necessary for the provision of the services and shall also take all other necessary cooperative actions. The licensee shall bear all expenses associated with the provision of cooperative 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 its use. This also applies to any hardware and software purchased on the advice of the Licensor in the course of the provision of services. In the case of an on-premises solution, the licensee is also responsible for operating the software, unless it has been agreed that the licensor will host it on its servers (‘hosted solution’). Any maintenance obligations of the contractor under 12. remain unaffected.

   2.4. If the licensee makes use of individual services provided by the licensor and the parties have not agreed on a different remuneration, these services shall be provided at an hourly rate of EUR 140.00. Each 15 minutes or part thereof shall be invoiced.

   2.5. If the licensee fails to fulfil or improperly fulfils the required obligations to cooperate, the licensor's obligation to provide services shall lapse to the extent and for the period in which the provision of services depends on the prior fulfilment of the licensee's obligations to cooperate. The Licensor shall be entitled to demand compensation for any additional expenses incurred as a result of a lack of or delayed cooperation at the hourly rate specified in 2.4.

   2.6. The Licensor shall be 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 permits third parties to use the software, it shall be liable for their actions as if they were its own, regardless of whether the permission to use the software was permissible. It shall ensure that the third parties are aware of the provisions of this agreement and that they comply with them.
    

    

3. Registration, conclusion of contract and delivery

   3.1. The licensee can register for the cloud solution themselves. Registration is free of charge and leads to the conclusion of a usage agreement for the free trial period, during which the licensee can use the software in accordance with the provisions under 4.

   3.2. Offering the configurator to customers (‘productive use’) requires the paid booking of the corresponding functionalities, which can be done after entering the relevant payment details in an online form (‘registration form’).

   3.3. The provision of the registration form does not constitute an offer by the licensor to conclude a contract for productive use, but rather an invitation to the licensee to submit an offer, which the licensee submits by sending the registration form. The employee of the licensee who submits the registration form warrants that they are authorised to represent the licensee effectively and to commit them accordingly. The licensor may decide at its own discretion whether to accept or reject the offer. The contract for productive use is concluded either by confirmation from the licensor in text form or by activation of the functions for productive use.

   3.4. In the case of the on-premises solution, the licensor shall provide one or more configurators for the customers in accordance with the specifications agreed in the order. Depending on the agreement, this shall be done either by installation on the licensee's servers by the licensor or on a server of the licensor and provision of a link for the customers. The licensee must provide the necessary access data.
    

    

4. Test phase

   4.1. During the test phase, the configurator may only be used by users (as defined in 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 pass on account data in order to use the configurator during the test phase. During the test phase, the licensee is also prohibited from making configurations for customers or together with customers using the software.

   4.2. If the licensee does not complete the registration for productive use within twelve weeks of registration, the licensor is entitled to delete the accounts. The deletion terminates the contract for the free trial period. The licensor will announce the deletion in advance after 10 weeks.
    

    

5. User accounts

   5.1. The licensee may create any number of user accounts for its own employees (‘users’). The accounts must be personalised for each user. The creation and/or use of accounts that are used by several people (‘collective accounts’) is not permitted.

   5.2. The licensee must take organisational measures (e.g. appropriate instructions) to ensure that (i) the data entered is accurate and (ii) users do not disclose their access data. If the licensor provides various security options for login (e.g. multi-factor authentication), the licensee is responsible for configuration and selection.

   5.3. The Licensor shall not be liable for any misuse and/or 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, after giving prior warning in writing.
    

    

6. Scope of use

   6.1. In the case of the cloud solution, the licensor allows the licensee to store their own data to the extent agreed in the order (‘datavolume’), unless otherwise agreed, up to a maximum of 5 GB.

   6.2. Unless otherwise agreed in writing, the licensee may integrate the configurator under a single domain.
   
    

7. Rights to the software

   7.1. The licensor grants the licensee a worldwide, non-exclusive, non-transferable right to use the software for their own purposes, limited to the term of the contract in the case of the cloud solution and unlimited in the case of the on-premises solution. The right of use is limited to using the cloud solution to create a custom configurator, which the licensee makes publicly available to its customers. In the case of the on-premises solution, which is hosted on the licensee's servers, the licensee is entitled to make it publicly available for use by customers. The licensee is entitled to allow users to use the software.

