General Terms and Conditions of Pintexx GmbH for the Temporary Licensing of Software
The licensing of Pintexx software, in particular the software product "pinApps" (hereinafter: Software) for certain periods of time (hereinafter: Software Licensing) by the company Pintexx GmbH, Schindersgrube 1, 74388 Talheim, Germany (hereinafter: Pintexx) to companies within the meaning of Section 14 BGB (hereinafter: the Customer) takes place on the basis of the following General Terms and Conditions (hereinafter: GTC), unless Pintexx and the Customer agree otherwise in text form in individual cases, on the basis of an offer and its acceptance (hereinafter: Individual Contract):
1. Conclusion of Individual Contracts, term of the Individual Contract
- a. General terms and conditions of business or purchase of the Customer shall only apply to Pintexx if Pintexx has expressly agreed to them in writing. These GTC shall also apply exclusively if Pintexx makes software available without reservation in the knowledge of the Customer's conflicting general terms and conditions of business or purchase.
- b. All offers issues by Pintexx shall be non-binding, unless Pintexx expressly designates them as binding. Pintexx may accept offers from the customer within two weeks of receipt by Pintexx.
- c. Offers and acceptances shall be in text form to be effective. Subsidiary and additional agreements to an Individual Contract, information about the quality of the software and agreements that are made or made before, during or after the conclusion of an Individual Contract must be in text form, and expressly refer to the Individual Contract in question to be effective. The requirements of Section 2 (b) of these General Terms and Conditions shall apply to representations and warranties
- d. Unless otherwise expressly agreed between the parties, Pintexx shall only make software available to the Customer for use on a licence basis, i.e., for the term of the respective Individual Contract. Individual contracts for software rental have an indefinite term and, according to the respective offer of Pintexx, can be terminated either monthly or only annually. For Individual Contracts with monthly notice, the notice period shall be one month to the end of the month. For Individual Contracts that can only be terminated annually, the notice period shall be three months to the end of a term year (i.e., at the end of 12 months from the start of the term or the respective subsequent renewal date).
- e. The right of either party to extraordinary termination in accordance with the statutory provisions shall remain unaffected. Any notice of termination must be in writing.
2. Subject of the Individual Contract
- a. The nature and functionality of the software, including any information on the supported application environment, arise from the respective service descriptions, data sheets, documentation, release notes and other information published by Pintexx (hereinafter collectively: the Accompanying Material), unless otherwise agreed in text form in the Individual Contract.
- b. The description of features and functionality in the Accompanying Material shall not to be understood as an assurance or guarantee of certain features. Additional agreements on the software in the Individual Contract may only be understood as functionality assurances or guarantees by Pintexx if they are made in text form by the management of Pintexx and are expressly marked as "assurance" or "guarantee".
- c. Pintexx shall only be liable for the delivery of machine-readable object code but not for the delivery of other program codes, source code in particular.
- d. Pintexx mat adopt suitable technical measures to protect against non-contractual use of the software (temporary licence or serial numbers, copy protection plugs (Pintexx dongle), digital rights management system, etc.), provided that the use of the software on an alternative or successor hardware of the customer is not significantly impaired thereby.
- e. The software and accompanying material are delivered either on data carriers, by e-mail or by making them available on the Pintexx website for download by the customer. The documentation can also be integrated into the software as an online help. If the customer has received an equivalent trial version of the software and accompanying material prior to the conclusion of the Individual Contract, Pintexx's delivery obligation shall be limited to the provision of the necessary technical measures within the meaning of Section 2 d. to activate the paid version of the software.
- f. Pintexx may deliver the individually contracted software or the accompanying material in an updated release version, provided that at least the features and functionality described in the Individual Contract are included therein.
3. Rights to use the software
- a. Pintexx grants the customer, against payment of the licence fees, a non-exclusive right to use the software (hereinafter: Software License) limited in time to the term of the individual order under the following provisions. This limited right of use also applies to the accompanying material (online documentation, manuals) and subsequent software releases that Pintexx makes available to the customer under the relevant Individual Contract. The use of the software by the customer is limited to the support of the respective internal business operations of the customer (hereinafter: Organisation). Any use for the purpose of supporting the business operations of another third party requires a separate Individual Contractual agreement with Pintexx.
- c. The customer may not grant any sublicenses without the prior written consent of Pintexx, and may not sublet or lend the software or the accompanying material
(i) to third parties or use it as part of IT services, in particular as part of the operation of a data centre or an outsourcing operation, or as part of time-sharing agreements or, in any other way, for temporary use or use for the purposes of third parties, or allow third parties to use them,
(ii) nor use them to develop independent programs or own documentation. The Customer may not transfer the rights of use.
- d. Apart from the rights of use expressly granted by letters a. and b., the customer does not acquire any rights to the software supplied by Pintexx and to the accompanying material. Both the names and trademarks used for the software and the industrial property rights and copyrights existing in the software and accompanying material remain exclusively with Pintexx.
