Terms of use and license conditions

 

§ 1 Validity of the contractual conditions

(1) For the sale of standard software of TEDATA GmbH, Königsallee 45, 44789 Bochum ("TEDATA") as a purchase or rental license, for agreed services and for pre-contractual obligations, these Terms and Conditions of Use and License shall apply exclusively in commercial transactions, unless otherwise agreed. This also applies in particular to products marketed under the "MDESIGN" trademark. In addition, the General Terms and Conditions of TEDATA shall apply in the version available at www.mdesign.de/agb at the time of submission of the Purchaser's declaration, unless the contracting parties agree otherwise in writing. Other contractual terms and conditions shall not become part of the contract, even if TEDATA does not expressly object to them.

(2) The contract shall only be concluded with entrepreneurs. With the exception of §§ 3, 4 and 7, the statutory provisions shall apply to any contracts with consumers.

(3) For the delivery of standard software, §§ 433 ff. BGB APPLY ADDITIONALLY. For supplementary services (e.g. installation, parameterization, training), §§ 611 ff. BGB APPLY ADDITIONALLY. For rental services, §§ 535 BGB shall apply.

 

§ 2 Conclusion of contract

(1) TEDATA's offers are subject to change and non-binding, unless the offer is designated as binding in writing. A legal obligation shall only come into existence through a contract signed by both parties or through written order confirmation by TEDATA, and also through TEDATA commencing the provision of services after the order has been placed. TEDATA may demand written confirmation of verbal contractual declarations by the purchaser.

(2) The customer shall be bound to his declarations on the conclusion of contracts for four weeks.

(3) Separate contracts shall be concluded for deliveries and services of other types (e.g. hardware delivery, software maintenance, installation and parameterization of the software, training).

 

§ 3 Subject matter of the contract, scope of services

(1) The subject of these contractual terms and conditions is only the provision of standard software and the granting of rights of use in accordance with § 4, as well as the services ordered.

(2) Before concluding the contract, the customer has checked that the specification of the software meets his wishes and requirements. He is aware of the essential functional features and conditions of the software.

(3) The scope, type and quality of the deliveries and services shall be determined by the contract signed by both parties or TEDATA's order confirmation, otherwise by TEDATA's offer. Other specifications or requirements shall only become part of the contract if the contracting parties have agreed this in writing or TEDATA has confirmed them in writing. Subsequent changes to the scope of services require written agreement or written confirmation by TEDATA.

(4) Product descriptions, illustrations, test programs, etc. are performance descriptions, but not guarantees. A guarantee requires a written declaration by the management of TEDATA.

(5) The customer shall receive access to the software and the user manual. The method of delivery of the software shall be as agreed; in the absence of any other agreement, the program and manual shall be made available online. The customer has no claim to the provision of the source program.

(6) The software can be provided in different ways (embodied software transfer, download, online or cloud solution). Unless otherwise agreed, the following provisions shall apply:

a) Embodied software/download software: The software shall be provided at TEDATA's discretion on a data carrier or for download, either permanently or for a limited period of time.

b) Online or cloud solution: This is the provision of the use of the software via the Internet and the provision of storage space on the provider's servers for a fee and for a limited period of time for the duration of the contract. The special provisions for online or cloud services in Annex 1 shall apply here, supplemented by the following provisions.

(7) Services are not part of the user relationship unless they are expressly included.

 

§ 4 Rights of the Customer to the Software

(1) The software (program and user manual) is legally protected. Copyrights, patent rights, trademark rights and all other property rights to the software and other items that TEDATA provides or makes accessible to the Buyer in the context of the initiation and execution of the contract shall be the exclusive property of TEDATA in the relationship between the contracting parties. Insofar as third parties are entitled to the rights, TEDATA has corresponding exploitation rights.

(2) The purchaser shall receive simple, i.e. non-sublicensable and non-transferable rights to use the software for the contractually agreed number of single-user or network access authorizations for the delivered version of the software, limited in time to the duration of the contract. Use of the Software via a server solution (e.g. CITRIX) requires the express consent of TEDATA and a corresponding network license. Circumvention of the single user authorization is not permitted.