   7.2. The licensee must comply with the agreed scope of the licence. If a limitation on the scope of use has been agreed (e.g. use of the configurator only under one domain or a data volume) and the licensee exceeds this scope, the licensor is entitled to demand additional reasonable remuneration, which shall 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 excess. This also applies in the event that the licensee or users enable unauthorised persons to use the software by passing on their account data.

   7.3. The licensee may not use the software for purposes other than those specified in the agreement and must protect the software from unauthorised access by third parties. Without limiting the generality of the foregoing, the licensee is specifically prohibited from (i) using the software or parts thereof for purposes other than creating a configurator that it makes available to its customers, (ii) distribute, sell, resell, lease, rent, lend or otherwise transfer, sublicense or assign rights to the software or parts thereof to third parties without the prior written consent of the licensor, (iii) disclose the software or parts thereof or make it available to third parties or allow access to persons other than users in any way, in particular by passing on access data and/or using collective accounts (iv) modify, supplement, change or adapt the software, (v) reverse engineer, decompile, translate, disassemble the software or parts thereof, or break down data formats that are part of the software and/or otherwise attempt to determine the source code of the software or parts thereof (except in cases where this is permitted by mandatory legal provisions); (vi) make copies of the software or parts thereof, with the exception of copies required for the operation of the on-premises solution, if agreed, (vii) use the software to develop a competing product or service, (viii) deactivate, modify or circumvent a licence management system or security mechanism provided with the software, (ix) access or use the software to provide data processing or batch processing services for others, (x) to integrate the configurator under more than one domain, unless otherwise agreed in writing, or (xi) to remove, modify or conceal proprietary or copyright notices, trademarks or other marks of the licensor or third-party rights holders. The licensee's right to make the configurator publicly available for use by customers remains unaffected.

   7.4. The licensee's statutory rights pursuant to Section 69d (2) and (3) and Section 69e of the Copyright Act remain unaffected, provided, however, that (i) decompilation of the software pursuant to Section 69e of the Copyright Act may only be carried out after prior written request to the Licensor, in which the Licensor requests the necessary information and the Licensor does not provide the necessary information within two weeks, and (ii) the parties enter into a corresponding confidentiality agreement.  

   7.5. If the licensee expresses requests for changes to the software or makes suggestions for improvements, the licensor is entitled, but not obliged, to implement them, unless the changes are the subject of agreed development services (see the provision under 13.). Unless otherwise agreed, the Licensor shall be entitled to make the results available to other customers, both in the case of commissioned development services and in the case of changes made without legal obligation. Insofar as the results contain contributions from the Licensee, the Licensee grants the Licensor an irrevocable, non-exclusive, transferable right of use, unlimited in time and place. The right of use includes, in particular, the rights to reproduce, distribute and make publicly available, as well as other forms of public reproduction, the right to edit the results and to transfer the granted rights to third parties. Any warranty claims for defects 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 unable 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 shall remain unaffected.

   7.7. If claims are made against the licensee for infringement of third-party rights and the licensor is responsible for this, the licensor shall indemnify the licensee against these claims in accordance with the provisions of Section 17 and reimburse the licensee for the costs of legal defence in accordance with the statutory fees, provided that the licensee (i) informs the licensor immediately of the claim, (ii) does not take any action against third parties that may have an impact on the legal dispute (e.g. an acknowledgement or the conclusion of a settlement), (iii) provides the Licensor with reasonable assistance in the legal defence, and (iv) gives the Licensor the opportunity to determine and implement the legal defence strategy, in particular by selecting lawyers and drafting pleadings. To this end, the Licensee shall make the necessary declarations. The Licensor shall take the Licensee's interests into account as appropriate.
    