4. Duties of the Customer
- a. The Customer
undertakes to create and maintain the system environment required for using the software and recommended by Pintexx in the accompanying material and install the software itself.
- b. The Customer, insofar as a (limited or unlimited) licence or serial number is required for the use of the software, undertakes to adopt the necessary measures and truthfully provide and keep updated the necessary information about itself. The Customer, in subsequent correspondence with Pintexx – in particular upon repeat orders – undertakes to specify the reference data required by Pintexx in each case.
- c. The Customer undertakes to perform the regular backup of data that is processed or created during the use of the software. The Customer, if the software supplied fails not work properly after installation, undertakes to adopt the necessary precautions, in particular with regard to data of business-critical importance.
- d. The Customer, immediately after software installation, undertakes to check its basic functionality and report any defects within 10 working days after it can be used for the first time. The Customer also undertakes to report any subsequent defects in the software without delay, at the latest within 10 working days of becoming aware of them. Any defect notification shall be made in writing via the e-mail address firstname.lastname@example.org and must be expressly designated as such. The Customer, in each defect notification, undertakes to identify the defects in a comprehensible and detailed form, stating all relevant information for defect recognition and analysis. In particular, the work steps which lead to the occurrence of the defect, the manifestation and the implications shall be provided. Failure by the Customer to fulfil these obligations entails the forfeiture of its rights under Section 6 herein.
- e. The customer undertakes to provide Pintexx with appropriate support in eliminating any defects in the software that the former has duly reported in accordance with Section 4. Letter d. As far as reasonable, the customer undertakes to set up a remote access.
- f. The Customer undertakes to reimburse Pintexx for expenses incurred by Pintexx in connection with
- h. The Customer undertakes to stop using the software and delete the software, including the accompanying material, from its IT system, at the end of the term of the respective Individual Contract.
5. Prices and payment terms
- a. Prices and licence fees for the software result from the Individual Contract.
All prices in offers, price lists and in Individual Contracts are stated in Euro and do not include VAT. Prices agreed in the Individual Contract and the agreed licence fee are payable immediately without deduction upon receipt of the invoice.
- b. The Customer agrees that the number of Named Users and/or the number of Concurrent Users shall be electronically transferred to the Pintexx Reporting System for verification purposes.
- c. Unless otherwise agreed in text form, the billing process depends on the type of licensing selected by the Customer in the Individual Contract and on the basis of the information provided by the Customer under para. 5 b. as follows:
- (i) monthly billing: based on the number of named users of the software and the agreed price/user/month, the monthly usage price is determined and billed to the customer;
(ii) annual billing: between the customer and Pintexx, the amount defined annually for a maximum number of users is billed at the beginning of the term year. If this maximum number of users is exceeded, Pintexx may demand a proportionate additional payment, or the agreement of an increased payment for the following year.
- d. If the customer falls completely or partially in arrears on any claim, Pintexx may carry out further services and deliveries, including those under other Individual Contracts, only against advance payment, to make all outstanding invoices due immediately and to make further deliveries dependent on the provision of appropriate security.
- e. Payments by the customer shall be settled, subject to the following letter e., without deduction to the bank details provided by Pintexx, unless the parties agree on payment by SEPA company direct debit in the Individual Contract. Pintexx shall only bills of exchange and cheques upon prior agreement and only on account of performance. Any discounting and banking charges shall be borne by the customer.
- f. The parties agree that, for the duration of an agreed SEPA company direct debit procedure, the period for advance information (notice) about an upcoming direct debit shall be reduced to five (5) days. The direct debit notice will be made by means of a corresponding note on the associated invoice.
- g. The customer may only offset undisputed or legally established claims and assert any statutory rights of retention solely on the basis of such claims. Furthermore, the customer may only exercise a right of retention for counterclaims based on the same Individual Contract.
6. Customer's material defect claims
- a. Pintexx shall not be liable for defects that cannot be reproduced. No-fault liability for initial material defects existing at the time of conclusion of the contract is excluded. Furthermore, claims for damages due to defects are excluded if Pintexx is not at fault (e.g., in the case of defects in the software, third-party components or the Internet).
- b. If the Customer has properly reported defects in the software in accordance with Section 4 (d) and (e) of these GTC and may assert claims for material defects according to this provision, the Customer will only be entitled to supplementary performance (error elimination and replacement delivery) when lacking an Individual Contract for maintenance services. As part of supplementary performance, Pintexx shall deliver bug fixes, workarounds or updates of its own choice within a reasonable period of time based on Pintexx's assessment of the criticality of the defect based on the customer's report. Only if the supplementary performance fails at least twice or cannot be carried out for other reasons can the customer reduce the remuneration in accordance with the statutory requirements, terminate the Individual Contract and/or claim damages or reimbursement of expenses in accordance with para. 8 of these GTC. The customer shall assert its right to choose claims for defects within a reasonable period of time, as a rule within fourteen (14) calendar days.
