Terms and conditions

General Terms and Conditions of ProDigital Consulting GmbH

ProDigital Consulting GmbH, Lise-Meitner-Straße 3/1, 89081 Ulm (“Licensor”) offers software which it provides to the “Licensee” for use and which enables the Licensee to provide its customers (“Customers”) with an individualised configurator for various types of products (“Configurator”) (“Software”). The Licensee has either registered online for use and booked certain services or agreed the services with the Licensor in a separate order (online booking and separate order together the “Order”). In addition to the provisions of the Order, the following “Terms of Use” apply (together with the Order the “Agreement”):

1. Subject matter of the Agreement

1.1. The subject matter of the Agreement are the services agreed in the Order, namely either the provision of the Software for a limited period (“Cloud Solution”) or the purchase of the Software (“On-Premises Solution”). In the case of the Cloud Solution, the Licensee can create its own configurators for its Customers. In the case of the On-Premises Solution, the Licensor creates a finished configurator for the Licensee, which the Licensee can offer to its 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 set out in the Order. The Licensee may book additional functions at any time (in the case of the Cloud Solution also online). The extended functional scope then applies for the remaining contract term pursuant to 14.

1.4. Where agreed in the Order, the Licensor may provide the Licensee with certain functions of the Cloud Solution free of charge for testing purposes for a period specified in the Order (“Trial 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 Trial Phase.

1.5. The Licensor does not owe the provision of error-free configuration data. It merely provides a tool that facilitates the planning of a product and enables the ordering of the required materials. The Licensor points out that this does not replace a careful check of the data and planning prior to execution, in particular in the case of construction projects. The Licensee and its Customers are themselves responsible for this. The Licensee must inform its Customers of this.

2. Principles of cooperation

2.1. The parties will cooperate in a spirit of trust and, in the event of disagreements, will make constructive efforts to find a solution. If a solution is not possible, the parties shall first attempt to find a solution at the level of management or another senior level of their companies. The right of the parties to initiate legal proceedings remains unaffected.

2.2. The Licensee shall provide the Licensor with the information, data, content and documents required for the provision of the services and shall also otherwise perform all necessary acts of cooperation. The Licensee shall bear all expenses associated with the provision of cooperation services itself.

2.3. The Licensee is solely responsible for its IT infrastructure, in particular for its installation and operation, and bears all necessary expenses, as well as for the internet connection required for 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 the On-Premises Solution, the Licensee is additionally responsible for the operation of the Software, unless it has been agreed that the Licensor hosts it on its servers (“Hosted Solution”). Any maintenance obligations of the contractor pursuant to 12. remain unaffected.

2.4. Insofar as the Licensee makes use of individual services of 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 commenced 15 minutes will be invoiced.

2.5. If the Licensee fails to fulfil necessary obligations to cooperate or does not fulfil them properly, the Licensor's obligation to provide services shall lapse to the extent and for the period in which the provision depends on the prior fulfilment of the Licensee's obligations to cooperate. The Licensor is entitled to demand compensation for any additional expenditure incurred as a result of a missing or delayed act of cooperation at the hourly rate stated in 2.4.

2.6. The Licensor is entitled to use subcontractors for the provision of all services. Any deviating data protection provisions between the parties remain unaffected.

2.7. If the Licensee allows third parties to use the Software, it shall be responsible for their actions as for its own actions, regardless of whether permitting such use was admissible. It shall ensure that the third parties are aware of the provisions of this Agreement in this respect and that they comply with them.

3. Registration, conclusion of contract and delivery

3.1. The Licensee can register itself for the Cloud Solution. Registration is free of charge and leads to the conclusion of a user agreement for the free Trial Phase, during which the Licensee may 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 made after entering the corresponding payment details in an online form (“Registration Form”).

3.3. Offering the Registration Form does not yet constitute a contractual offer by the Licensor to conclude a contract for Productive Use, but an invitation to the Licensee to submit an offer, which the Licensee makes by submitting the Registration Form. The employee of the Licensee who submits the Registration Form warrants that they are able to effectively represent and bind the Licensee accordingly. The Licensor may decide at its sole 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 provides one or more configurators for the Customers in accordance with the specifications agreed in the Order. Depending on the agreement, this is 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 required access data.