(3) The customer is only entitled to process its own data with the program in its own company for its own purposes. Further contractual rules of use (e.g. the restriction to a number of workstations or persons) must be set up technically and complied with in practice. TEDATA hereby grants the Buyer the necessary authorizations for this use as a simple right of use, including the right to correct errors. Section 13 applies to the duration of the right of use.

(4) The customer is not entitled to pass on the software or the access authorization to a third party.

(5) The Buyer may only decompile the interface information of the programs within the limits of § 69 e UrhG and only if it has informed TEDATA in writing of its intention and requested the provision of the necessary interface information within a period of at least two weeks. Section 14 shall apply to all knowledge and information that the Buyer obtains about the software in the course of decompiling. Before any involvement of third parties, the Buyer shall provide TEDATA with a written declaration from the third party that the third party undertakes directly to TEDATA to comply with the rules set out in Sections 4 and 14.

(6) All other acts of exploitation, in particular the rental, lending and distribution in physical or non-physical form, the use of the software by and for third parties (e.g. through outsourcing, computer center activities, application service providing) are not permitted without the prior written consent of TEDATA.

(7) Contractual objects, documents, proposals, test programs, etc. of TEDATA that become accessible to the Buyer before or after conclusion of the contract shall be deemed intellectual property and business and trade secrets of TEDATA. They may not be used in any way whatsoever without the written permission of TEDATA and must be kept secret in accordance with § 14.

 

§ 5 Time of performance, delays, place of performance

(1) Details of delivery and performance dates are non-binding unless they are designated as binding by TEDATA in writing. TEDATA may render partial services insofar as the delivered parts are reasonably usable for the Buyer.

(2) Delivery and performance periods shall be extended by the period in which the purchaser is in default of payment under the contract and by the period in which TEDATA is prevented from delivering or performing due to circumstances for which it is not responsible, and by a reasonable start-up period after the end of the impediment. These circumstances also include force majeure and labor disputes. Deadlines shall also be deemed to be extended by the period in which the purchaser fails to cooperate in breach of contract, e.g. fails to provide information, fails to provide access, fails to provide materials or fails to make employees available.

(3) If the contracting parties subsequently agree other or additional services which affect the agreed deadlines, these deadlines shall be extended by a reasonable period of time.

(4) Reminders and deadlines set by the customer must be in writing to be effective. A grace period must be reasonable. A period of less than two weeks is only appropriate in cases of particular urgency.

(5) The place of performance is the place where the respective service is to be provided. Unless otherwise agreed, the place of performance for all services arising from and in connection with this contract is the registered office of TEDATA.

 

§ 6 Contract commitment and termination of contract

(1) Any termination of the further exchange of services (e.g. in the event of withdrawal, reduction, termination for good cause, damages in lieu of performance) must always be threatened by stating the reason and setting a reasonable deadline for rectification (usually at least two weeks) and can only be declared within two weeks of expiry of the deadline. In the cases stipulated by law (see Section 323 (2) BGB), the deadline may be waived. Anyone who is wholly or mainly responsible for the disruption cannot demand rescission.

(2) All declarations in this context must be made in writing to be effective.

 

§ 7 Remuneration, payment

(1) Unless otherwise agreed, the agreed remuneration shall be due without deduction and payable within 14 days after provision of the software and receipt of the invoice by the customer.

(2) Travel costs, expenses, accessories, shipping costs and telecommunication costs shall be reimbursed additionally at cost. Additional services requested by the Buyer (e.g. consulting and support during program installation) shall be invoiced in accordance with TEDATA's current price list.

(3) Value added tax is added to all prices.

(4) The Buyer may only offset claims recognized by TEDATA or legally established claims. Except within the scope of § 354 a of the German Commercial Code (HGB), the Buyer may only assign claims arising from this contract to third parties with the prior written consent of TEDATA. The purchaser is only entitled to a right of retention or the defense of non-performance of the contract within this contractual relationship.