- c. Pintexx guarantees the maintenance of the contractually agreed quality of the software for the duration of the Individual Contract by delivering, at its reasonable discretion, software releases for problem and error elimination and software improvement. Any further statutory warranty is excluded, unless there is gross negligence or intent on the part of Pintexx.
7. Claims for defects of title by the customer upon infringement of property rights
Pintexx shall only be liable for infringements of industrial property rights and copyrights (hereinafter: "Property Rights") of third parties through the use of the software for the duration of the Individual Contract in accordance with the following provisions:
- (i) Pintexx may only be held liable if all of the following conditions are met:
- the customer uses the Software in accordance with the contract, in particular in the contractually stipulated use environment;
- the use of the Software by the Customer is limited to the European Union and the European Economic Area;
- the customer has immediately notified Pintexx in text form that a third party is asserting an infringement of property rights against the customer;
- Pintexx caused the infringement of intellectual property rights with gross negligence or intentionally.
- (ii) Under the conditions stated under (i), Pintexx is solely liable as follows: Pintexx will, at its own discretion and expense, (i) provide the customer with the right to use the software or (ii) make the software free of infringement or (iii) take back the service with reimbursement of the remuneration paid by the customer (minus a reasonable compensation for use), if Pintexx cannot achieve any other remedy with reasonable effort. In this context, customer's interests must be adequately considered.
8. General liability of Pintexx and statute of limitations
- a. Pintexx shall always be liable to the customer (i) for damage caused intentionally or through gross negligence by the customer and its legal representatives or vicarious agents, (ii) under the Product Liability Act and (iii) for damage resulting from injury to life, limb or health for which Pintexx, its legal representatives or vicarious agents are responsible.
- b. Pintexx shall not be liable in the event of slight negligence, unless Pintexx itself has breached an essential contractual obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which the customer relies and may also rely ("cardinal obligation"). Pintexx's liability for the breach of cardinal obligations shall be limited to contract-typical and foreseeable damage to property and financial losses. Liability for lost profits, missed savings, business interruptions and other distant consequential damages is excluded. Pintexx's liability for the breach of cardinal obligations shall be added – for each individual case and the sum of all individual cases per contract year – to the agreed net annual value of the Individual Contract concerned. When concluding the Individual Contract, the parties may arrange, for a separate fee, for an extended liability per claim or contract year. This paragraph shall not affect the liability referred to in point (a) above.
- c. Pintexx shall only be liable for damages arising from a guarantee if they are expressly assumed in the guarantee. This liability shall be subject to the limitations set out in point (b) in the case of slight negligence.
- d. Upon loss of data, messages and information, Pintexx shall only be liable for the expenditure required to restore the data, messages and information in the event of regular, proper backups by the Customer. In the case of slight negligence on the part of Pintexx, this liability only arises if the customer has carried out a proper data backup immediately before the measure leading to the loss of data.
- e. Claims for damages shall expire within one year from the statutory limitation period. Statutory deadlines remain unaffected in case of an intentional or grossly negligent breach of obligation by Pintexx and in cases of injury to life, limb or health.
- f. For claims for reimbursement of expenses and other liability claims of the customer against Pintexx, letters a to e of this section apply accordingly.
9. Further conditions
- a. Each Individual Contract between Pintexx and the customer and their conclusion or termination are subject to the law of the Federal Republic of Germany, to the exclusion of those provisions of German international private law, the application of which would result in the application of a different legal system.
- b. Should a provision of these GTC or an Individual Contract be or become void, this does not affect the effectiveness of the Individual Contract, unless adherence to the individual order would represent unreasonable hardship for one of the parties.
- c. The customer shall observe the import and export regulations applicable to the services on its own responsibility and handle legal or official procedures in connection with cross-border deliveries or services on his own responsibility, unless otherwise expressly agreed.
- d. Amendments and additions to an Individual Contract must be agreed in writing. This shall also apply in the event of an amendment to this point (d).
- e. Pintexx may transfer all rights and obligations arising from an Individual Contract to an affiliated company within the meaning of §15 AktG at any time, even without the customer's consent. Pintexx undertakes to notify the customer of such a transfer in writing.
- f. The Customer may not transfer the rights and claims under this contract to a third party without the prior consent of Pintexx. This consent must be in writing.
- g. The content of an Individual Contract replaces all previous statements by Pintexx in relation to the delivery item of the relevant Individual Contract.
- h. The place of jurisdiction for any dispute arising from and in connection with an Individual Contract – including with regard to its conclusion and termination – with a merchant, a legal entity under public law or a special fund under public law is the registered office of Pintexx. The above choice of this place of jurisdiction is exclusive only for the customer.