4. Trial Phase

4.1. During the Trial Phase, the Configurator may only be used by Users (as defined under 5.1). Productive Use, in particular offering the Configurator to Customers, is prohibited. In particular, the Licensee is not entitled to create accounts for Customers or to pass on account data in order to use the Configurator during the Trial Phase. During the Trial Phase, the Licensee is also prohibited from carrying out configurations with the Software for Customers or together with Customers itself.

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 contract for the free Trial Phase ends with the deletion. 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 created in a personalised manner for each User. The creation and/or use of accounts used by several persons (“Shared Accounts”) is not permitted.

5.2. The Licensee must ensure by means of organisational measures (e.g. appropriate instructions) that (i) the data entered is correct and (ii) the Users do not pass on their access data. Insofar as the Licensor provides various security options for login (e.g. multi-factor authentication), the Licensee is responsible for their configuration and selection.

5.3. The Licensor is in particular not responsible for misuse and/or the alteration or deletion of data 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, where reasonable after a corresponding prior warning in text form.

6. Scope of use

6.1. In the case of the Cloud Solution, the Licensor enables the Licensee to store its own data to the extent agreed in the Order (“Data Volume”) or, if not agreed there, up to a maximum of 5 GB.

6.2. Unless otherwise agreed in text form, the Licensee may embed 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 its own purposes, limited to the contract term in the case of the Cloud Solution and unlimited in time in the case of the On-Premises Solution. The right of use is limited to using the Cloud Solution to create its own configurator, which the Licensee makes publicly accessible to its Customers. In the case of the On-Premises Solution hosted on the Licensee's servers, the Licensee is entitled to make it publicly accessible for use by the Customers. The Licensee is entitled to permit Users to use the Software.

7.2. The Licensee must comply with the agreed scope of the licence. If a limitation of the scope of use has been agreed (e.g. use of the Configurator under only one domain or a Data Volume) and the Licensee exceeds this scope, the Licensor is entitled to demand additional reasonable remuneration, to be calculated on the basis of the prices communicated by the Licensor to the Licensee or publicly or, if no such prices exist, taking into account the agreed volume and the excess. This also applies in the event that the Licensee or the 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 stated in the Agreement and must protect the Software against unauthorised access by third parties. Without limiting the generality of the foregoing, the Licensee is in particular not permitted to (i) use the Software or parts thereof for purposes other than the creation of a configurator which 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 permit access in any way to persons other than the Users, in particular by passing on access data and/or using Shared Accounts, (iv) modify, supplement, alter 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 where this is permitted by mandatory statutory provisions); (vi) make copies of the Software or parts thereof, with the exception of the copies required for the operation of the On-Premises Solution, where this has been agreed, (vii) use the Software for the development of a competing product or service, (viii) deactivate, modify or circumvent any 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) embed the Configurator under more than one domain, unless otherwise agreed in text form, or (xi) remove, alter 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 accessible to Customers for use remains unaffected.

7.4. The statutory rights of the Licensee pursuant to Section 69d (2) and (3) and Section 69e of the German Copyright Act (Urheberrechtsgesetz) remain unaffected, but with the proviso that (i) decompilation of the Software pursuant to Section 69e of the German Copyright Act may only take place after a prior written request to the Licensor in which the Licensor is asked for the required information and the Licensor does not provide the required information within two weeks, and (ii) the parties conclude a corresponding non-disclosure agreement.

7.5. Insofar as the Licensee expresses requests for changes to the Software or makes suggestions for improvement, the Licensor is entitled but not obliged to implement them, unless changes are the subject of agreed development services (cf. the provision under 13.). Unless otherwise agreed, the Licensor is entitled to make the results available to other customers as well, both in the case of commissioned development services and in the case of changes made without a legal obligation. Insofar as the results contain contributions from the Licensee, the Licensee grants the Licensor an irrevocable, non-exclusive, transferable right of use thereto that is unlimited in time and place. The right of use includes in particular the rights of reproduction, distribution and making available to the public as well as other public communication, 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 is entitled to terminate the Agreement. Further rights of the Licensee remain unaffected.

7.7. If claims are asserted against the Licensee due to an infringement of the rights of third parties and the Licensor is responsible for this, the Licensor shall indemnify the Licensee against these claims within the scope of the provision under 17. and reimburse the costs of legal defence in accordance with the statutory fees, provided that the Licensee (i) informs the Licensor of the claim without delay, (ii) does not take any action vis-à-vis third parties that could affect the legal dispute (e.g. an acknowledgement or the conclusion of a settlement), (iii) provides the Licensor with reasonable support 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 written pleadings. The Licensee shall make the necessary declarations for this purpose. The Licensor shall take the interests of the Licensee into account appropriately.

