General terms and conditions
General terms and conditions of promathics GmbH for deliveries, services and software licenses
1. Scope of application
These terms and conditions apply to all contractual relationships and pre-contractual negotiations with our customers, regardless of the nature and scope of the service in the context of current and future business relationships.
Our terms and conditions apply exclusively.
Conflicting terms and conditions of our customers or third parties are only valid if promathics GmbH (hereinafter referred to as “promathics”) expressly and in writing agrees to their validity.
If you do not agree, please inform promathics in writing. In this case promathics reserves the right to withdraw its offers without being obliged to assert claims of any kind.
The formal hint of the customer on own business conditions is hereby expressly contradicted.
3. Conclusion of contract and written form
In principle, promathics only enters into a contractual obligation, if the nature and scope of the service and consideration have been determined in writing by both parties. Subsequent oral changes and additions will not take effect until they have been confirmed in writing. The same applies to all declarations of intent, particularly to the objections, reminders and claims in the context of contractual relations.
Penalties must be expressed in writing from both parties. This clause can only be cancelled by express written agreement.
4. License and scope of use for software delivery
Promathics, in its capacity as right-holder, transfers to the customer the non-transferable and non-exclusive right to use the software and documentation specified in the order and / or invoice for an indefinite period. The customer hereby acquires the right to use the software within himself within a local network or via a service provider (external server) to the extent he has paid royalties. The basis of assessment for this is the number of licenses and / or any special agreements to the extent of the right of use (license agreement) listed in the associated invoice.
Further property rights of the customer to the software, particularly any kind of marketing or utilization to third parties such as letting, lending or sale are excluded. The same applies to any reproduction, use, alteration or reproduction of the content of the software not expressly approved, beyond the scope of its intended use, as well as any form of processing or other redesign of the software and the associated documentation. It is prohibited, beyond what may be permitted by law, to decompile, re-assemble or otherwise convert the software into a generally legible form.
The license automatically ceases to be effective without the need for termination if you breach any provision of this Agreement. In the event of termination, you are required to destroy the software and all copies thereof. You may terminate the license agreement at any time by destroying the Software including all copies.
The software is protected by copyright. The copyright includes especially the program code, the documentation, the appearance, the structure and organization of the program files, the program names, logos and other forms of representation within the software.
promathics remains the owner of all copyrights and usage rights to the software provided to the customer, including the associated documentation material. Changes and enhancements of the program code, which are carried out on request and account of the customer, become the property of promathics. The rights of use for the program improvements are assigned to promathics. promathics hereby accepts the assignment.
6. Property rights of third parties
Customer shall promptly notify promathics of any infringement of intellectual property rights in connection with the use of the Software for infringement of copyright, patents or other intellectual property rights.
The customer will not acknowledge such claims without the consent of promathics. Rather, the customer allows promathics, upon request, to conduct all necessary negotiations and procedures in this connection. The customer will give promathics the necessary support. In the case of claims already raised or expected due to copyright, patent rights or other intellectual property rights, promathics may, at its own expense, modify or replace the Software to prevent infringement. The performance of the software system provided by promathics must not be reduced.
If the use of the Software or any part of it is prohibited by a court order, or if promathics, at the discretion of promathics, is threatened with a patent infringement claim, promathics shall be entitled at its discretion and expense
- modify the software so that it no longer infringes any intellectual property rights;
- to give the customer the right to continue to use the software;
- replace the software in question with software that does not infringe any intellectual property rights and that either meets the requirements of the customer or is equivalent to the replaced software.
If and to the extent that the services to be rendered by promathics are work performances, promathics will notify the customer in writing of the completion and request the customer to accept them.
In the event of acceptance, the customer will notify promathics in writing without delay, but no later than 14 days after the written notice from promathics.
If no acceptance by the customer takes place within this period, the acceptance shall still be deemed made. Decisive for the start of this period is the receipt of the letter by the customer. If the customer pays the compensation without objection after commissioning the delivered software, this is equivalent to acceptance of the software. The services / software to be provided shall also be deemed accepted if the customer uses them in production. The acceptance cannot be refused due to the existence of insignificant defects.
promathics guarantees for a period of twelve months from the date of transfer of the risk that the software, concerning its functionality, corresponds essentially to the terms and conditions, which are usual with works or items of the same kind and which the customer can expect, according to the nature of the work or the item. If the customer is a consumer within the meaning of the German Civil Code, the warranty period is two years.