    

8. Hosting

   8.1. The cloud solution or the licensee-hosted solution shall be available to the licensee on average 99.5% of the time in a calendar year (‘availability time’), provided that the software is used in accordance with the contract. The following circumstances shall not be included in the availability time (‘unaccounted downtime’):
   8.1.1. announced maintenance work in accordance with 8.4;
   8.1.2. unforeseeable, urgent maintenance work, e.g. to eliminate security vulnerabilities;
   8.1.3. force majeure or other events beyond the Licensor's control that were unforeseeable and could not be prevented by the Licensor, in particular strikes, lawful lockouts, special weather conditions, power failures, traffic disruptions, fire damage, epidemics and pandemics (in particular COVID-19), legal changes and official orders, as well as operational disruptions or supply difficulties, insofar as they are not the fault of the Licensor (‘force majeure’);
   8.1.4. third parties who are not subcontractors of the Licensor;
   8.1.5. the Licensee or the software or hardware used by them or the Internet connection. This also applies to software whose use has been arranged by the Licensor and/or whose connection has been enabled by the Licensor through interfaces;
   8.1.6. Late reporting of malfunctions and downtime by the Licensee.

   8.2. The availability time is therefore calculated using the following formula:

   (Total time – disregarded downtime – other downtime)
   Maximum availability × 100

   8.3. The burden of proof for falling short of the availability time lies with the licensee.

   8.4. The licensor is entitled to carry out regular maintenance work, but will endeavour 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 vulnerabilities, the Licensor may shorten the notice period or, if no other option is available, begin 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 unauthorised access to the Software and the intrusion of harmful data. If a risk cannot be eliminated by other means at reasonable expense, the Licensor shall be entitled to delete harmful data. It shall inform the Licensee of this as early as possible.

   8.6. There are no maintenance obligations with regard to any third-party software connected via interfaces.

    

9. Licensee content, configurators, email dispatch  

   9.1 The Licensor enables the Licensee to store its own data on the Licensor's hardware within the scope of using the cloud solution and the hosted solution and (also in the case of the on-premises solution) to send its own content in an email newsletter using the software (together ‘Licensee Content’). The Licensor is in no way responsible for checking the Licensee Content, in particular for ensuring that the configurator works correctly with the Licensee Content. The Licensee is solely responsible for the Licensee Content, regardless of whether they entered it themselves or enabled a third party to do so, and regardless of whether the entry by the third party is permitted under the Agreement. The following provisions shall also apply to the Licensee Content:
   9.1.1. The Licensee shall ensure that the Licensee Content does not violate or impair any legal provisions and/or third-party rights, in particular the intellectual property rights of third parties, their personal rights, competition law or data protection provisions.
   9.1.2. In the case of sending email newsletters, the licensee must also ensure that the customers and/or third parties contacted have given their effective consent and that all data protection requirements are otherwise complied with.
   9.1.3. If the licensee violates the obligations under 9.1.1, the licensor is entitled to demand that the licensee delete the infringing content. If necessary, the licensor is entitled to delete the infringing content without prior notice. Furthermore, the licensee shall indemnify the licensor against any claims by third parties arising from the breach, reimburse the licensor for reasonable legal defence costs and provide the licensor with all information, documents and explanations necessary for the legal defence.  

   9.2. The Licensor shall be entitled to delete stored configurators that have not been activated for customers, including the associated Licensee content, after two years. The Licensor shall announce this in writing at least two weeks in advance.
   
    

10. Updates

    The licensor is entitled, but not obliged, to install updates to the software. The Licensor is entitled to adapt and modify the range of services offered by the software in line with technical progress, provided that the agreed functionalities are not significantly impaired. The Licensor is not obliged to ensure backward compatibility with third-party software that does not correspond to the current state of the art and/or interoperability with third-party software. This shall only apply if such interoperability has been expressly agreed as a feature. Warranty claims remain unaffected. For updates to the on-premises solution hosted by the licensee, the licensee must provide the relevant access data.
     

11. 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 ensuring adequate data backup. The Licensor shall not be liable for any data loss (e.g. of entered product data) that could have been prevented by the Licensee taking appropriate backup measures.