8. Hosting

8.1. The Cloud Solution or the Hosted Solution is available to the Licensee on average 99.5% of the time per calendar year (“Availability Time”), provided the Software is used as contractually agreed. The Availability Time does not include outages caused by the following circumstances (“disregarded downtime”):
8.1.1. announced maintenance work pursuant to 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 which were not foreseeable and could not be prevented by the Licensor, in particular strikes, lawful lockouts, exceptional weather conditions, power failures, traffic disruptions, fire damage, epidemics and pandemics (in particular COVID-19), changes in the law 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 it uses or the internet connection. This also applies to software whose use the Licensor has arranged and/or whose connection it enables through interfaces;
8.1.6. the delayed reporting of malfunctions and downtimes by the Licensee.

8.2. The Availability Time is therefore calculated according to the following formula:

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

8.3. The Licensee bears the burden of presentation and proof for a shortfall in the Availability Time.

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 no later than 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 not otherwise possible, begin the maintenance work without prior notice. If prior notice is not possible, the Licensee must be informed immediately after the work has begun.

8.5. The Licensor will use virus scanners and firewalls in accordance with the state of the art in order to prevent unauthorised access to the Software and the intrusion of harmful data. Insofar as a risk cannot otherwise be eliminated with reasonable effort, the Licensor is entitled to delete harmful data. It will 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, within the scope of using the Cloud Solution and the Hosted Solution, to store its own data on the Licensor's hardware and (also in the case of the On-Premises Solution) to send its own content in an email newsletter with the Software (together “Licensee Content”). The Licensor is in no way responsible for checking the Licensee Content, in particular not for ensuring that the Configurator works without errors with the Licensee Content. The Licensee alone is responsible for the Licensee Content, regardless of whether it entered it itself or enabled a third party to do so and regardless of whether the entry by the third party is permissible under the Agreement. In all other respects, the following provisions apply to the Licensee Content:
9.1.1. The Licensee must ensure that the Licensee Content does not violate or impair any statutory provisions and/or rights of third parties, in particular the intellectual property of third parties, their personality rights, competition law or data protection provisions.
9.1.2. In the case of sending email newsletters, the Licensee must also ensure that effective consent has been obtained from the Customers and/or third parties contacted and that all data protection requirements are otherwise complied with.
9.1.3. Should the Licensee breach the obligations under 9.1.1, the Licensor is entitled to demand that the Licensee delete infringing content. Where necessary, the Licensor is entitled to delete the infringing content without prior notice. Furthermore, the Licensee shall indemnify the Licensor against any third-party claims resulting from the infringement, reimburse the Licensor for reasonable legal defence costs and provide the Licensor with all information, documents and declarations required for the legal defence.

9.2. The Licensor is entitled to delete stored configurators that have not been activated for Customers, including the associated Licensee Content, after two years. The Licensor will announce this in text form at least two weeks in advance.

10. Updates

The Licensor is entitled, but not obliged, to install updates of the Software. The Licensor is entitled to adapt and change the range of services of the Software to technical progress, provided that the agreed functionalities are not significantly impaired. The Licensor does not have to ensure possible backward compatibility with third-party software that does not correspond to the respective current version and/or possible interoperability with third-party software. This only applies otherwise if such interoperability has been expressly agreed as a characteristic. Warranty claims remain unaffected. For updates of the On-Premises Solution hosted by the Licensee, the Licensee must provide the corresponding 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 itself responsible for adequate data backup. The Licensor is not liable for data loss (e.g. of entered product data) that could have been prevented by the Licensee's own appropriate backup.

11.2. Insofar as the Licensor is responsible for data loss, liability is limited to the typical recovery effort that would have been incurred if backup copies had been made regularly in accordance with the state of the art. The limitation of liability pursuant to 17. remains unaffected.

12. Onboarding, maintenance and support

12.1. The Licensor will support the Licensee with 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 are covered by the set-up fee pursuant to 15.2. (“Included Support”). The Licensor will invoice further services at the hourly rate stated in 2.4. This also applies insofar as the Licensee makes use of onboarding services before booking a paid service. In the event of a subsequent booking, these will be credited against the set-up 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.

12.4. Insofar as Included Support has been agreed, there is no entitlement to it where malfunctions were caused by the circumstances stated under 8.1.4, 8.1.5 or 8.1.6, in particular in cases of improper operation by the Licensee. The Licensee retains the option of making use of paid support services pursuant to 12.3.