 

§ 8 Obligations of the customer

(1) The Buyer is obliged to examine all contractual items of TEDATA immediately upon delivery or upon making them available in accordance with the provisions of commercial law (§ 377 HGB) and to notify TEDATA in writing of any defects detected, giving a precise description of the defect. The purchaser shall test each module thoroughly for usability in the specific situation before commencing productive use. This also applies to programs that the customer receives within the scope of the warranty and a maintenance contract.

(2) The customer shall take appropriate precautions in the event that the program does not work properly in whole or in part (e.g. through data backup, documentation of software use, fault diagnosis, regular testing of results, emergency planning). It is the customer's responsibility to ensure the functionality of the program's working environment.

 

§ 9 Material defects

(1) The software has the agreed quality at the time of the transfer of risk and is suitable for the contractually stipulated use or, in the absence of an agreement, for normal use. It satisfies the criterion of practical suitability and has the usual quality for software of this type; however, it is not error-free. A functional impairment of the program resulting from hardware defects, environmental conditions, incorrect operation or similar is not a defect. An insignificant reduction in quality shall not be taken into account.

(2) In the event of material defects, TEDATA may first provide subsequent performance. Subsequent performance shall be effected at TEDATA's discretion by remedying the defect, by providing software that does not have the defect, or by TEDATA demonstrating ways of avoiding the effects of the defect. At least three attempts to rectify a defect must be accepted. An equivalent new program version or the equivalent previous program version without the defect is to be accepted by the purchaser if this is reasonable for him. The installation of software (patches or new versions) is the responsibility of the customer.

(3) The Buyer shall support TEDATA in analyzing errors and remedying defects, in particular by specifically describing any problems that arise, providing TEDATA with comprehensive information and granting TEDATA the time and opportunity required to remedy the defect. TEDATA may, at its discretion, remedy the defect on site or at its business premises. TEDATA may also provide services by remote maintenance. The Buyer shall provide the necessary technical requirements at its own expense and grant TEDATA electronic access to the software after prior notification.

(4) Errors shall be rectified within a reasonable period of time for TEDATA's normal business activities and operational resources. The temporary elimination of defects through workaround solutions is reasonable. Minor or merely temporary restrictions or difficulties are acceptable. Defects that do not prevent operation can be remedied with a new program version.

(5) Updates or extensions are not owed. The delivery of a new program version replaces the delivered version, insofar as it is accepted by the customer through updating. The restoration of old versions is then no longer owed. Insofar as the functionality goes beyond the contractually agreed scope, the customer shall not be entitled to any warranty rights to these voluntarily provided functions.

(6) TEDATA may demand compensation for additional expenses resulting from the fact that the software has been modified, used outside the specified environment or operated incorrectly. It may demand reimbursement of expenses if no defect is found and the purchaser did not raise the complaint without negligence. The burden of proof lies with the customer. § Section 254 BGB shall apply accordingly.

(7) If TEDATA finally refuses subsequent performance or if this finally fails or is unreasonable for the Buyer, the Buyer may either withdraw from the contract within the scope of § 6 or reduce the remuneration appropriately and additionally demand compensation for damages or reimbursement of expenses in accordance with § 11. The claims shall become time-barred in accordance with § 12.

 

§ 10 Defects of title

(1) TEDATA warrants that the contractual use of the software by the Buyer does not conflict with any third-party rights. In the event of defects of title, TEDATA warrants that it shall, at its discretion, provide the Buyer with a legally unobjectionable option to use the software or equivalent software.

(2) The Buyer shall inform TEDATA immediately in writing if third parties assert property rights (e.g. copyrights or patent rights) to the software. TEDATA shall support the Buyer in its defense against attacks by third parties by providing advice and information.

(3) Section 9 (2), (6) and (7) shall apply accordingly.