    11.2. Insofar as the Licensor is responsible for data loss, liability shall be limited to the typical restoration costs that would have been incurred if regular backup copies had been made in accordance with the state of the art. The limitation of liability under 17. remains unaffected.
     

     

12. Onboarding, maintenance and support

    12.1. The Licensor shall support the Licensee in the customer-specific configuration as part of the onboarding process. Unless otherwise agreed in the order, onboarding services up to a maximum of eight hours shall be covered by the setup fee in accordance with 15.2. (‘Inclusive support’). The Licensor shall invoice any additional services at the hourly rate specified in 2.4. This shall also apply if the Licensee makes use of onboarding services before booking a chargeable service. In the event of a subsequent booking, these shall be credited against the setup fee.  

    12.2. Unless otherwise agreed in the order, the Licensor is not obliged to provide customisation services that go beyond configuration.

    12.3. The Licensor offers support services via chat, telephone and email (‘communication channels’) from Monday to Friday, from 9 a.m. to 5 p.m. CET/CEST (‘service hours’), but not on public holidays in Baden-Württemberg, Germany.

    12.4. If inclusive support has been agreed, there shall be no entitlement to such support if malfunctions were caused by the circumstances specified in 8.1.4, 8.1.5 or 8.1.6, in particular in cases of improper operation by the licensee. The licensee reserves the right to make use of chargeable support services in accordance with 12.3.

    12.5. The licensee shall immediately report malfunctions and downtimes that were not caused by maintenance work via the communication channels and shall ensure that the following information is provided:
    12.5.1. Description, date and time of the malfunction,
    12.5.2. Affected functionality,
    12.5.3. Preliminary classification of priority in accordance with 12.7,
    12.5.4. Measures already taken to remedy the incident.

    12.6. At the request of the Licensor, the Licensee shall provide any further support and information necessary to remedy the malfunction. The provision under 2.5 shall apply accordingly.

    12.7. In the event of malfunctions, the following response times shall apply, provided that the Licensee has reported them in accordance with 12.5:

    12.8. If a reasonable workaround is available or provided by the Licensor, the malfunction shall be classified as priority level 4.

    12.9. If, in the opinion of the Licensor, the priority classification by the Licensee is not appropriate, the Licensor shall decide on the priority level at its reasonable discretion (Section 315 of the German Civil Code (BGB)).

    12.10. The Licensor shall commence processing the malfunction within the applicable response times. Times outside of service hours shall not be considered response times.

    12.11. The licensor is not obliged to remedy the fault within the response times, but will make every effort to remedy faults as quickly as possible and will regularly inform the licensee about the progress of the fault rectification.12.8. Wenn ein zumutbarer Workaround verfügbar ist oder von dem Lizenzgeber bereitgestellt wird, gilt die Störung als solche der Prioritätsstufe 4.

13. Steps	Priority	Description	Response time
    1	Critical	None of the agreed functionalities are available.	4 hours
    2	High	One or more agreed functionalities are completely unavailable.	8 hours
    3	Medium high	Agreed software functionalities are impaired. General support enquiries.	24 hours
    4	Low	Other minor errors	48 hours

     

14. Services and work

    14.1. If the licensee commissions the licensor to perform individual development services, these shall be deemed services unless the provision of work has been expressly agreed.

    14.2. Unless otherwise agreed in writing, agreed completion dates shall be non-binding.

    14.3. Unless otherwise agreed, remuneration shall be based on the hourly rate specified in 2.4. Notwithstanding this, the parties may agree on a fixed price.

    14.4. If the parties have agreed on certain specifications, they may propose changes at any time (‘change requests’). In the event of a change request by the licensee, the licensor shall examine within a reasonable period of time whether it can implement the change. Unless the parties agree otherwise, the hourly rate specified in 2.4 shall apply. This shall also apply if a fixed price was agreed for the originally owed service. Any agreed completion dates shall be postponed by a reasonable period of time.