12.5. The Licensee shall report malfunctions and downtimes not caused by maintenance work without delay via the Communication Channels and shall ensure that it provides the following information:
12.5.1. description, date and time of the malfunction,
12.5.2. affected functionality,
12.5.3. provisional classification of the priority pursuant to 12.7,
12.5.4. measures it has already taken to resolve the incident.

12.6. At the Licensor's request, the Licensee shall provide any further support and information required to resolve the malfunction. The provision under 2.5 applies accordingly.

12.7. For malfunctions, insofar as the Licensee has reported them pursuant to 12.5, the following response times apply:

12.8. If a reasonable workaround is available or provided by the Licensor, the malfunction is deemed to be one of priority level 4.

12.9. If, in the Licensor's opinion, the Licensee's classification of the priority is incorrect, the Licensor shall decide on the priority level at its reasonable discretion (Section 315 of the German Civil Code (BGB)).

12.10. The Licensor will begin processing the malfunction within the applicable response times. Times outside the Service Hours do not count as response times.

12.11. The Licensor is not obliged to resolve the malfunction within the response times, but will use its best efforts to resolve malfunctions as quickly as possible and will regularly inform the Licensee about the progress of the troubleshooting.

13. Services and work performance

13.1. Insofar as the Licensee commissions individual development services from the Licensor, these are services (Dienstleistungen), unless the provision of work performance (Werkleistungen) has been expressly agreed.

13.2. Agreed completion dates are non-binding unless otherwise agreed in writing.

13.3. Unless otherwise agreed, remuneration is based on the hourly rate stated in 2.4. Alternatively, the parties may agree on a fixed price.

13.4. If the parties have agreed on certain specifications, they may propose changes at any time (“Change Request”). In the event of a Change Request by the Licensee, the Licensor will check within a reasonable period whether it can implement the change. Unless the parties agree otherwise, the hourly rate stated in 2.4 applies. This also applies if a fixed price was agreed for the originally owed service. Any agreed completion dates are postponed by a reasonable period.

13.5. If the parties have agreed on the provision of work performance, it shall be accepted in accordance with the following provisions:
13.5.1. Unless otherwise agreed, acceptance takes place after overall completion. If the Licensee does not object in text form within two weeks of receipt of the notice of completion in text form, a work is deemed to have been accepted. The productive use of work performance provided by the Licensor is deemed to be acceptance.
13.5.2. The Licensee may only refuse acceptance if contractually agreed and documented requirements have not been met and the Licensee names these unmet requirements in text form. In this case, the Licensor will fulfil the missing requirements and the Licensee will then accept the work. The Licensee may not refuse acceptance due to insignificant defects.
13.5.3. Where partial acceptances have been agreed, the overall performance is deemed to have been accepted with the last partial acceptance.
13.5.4. Warranty claims with regard to defects whose rectification the Licensee did not reserve in text form upon acceptance are excluded.

14. Contract term, renewal and end of contract

14.1. Productive Use is agreed for the term set out in the Order, for one month, 12 months or 36 months (“Initial Term”).

14.2. Unless otherwise agreed in the Order, the Agreement is extended in each case by a period corresponding to the Initial Term (“Renewal Period”) if it is not terminated by either party with one month's notice to the end of the Initial Term. This applies accordingly to the end of each Renewal Period.

14.3. If a test of certain functionalities has been agreed (outside of or in addition to the Trial Phase), the Licensor may block the function again after 30 days of use. A contract for the Trial Phase ends in accordance with the provision under 4.2.

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

14.5. Termination must be in writing.

14.6. 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 cease use immediately. Unless otherwise agreed, the Licensor will 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 ask the Licensor to export it against payment of the remuneration agreed in 2.4. By means of a declaration in text form, which must be received by the Licensor no later than one week before the end of the Transition Period, it may request an extension of the Transition Period by one month at a time. The agreed remuneration is payable for each extension of the Transition Period by one month.

15. Remuneration, price adjustment

15.1. The Licensee is obliged to pay the remuneration agreed in the Order. The remuneration for the Cloud Solution consists of a monthly payment, payable in advance in each case. The remuneration for the On-Premises Solution is a one-off payment, unless otherwise contractually agreed.

15.2. In addition to the remuneration pursuant to 15.1, the Licensee must pay the set-up fee agreed in the Order.

15.3. If the provision of the On-Premises Solution has been agreed, the Licensee must additionally 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.