 

§ 11 Liability

(1) TEDATA shall pay damages or compensation for futile expenses, regardless of the legal grounds (e.g. from legal and similar obligations, material defects and defects of title, breach of duty and tort), only to the following extent:

a) Liability for intent, fraudulent intent and under guarantee is unlimited.

b) In the event of gross negligence, TEDATA shall be liable in the amount of the typical damage foreseeable at the time the contract was concluded.

c) In the event of a simple negligent breach of a cardinal obligation (obligation whose fulfillment is essential for the proper execution of the contract, on whose compliance the contractual partner regularly relies and may rely and whose breach jeopardizes the achievement of the purpose of the contract), TEDATA shall be liable in the amount of the typical damage foreseeable at the time of conclusion of the contract.

(2) TEDATA reserves the right to object to contributory negligence. In particular, the purchaser is obliged to back up data and to defend against malware in accordance with the current state of the art.

(3) In the event of injury to life, limb and health and in the event of claims under the Product Liability Act, the statutory provisions shall apply without restriction.

 

§ 12 Statute of limitations

(1) The limitation period shall be

a) in the case of material defects for claims for repayment of the purchase price from withdrawal or reduction one year from provision of the software, but for duly notified defects not less than three months from submission of the effective declaration of withdrawal or reduction;

b) one year for other claims arising from material defects;

c) two years for claims arising from defects of title, if the defect of title does not lie in a right of a third party on the basis of which the third party can demand the return of the items specified in § 3 or demand that they cease to be used;

d) in the case of claims for damages or compensation for futile expenditure not based on material defects or defects of title, two years; the period begins at the time at which the customer became aware of the circumstances giving rise to the claim or should have become aware of them without gross negligence.

(2) The limitation period shall commence at the latest upon expiry of the maximum periods specified in § 199 BGB. Paragraph 1 shall not apply to compensation for damages and expenses arising from intent, gross negligence, warranty, fraudulent intent and in the cases specified in § 11 (3).

 

§ 13 Beginning and end of the customer's rights

(1) Ownership of the delivered goods and the rights pursuant to § 4 shall not pass to the customer until the contractual remuneration has been paid in full. Prior to this, he shall only have a provisional right of use which is only subject to the law of obligations and can be revoked in accordance with paragraph 2.

(2) TEDATA may terminate the rights under § 4 for good cause under the conditions of § 6. Good cause shall be deemed to exist if, taking into account all circumstances of the individual case and weighing up the interests of both parties, TEDATA cannot reasonably be expected to allow the Software to remain with the Buyer in the long term, in particular if the Buyer is in material breach of § 4.

(3) If the rights under § 4 do not arise or if they end, TEDATA may demand the return of the contractual items provided or written assurance that they have been destroyed, as well as the deletion or destruction of all copies of the contractual items and written assurance that this has been done.

(4) The right of use is dependent on the existence of this contract. In all other respects, it shall be permanent unless the parties have agreed otherwise. However, the right of use relates only to the version provided. There is no obligation to update or guarantee operability.

 

§ 14 Confidentiality and data protection

(1) The contracting parties undertake to treat confidentially all items (e.g. software, documents, information) which they receive or become aware of from the other contracting party before or during the execution of the contract and which are legally protected or contain business or trade secrets or are designated as confidential, even after the end of the contract, unless they are publicly known without breach of the confidentiality obligation. The contracting parties shall store and secure these items in such a way that access by third parties is excluded.

(2) The customer shall only make the items accessible to employees and other third parties who require access to perform their official duties. He shall instruct these persons about the confidentiality of the items.

(3) TEDATA shall process the Purchaser's data required for business transactions in compliance with data protection regulations. TEDATA may name the purchaser as a reference customer after successful provision of the services.

 

§ 15 Conclusion

(1) Amendments and additions to the contract must be made in writing to be effective. The written form requirement can only be waived in writing. Transmission in text form, in particular by fax or e-mail, is also sufficient to comply with the written form requirement.