A liability for a certain condition exists only if this was agreed expressly and in writing (contractually agreed condition).
promathics points out that it is not possible in the prior art to create computer software completely error-free.
If an error occurs in the software, then the customer is obliged to report this immediately in writing to promathics. In the context of the written notice of defects, the defect and its manifestation must be described so precisely that a check of the defect (e.g. submission of the error messages) is feasible and the exclusion of a user error (e.g. specification of the work steps) is possible.
If the notice of defects proves to be justified, the customer shall set promathics a reasonable period for supplementary performance. To perform the remedy for the same or directly related defect, promathics shall have two attempts within the time limit set by the customer. After the second failed attempt at subsequent performance, the customer can withdraw from the contract or reduce the license fee / fee. The right of rescission or reduction can be exercised after the first unsuccessful supplementary performance attempt, if a second attempt within the set deadline cannot be expected by the customer. If the supplementary performance has been refused under the conditions set out above, the customer is entitled to the right of reduction or withdrawal immediately.
The resignation due to a minor defect is excluded.
promathics is entitled to install a fallback, if it is impossible or economically unreasonable to remedy the defect, if it leads to a proper solution to the problem.
If not expressly agreed upon, promathics does not assume any warranty that the software complies with the customer’s special requirements or works together with programs of the customer or the hardware available to the customer.
If the customer has made use of promathics warranty and it turns out that either defect is not present or the defect claimed does not oblige promathics to provide a warranty and provided that the claim against promathics is grossly negligent or intentional, the customer has to reimburse all expenses incurred by promathics.
9. Liability and limitation
The contractual and legal liability of promathics is limited in each case to intent and gross negligence, in the case of simple negligence on the breach of essential contractual obligations. The above limitation of liability also applies to employees, representatives and vicarious agents of promathics.
In case of slight negligence, the liability of promathics for the replacement of the foreseeable, contract-typical, direct average damage, in the case of gross negligence on the predictable, typically occurring damage is limited. The second sentence of the preceding paragraph applies accordingly.
The limitations and limitations of liability listed in subsections (1) and (2) shall not apply in the case of lack of guaranteed quality, malice, injury to life, body and / or health. Liability based on mandatory, indispensable statutory provisions, particularly under the Product Liability Act and the Federal Data Protection Act, also remains unaffected.
In the case of a claim against promathics a contributory negligence of the customer is to be considered appropriately, particularly with insufficient error messages or insufficient data protection. Inadequate data protection exists especially if the customer has failed to take precautions by appropriate state-of-the-art safeguards against outside influences, especially against computer viruses and other phenomena that can jeopardize individual data or a complete dataset.
The limitation period for non-essential breaches of contract is limited to two years.
10. Confidentiality, privacy
promathics and the customer mutually agree to keep all business and trade secrets of the other side for an indefinite period of time and not to pass them on to third parties or to exploit them in any way. The documents, drawings and other information received by the other contracting party based on the business relationship may only be used by the other contracting party within the framework of the respective contract purpose.
11. Choice of law, place of performance and place of jurisdiction
Our entire business relations with our customers are exclusively subject to the law of the Federal Republic of Germany, excluding the provisions of international private law. The application of the UN Sales Convention (CISG) is expressly excluded.
Place of fulfilment for deliveries and services is the place that is contractually agreed as a fulfilment address, in doubt Leipzig. Place of performance for payments is the location of the paying agent indicated on the invoice.
Jurisdiction for both parts is Bad Homburg vor der Höhe, promathics is however entitled to assert its own claims at the place of jurisdiction of the customer.
If the contractual partner of promathics is not a registered trader, the legal regulation applies.
12. Severability clause
Should individual clauses of these terms and conditions or any individual agreements concluded otherwise be wholly or partially invalid, this shall not affect the validity of the remaining clauses. The ineffective clause will be replaced by another which comes closest to the economic purpose of the ineffective provision and which in turn is effective.
13. Exclusivity of the German version of these terms and conditions
Only the German version of these general terms and conditions of promathics for deliveries, services and software licenses is legally binding. Any versions of these terms and conditions of promathics for deliveries, services and software licenses, that are not written in German, are for informational purposes only. The German text therefore takes precedence in the case of an inconsistency between the German text and the text written in another language.
As of June 2018