    14.5. If the parties have agreed on the provision of work services, these shall be accepted in accordance with the following provisions:
    14.5.1. Unless otherwise agreed, acceptance shall take place after overall completion. Unless the licensee objects in writing within two weeks of receiving written notification of completion, the work shall be deemed to have been accepted. The productive use of work performed by the licensor shall be deemed to constitute acceptance.
    14.5.2. The licensee may only refuse acceptance if contractually agreed and documented requirements are not met and the licensee specifies these unmet requirements in writing. In this case, the licensor shall fulfil the missing requirements and the licensee shall then accept the work. The licensee may not refuse acceptance due to minor defects.
    14.5.3. If partial acceptances have been agreed, the entire service shall be deemed accepted upon the last partial acceptance.
    14.5.4. Warranty claims with regard to defects whose rectification the Licensee did not reserve in writing upon acceptance are excluded.
    
     

15. Contract term, extension and termination

    15.1. Productive use is agreed for the term specified in the order, for one month, 12 months or 36 months (‘initial term’).

    15.2. Unless otherwise agreed in the order, the agreement shall be extended for a period corresponding to the initial term (‘extensionperiod’) unless terminated by one of the parties with one month's notice to the end of the initial term. This shall apply mutatis mutandis to the end of each extension period.

    15.3. If a test for certain functions has been agreed (outside or in addition to the test phase), the function may be blocked again by the licensor after 30 days of use. A contract for the test phase shall end in accordance with the provision under 4.2.

    15.4. The right of the parties to terminate the agreement for good cause remains unaffected. Section 543 (2) No. 1 of the German Civil Code (BGB) does not apply.

    15.5. Notice of termination must be given in writing.

    15.6. After 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, it must immediately cease use. Unless otherwise agreed, the licensor shall continue to store the licensee content for six weeks after the end of the contract (‘transition period’) and then irretrievably delete it. During the transition period, the Licensee may export the Licensee Content or request the Licensor to export it in return for payment of the remuneration agreed in 2.4. The Licensee may request an extension of the transition period by one month at a time by means of a written declaration, which must be received by the Licensor at least one week before the end of the transition period. The agreed remuneration shall be paid for each one-month extension of the transition period.
     

     

16. Remuneration, price adjustment

    16.1. The licensee is obliged to pay the remuneration agreed in the order. The remuneration for the cloud solution consists of a monthly payment, which is payable in advance. The remuneration for the on-premises solution is a one-time payment, unless otherwise agreed in the contract.

    16.2. In addition to the remuneration specified in 15.1, the Licensee shall pay the setup fee agreed in the order.

    16.3. If the provision of the on-premises solution has been agreed, the Licensee shall also pay the remuneration agreed in the order for maintenance services. In the case of the cloud solution, maintenance services are included. The provisions under 12.3 and 12.4 apply to support services.

    16.4. If the usage volume specified in 7.2 is exceeded, the Licensee shall be obliged to pay the additional remuneration specified therein. The remuneration for the increased volume shall then be deemed to have been agreed for the remaining term of the contract.

    16.5. All prices are net prices and do not include the applicable value added tax.

    16.6. If the licensee defaults on 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, the licensor shall be entitled, in addition to the statutory consequences of default, to block the software for the licensee until the licensee's payment has been made in full.

     

17. Warranty

    17.1. The warranty is governed exclusively by this provision. The Licensor warrants that the Services have the agreed quality. The agreed quality is determined exclusively by the Agreement and any agreed documentation. All descriptions of the Software in offer documents, correspondence or manuals do not constitute quality agreements.  If a test phase has been agreed, the agreed quality shall also be based on the functionalities that the licensee was able to test in this respect.

    17.2. The licensor's warranty shall not apply in the event of defects that are based on the fact that
    17.2.1. the licensee or its employees have used the software improperly,
    17.2.2. the licensee has not performed or has not performed in a timely manner acts of cooperation,
    17.2.3. the licensee's system environment or hardware is not suitable for using the software,
    17.2.4. third-party services that were not subcontracted by the licensor or services provided by employees of the licensee were used, or
    17.2.5. the licensee noticed defects during the test phase and did not report them.