15.4. If the volume of use pursuant to 7.2 is exceeded, the Licensee is obliged to pay the additional remuneration stipulated there. The remuneration for the increased volume is then deemed agreed for the remaining contract term.

15.5. All prices are net prices plus the applicable statutory VAT.

15.6. If the Licensee is in default with payment of the agreed remuneration in an amount corresponding to the sum of three current monthly fees for the provision and maintenance of the Software, the Licensor is entitled, in addition to the statutory consequences of default, to block the Software for the Licensee until the Licensee has made payment in full.

16. Warranty

16.1. The warranty is governed exclusively by this provision. The Licensor warrants that the services have the agreed quality. The agreed quality results exclusively from the Agreement and any agreed documentation. Any descriptions of the Software in offer documents, correspondence or manuals do not constitute agreements on quality. If a Trial Phase has been agreed, the agreed quality is also determined by the functionalities that the Licensee was able to test in this respect.

16.2. The Licensor's warranty does not apply to defects resulting from the fact that
16.2.1. the Licensee or its employees have used the Software improperly,
16.2.2. the Licensee has not performed acts of cooperation or has not performed them in time,
16.2.3. the Licensee's system environment or hardware is not suitable for using the Software,
16.2.4. third-party services not subcontracted by the Licensor or services of the Licensee's employees were used, or
16.2.5. the Licensee noticed defects during the Trial Phase and did not report them.

16.3. In the event of a defect, the Licensor has the right to remedy the defect twice before the Licensee can assert further statutory warranty claims. The Licensor must be given a reasonable period for remedy in each case. A reasonable period is at least four weeks.

16.4. The Licensor is not responsible for third-party software. The Licensor is only responsible for interoperability between the Software and the third-party software insofar as the provision of an interface has been agreed in writing and a defect concerns the functionalities of this interface.

16.5. If the Licensee asserts a defect and it turns out that there is no defect, the Licensor may charge the expenses it has incurred at the hourly rate stated in 2.4.

16.6. Warranty claims are excluded in the case of insignificant defects.

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

16.8. The following provisions additionally apply to the provision of the Cloud Solution:
16.8.1. The statutory warranty provisions apply, with the exception that the Licensor is not liable regardless of fault for damage that already existed when the Software was provided (Section 536a (1) BGB) and the Licensee's right to remedy defects itself is excluded (Section 536a (2) BGB).
16.8.2. The Licensee may not enforce a reduction by deducting it from the agreed remuneration. Corresponding claims for unjust enrichment or damages remain unaffected.
16.8.3. The Licensee is obliged to notify the Licensor of defects in the Software without delay in text form, in a manner that enables the Licensor to reproduce the defect. The Licensor is not responsible for any damage incurred by the Licensee because it reported a defect late.

16.9. If the parties have agreed on the provision of work performance, the following provisions additionally apply:
16.9.1. The Licensee must inspect completed services for any defects without delay after completion of a project phase. Warranty claims are excluded insofar as the Licensee has not reported a defect in text form within two weeks of completion of the project phase. If a Trial Phase has been agreed, defects must be reported by the end of the Trial Phase. This does not apply to defects that are not recognisable. The Licensee must report these within two weeks of becoming aware of them.
16.9.2. The Licensee may only remedy a defect itself or have it remedied by a third party if the Licensor has agreed to this in text form.
16.9.3. The Licensor has the right to choose whether to remedy a defect by repair or replacement delivery.

17. Liability

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

17.1. The exclusion of liability does not apply to damage caused by a 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 makes the proper performance of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may rely. However, liability is limited to the damage typical for the contract which each contracting party had to expect on the basis of the circumstances known to it at that time. With regard to this damage typical for the contract, the Licensor's liability for property damage and resulting further financial losses is limited to an amount of €50,000.00 per claim.

17.2. The exclusion of liability also does not apply to damage resulting from injury to life, body or health based on a negligent breach of duty by the Licensor or its legal representatives or vicarious agents.

17.3. The exclusion of liability does not apply to damage based on an intentional or grossly negligent breach of duty by the Licensor or its legal representatives or vicarious agents.

17.4. 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.

17.5. If the Licensor has given a guarantee for the quality of the Software, the content of this guarantee is not affected by the above limitation of liability.