(2) The law of the Federal Republic of Germany shall apply to the exclusion of the conflict of laws and the UN Convention on Contracts for the International Sale of Goods. The place of performance and jurisdiction for all disputes arising from and in connection with this contract shall be the registered office of TEDATA for contracts with merchants.

 

Appendix 1:

Special provisions for online or cloud solutions

Online or cloud solutions contain elements of rental agreements that take precedence over the following special provisions.

 

§ 1 Services of TEDATA; software and storage space

(1) TEDATA grants the Purchaser the use of the respective retrievable version of the Software for the agreed number of authorized users via the Internet depending on the selected package

a) by means of access through a browser or

b) via a cloud solution of TEDATA's choice (e.g. Amazon AppStream).

(2) TEDATA warrants the functionality and availability of the Software for the duration of the contractual relationship and shall maintain it in a condition suitable for use in accordance with the contract.

(3) After conclusion of the contract, TEDATA shall send the Purchaser the respective unique user access data for the corresponding number of authorized users in electronic form.

(4) The user documentation can be viewed while using the software.

(5) TEDATA may update and further develop the Software at any time and, in particular, adapt it due to a change in the legal situation, technical developments or to improve IT security. In doing so, TEDATA shall take the legitimate interests of the Buyer into reasonable consideration. However, there is no obligation to do so. In the event of a significant impairment of the purchaser's legitimate interests, the purchaser shall have a special right of termination.

(6) TEDATA shall not be responsible for customization to the individual needs or IT environment of the Buyer, unless the parties have agreed otherwise.

(7) TEDATA shall carry out regular maintenance on the Software and inform the Buyer of this in good time. Maintenance shall be carried out regularly outside the purchaser's normal business hours, unless maintenance must be carried out at a different time for compelling reasons.

(8) TEDATA shall provide the Buyer with storage space on its servers for the storage of data and for the purpose of using the Software up to the usual scope of a single user license. TEDATA shall ensure that the data can be retrieved within the scope of the use of the software.

(9) TEDATA shall have no duty of safekeeping or care with regard to the stored data. The purchaser is solely responsible for adequate backup.

(10) The purchaser shall remain the owner of the data stored on TEDATA's servers.

 

§ 2 Scope and rights of use

(1) The software shall not be physically transferred to the customer.

(2) The customer shall receive simple, i.e. non-sublicensable and non-transferable rights, limited in time to the duration of the contract, to use the software by means of access via a browser in accordance with the following provisions for the respective retrievable version of the software for the contractually agreed number of users. The licenses are granted on a personalized basis to the extent agreed. If it is necessary to change a user name within the scope of the agreed licenses, the Buyer shall notify TEDATA of this. Use of the software via a server solution (e.g. CITRIX) requires the express consent of TEDATA and a corresponding network license. Circumvention of the single-user license is not permitted.

(3) The customer may only use the software within the scope of its own business activities by its own personnel. The customer is not permitted to use the software for any other purpose.

 

§ 3 Support and services

TEDATA will set up a support service for customers for inquiries about software functions. This can also be done via a service provider. Inquiries can be made via the support hotline provided on the TEDATA website or by e-mail. Inquiries will be processed in the order in which they are received.

 

§ 4 Service levels; troubleshooting

(1) TEDATA guarantees an overall availability of the services of at least 99% per month at the transfer point. The delivery point is the router output of the TEDATA data center.

(2) Availability is deemed to be the ability of the customer to use all main functions of the software. Maintenance times as well as times of malfunction with observance of the rectification time shall be considered times of availability of the software. Times of insignificant malfunctions shall not be taken into account when calculating availability. TEDATA's measuring instruments in the data center shall be decisive for the duration of availability.

(3) The customer must report and provide evidence of faults immediately. Fault reporting and rectification is guaranteed Monday to Thursday (excluding national holidays) from 8:00 a.m. to 12:30 p.m. (CET/MEZ) and from 1:30 p.m. to 5:00 p.m. (CET/MEZ) and on Friday (excluding national holidays) from 8:00 a.m. to 12:30 p.m. (CET/MEZ) (service hours).