    17.3. In the event of a defect, the licensor is entitled to remedy the defect twice before the licensee can assert further statutory warranty claims. The licensor must be given a reasonable period of time to remedy the defect. A reasonable period of time is at least four weeks.

    17.4. 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 interface has been agreed in writing and a defect affects the functionality of this interface.

    17.5. If the licensee asserts a defect and it turns out that no such defect exists, the licensor may charge for the expenses incurred by it at the hourly rate specified in 2.4.

    17.6. In the case of insignificant defects, warranty claims are excluded.

    17.7. The licensee is only entitled to any claims for damages in accordance with the provisions under 12.

    17.8. The following provisions apply in addition to the provision of the cloud solution:
    17.8.1. The statutory warranty provisions shall apply, with the exception that the Licensor shall not be liable for damages that already existed at the time the software was provided (Section 536a (1) of the German Civil Code (BGB)) and the Licensee's right to remedy defects itself is excluded (Section 536a (2) BGB).
    17.8.2. The licensee may not enforce a reduction by deducting it from the agreed remuneration. Corresponding claims for enrichment or damages remain unaffected.
    17.8.3. The licensee is obliged to notify the licensor of defects in the software immediately in writing in a manner that enables the licensor to reproduce the defect. The Licensor shall not be liable for any damage incurred by the Licensee as a result of late notification of a defect.

    17.9. If the parties have agreed on the provision of work services, the following provisions shall apply in addition:
    17.9.1. The Licensee shall immediately inspect completed services for any defects after completion of a project phase. Warranty claims are excluded if the licensee has not reported a defect in writing within two weeks of completion of the project phase. If a test phase has been agreed, defects must be reported by the end of the test phase. This does not apply to defects that are not apparent. The licensee must report these within two weeks of becoming aware of them.
    17.9.2. The licensee may only remedy a defect itself or have it remedied by a third party if the licensor has agreed to this in writing.
    17.9.3. The licensor has the right to choose whether to remedy a defect by repair or replacement.

18. Liability

    The licensor's liability for payment of damages and reimbursement of expenses is excluded, unless otherwise specified in the following provisions.

    18.1. The exclusion of liability does not apply to damages caused by culpable breach of a material contractual obligation in a manner that jeopardises the achievement of the purpose of the contract. Material contractual obligations are those obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely. However, liability is limited to the damage typical for this type of contract, the occurrence of which each contracting party had to expect based on the circumstances known to it at that time. With regard to this damage typical for this type of contract, the licensor's liability for property damage and resulting further financial losses is limited to an amount of €50,000.00 per claim.

    18.2. Furthermore, the exclusion of liability does not apply to damage resulting from injury to life, limb or health based on a negligent breach of duty by the licensor or its legal representatives or vicarious agents.

    18.3. The exclusion of liability does not apply to damage resulting from an intentional or grossly negligent breach of duty by the licensor or its legal representatives or vicarious agents.

    18.4. Insofar as the licensor's liability is excluded or limited, this also applies to the liability of the licensor's legal representatives, employees and vicarious agents.

    18.5. 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.

    18.6. Liability under the Product Liability Act remains unaffected.
    
     

19. Force majeure

    Neither party shall be liable for damages caused by force majeure (8.1.3). In cases of force majeure, the affected party shall be released from its obligation to perform for the period during which it is prevented from performing by 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 minimise the effects.
     

     

20. Limitation period

    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 time-barred after one year, regardless 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 clause 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 (2) No. 1 a) of the German Civil Code (BGB) applies. The licensee's right to rectification remains unaffected during the term of this agreement. 
     

     

21. Audit Law

    The licensor is permitted to verify the contractual use of the software at any time by accessing the software. Furthermore, the licensor is permitted to verify the scope of use in the licensee's operations. The licensee must grant the licensor access to all facilities, hardware and software relevant to the verification of compliance with the scope of the licence. The verification of the licensee's operations must be announced in writing in good time, unless there is urgent suspicion of an exceedance of the scope of the licence.
    