17.6. Liability under the German Product Liability Act (Produkthaftungsgesetz) remains unaffected.

18. Force majeure

Neither party shall be liable for damage caused by force majeure (8.1.3). In cases of force majeure, the affected party is released from performance for the period during which it is prevented from performing by the force majeure. The affected party will notify the other party of the occurrence and cessation of the force majeure and will use its best efforts to keep the effects to a minimum.

19. 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, become time-barred after one year, regardless of whether they are contractual or statutory claims. The start of the limitation period is governed by the statutory provisions. The limitation period does 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 German Product Liability Act, (vi) fraudulent concealment of a defect and (vii) defects to which Section 438 (2) No. 1 a) BGB applies. The Licensee's right to subsequent performance remains unaffected during the term of this Agreement.

20. Audit right

The Licensor is permitted to check the contractual use of the Software at any time by accessing the Software. The Licensor is also permitted to check the scope of use at the Licensee's premises. The Licensee must grant the Licensor access to all facilities and to all hardware and software whose inspection is relevant for compliance with the scope of the licence. The inspection at the Licensee's premises must be announced in good time in text form, unless there is an urgent suspicion that the scope of the licence has been exceeded.

21. Confidentiality, reference

21.1. Each party shall maintain confidentiality regarding all confidential information disclosed to it by the other party, shall not use it for purposes other than the fulfilment of the Agreement and shall not pass it on to third parties or make it accessible 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 of which the Receiving Party has otherwise become aware, provided that (i) it has commercial value, (ii) there is a legitimate interest in keeping it confidential and (iii) it is either marked as confidential or its confidential nature results from the nature of the information or the circumstances of the disclosure.

21.2. The parties are entitled to pass on confidential information to employees and affiliated companies, insofar as these 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.

21.3. Confidential information pursuant to 21.1 does not include information which the Receiving Party proves
21.3.1. is generally known or readily accessible to persons in the circles that normally deal with this type of information,
21.3.2. becomes generally known or readily accessible to persons in the circles that normally deal with this type of information after disclosure by the Disclosing Party, without this being attributable to an act or a breach-of-duty omission by the Receiving Party;
21.3.3. the Disclosing Party has waived its protection in writing;
21.3.4. it received in a way other than through cooperation with the Disclosing Party, without being subject to a confidentiality obligation;
21.3.5. it developed independently of the Disclosing Party's confidential information;
21.3.6. it obtained by observing, examining, reverse engineering or testing a product or object that has been made publicly available, whereby any protection under copyright law remains unaffected.

21.4. In the event of disclosure on the basis of an official or judicial order or a statutory obligation, the other party must be informed prior to disclosure, insofar as and as soon as this is permissible. The parties will support each other in preventing the disclosure, insofar as legally possible.

21.5. The Licensor is entitled to name the Licensee as a reference customer. This includes, among other things, naming the Licensee without any further consent being required and publishing a success story, the content of which is to be agreed with the Licensee.

21.6. Further obligations under data protection law remain unaffected.

21.7. This confidentiality obligation applies 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 permanently remain unaffected.

22. Data protection

22.1. The parties undertake to comply with the applicable data protection provisions.

22.2. The parties are aware that the storage of the Licensee's personal data on the Licensor's hardware constitutes processing on behalf pursuant to Art. 28 GDPR. The parties have therefore concluded the data processing agreement attached as an Annex.

23. 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 will not offer or provide any services via 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 contrary to the provisions of Export Laws, (ii) use it for a purpose prohibited by Export Laws or (iii) provide services to persons/entities not authorised to use it. The Licensor is entitled, but not obliged, to carry out necessary checks of the Export Laws, and the Licensee will provide the Licensor with all necessary information without delay upon request. The Licensee undertakes to indemnify the Licensor against all claims, lawsuits, claims for damages, fines and costs related in any way to the Licensee's non-compliance with Export Laws.

24. Final provisions

24.1. The Licensee is not entitled to transfer the Agreement or rights arising from it 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.

24.2. The Licensee may only set off against claims of the Licensor with undisputed or legally established counterclaims. The same applies to the assertion of a right of retention by the Licensee.

24.3. Amendments to the Agreement must be made in writing. This also applies to any amendment of this written form requirement.

24.4. The Licensee's general terms and conditions shall not become part of the contract, even if they have not been expressly objected to in individual cases.

24.5. Should any provision of the 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 gap.

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

24.7. If the Licensee is a merchant within the meaning of the German Commercial Code (HGB) or a special fund under public law, the exclusive place of jurisdiction is Ulm.