     

22. Confidentiality, reference citation

    22.1. Each party shall maintain confidentiality regarding all confidential information disclosed to it by the other party, shall not use such information for any purpose other than the fulfilment of the agreement, and shall not disclose or make such information available to third parties. ‘Confidential information’ means all information that one party (‘disclosing party’) discloses to the other party (‘receiving party’) in the course of pre-contractual and, where applicable, contractual cooperation or that the receiving party has otherwise obtained knowledge of, provided that (i) it has commercial value, (ii) there is a legitimate interest in its confidentiality, and (iii) it is either marked as confidential or its confidential nature is apparent from the nature of the information or the circumstances of its disclosure.

    22.2. The parties are entitled to disclose confidential information to employees and affiliated companies, provided that they are subject to confidentiality obligations that are essentially equivalent to the obligations set out in this agreement. For the licensor, this also applies to disclosure to subcontractors.

    22.3. Confidential information under 21.1 does not include information which the receiving party proves
    22.3.1. is generally known or readily accessible to persons in circles that normally deal with this type of information,
    22.3.2. it becomes generally known or readily accessible to persons in circles that normally deal with this type of information after disclosure by the disclosing party, without this being attributable to an act or omission in breach of duty on the part of the receiving party;
    22.3.3. the disclosing party has waived its protection in writing;
    22.3.4. it has obtained the information by means other than through cooperation with the disclosing party, without being subject to any confidentiality obligation;
    22.3.5. it has developed the information independently of the confidential information of the disclosing party;
    22.3.6. it has obtained the information by observing, examining, reverse engineering or testing a product or object that has been made publicly available, without prejudice to any copyright protection.

    22.4. In the event of disclosure due to an official or judicial order or a legal obligation, the other party shall be informed before the disclosure, to the extent and as soon as permissible. The parties shall assist each other in preventing the disclosure, to the extent legally possible.

    22.5. The licensor is entitled to name the licensee as a reference customer. This includes, among other things, naming the licensee without further consent and publishing a success story, the content of which must be agreed with the licensee.

    22.6. Further data protection obligations remain unaffected.

    22.7. This confidentiality obligation shall apply for the term of this agreement and for a further three years. Statutory or contractual obligations to delete or return data earlier or to keep data confidential on a permanent basis remain unaffected.

    
    
     

23. Data protection

    23.1. The parties undertake to comply with the applicable data protection regulations.

    23.2. The parties are aware that the storage of the licensee's personal data on the licensor's hardware constitutes order processing in accordance with Art. 28 GDPR. The parties have therefore concluded the order processing agreement attached as an appendix.
     

     

24. Export regulations
    
    The Licensee undertakes 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 shall not offer or provide any services using the Software in any country subject to applicable economic sanctions or other trade controls, unless the Licensor has obtained an exemption. The Licensee warrants that it will not (i) use the Software in violation of the provisions of Export Laws, (ii) use the Software for any purpose prohibited by Export Laws, or (iii) provide services to persons/entities that are not authorised to use the Software. The Licensor is entitled, but not obliged, to carry out necessary checks of export laws, and the Licensee shall provide the Licensor with all necessary information immediately upon request. The Licensee undertakes to indemnify the Licensor against all claims, lawsuits, claims for damages, fines and costs in any way related to the Licensee's non-compliance with export laws.
    
     

25. Final provisions
    
    25.1. The licensee is not entitled to transfer the agreement or rights arising therefrom to third parties 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.
    
    25.2. The licensee may only offset claims against the licensor with undisputed or legally established counterclaims. The same applies to the assertion of a right of retention by the licensee.

    
    25.3. Any amendments to the agreement must be made in writing. This also applies to any amendment to this written form requirement.
    
    25.4. The licensee's general terms and conditions shall not form part of the contract, even if they have not been expressly rejected in detail.
    
    25.5. Should any provision of this agreement be or become invalid, this shall not affect the validity of the remainder of the agreement. The invalid provision shall be replaced by a provision that comes closest to the economic purpose of the invalid provision. This also applies in the event of a contractual loophole.

    
    25.6. German law applies, excluding the UN Convention on Contracts for the International Sale of Goods.
    
    25.7. 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.