(4) TEDATA shall remedy serious faults (the use of the software as a whole or a main function of the software is not possible) as soon as possible after receipt of the notification of the fault - provided that the notification is made within the service hours (rectification time). If it is foreseeable that it will not be possible to rectify the fault in the short term, it will inform the purchaser of this immediately and provide the expected rectification time.

(5) Other significant faults (main or secondary functions of the software are disrupted but can be used; or other not merely insignificant faults) shall be rectified within a reasonable period of time within the normal course of business and operational resources (rectification time).

(6) The elimination of insignificant faults is at the discretion of TEDATA.

(7) TEDATA shall only be liable for non-compliance with system availability if TEDATA is responsible for the non-compliance. In particular, TEDATA shall not be liable for

a) Failures for which TEDATA is not directly responsible, in particular external DNS and routing problems, attacks on TEDATA's network infrastructure (DDoS/viruses) and failures of parts of the Internet outside TEDATA's control which may lead to incorrect measurements.

b) Failures that are due to the fact that the customer's own applications have been used improperly or systems do not comply with the guidelines.

c) Failures that were falsely reported to the customer due to errors in internal or external monitoring.

d) failures caused by factors beyond TEDATA's reasonable control, including a force majeure event or Internet access problems and similar problems beyond the scope of the products and services included.

e) failures caused by the Buyer's equipment, software or other technology and/or the equipment, software or other technology of a third party (other than third party equipment within the control of TEDATA).

(8) If the guaranteed system availability is not complied with, TEDATA shall grant the customer a credit note upon notification of the shortfall in availability. This credit note can generally only be applied for after the end of the month affected by the non-compliance. The date of the postmark or e-mail receipt is decisive for timely receipt. The credit note is calculated as follows:

Guaranteed monthly average value	99%	Credit in relation to the monthly fixed costs
Availability	<99%	10%
	<90%	20%
	<80%	50%

 

§ 5 Obligations of the customer

(1) The customer shall protect and store the access data transmitted to it against access by third parties in accordance with the state of the art. The purchaser shall ensure that the data is only used within the contractually agreed scope. Unauthorized access must be reported to TEDATA immediately.

(2) The customer is obliged not to store any data on the storage space provided whose use violates applicable law, official orders, third-party rights or agreements with third parties.

(3) The Customer shall check the data for viruses or other harmful components before storing or using them in the software and shall use state-of-the-art measures (e.g. virus protection programs) for this purpose.

(4) The customer shall be responsible for making appropriate data backups on a regular basis.

 

§ 6 Remuneration and payment conditions

(1) The Buyer shall pay the agreed fee to TEDATA on a monthly basis.

(2) The monthly fee to be paid shall be adjusted in the event of changes in the number of users or the volume of storage space.

(3) Invoices shall be issued at the beginning of the usage period. The invoice is due for payment within 14 days.

 

§ 7 Contract term and termination

(1) The contract shall run for the agreed duration. If this has not been agreed, it shall commence upon transmission of the access data by TEDATA and shall be concluded for an indefinite period. The minimum contract term is then 3 months.

(2) The contract can be terminated by either party with a notice period of 1 month to the end of the month.

(3) The right to terminate the contract without notice for good cause remains unaffected. Termination must be in writing in all cases.

(4) TEDATA shall provide reasonable support to the Buyer at its own expense in retransferring or backing up the data after termination of the contract.

(5) TEDATA shall irrecoverably delete all data of the Buyer remaining on its servers 30 days after termination of the contractual relationship. There shall be no right of retention or lien on the data in favor of TEDATA.

 

§ 8 Force majeure

(1) If a force majeure event results in TEDATA not being able to fulfill its obligations, or not being able to fulfill them in full or on time, it shall notify the Buyer immediately of the nature of the event and the likely impact on its contractual obligations, in particular on the provision of the contractual services.

(2) TEDATA shall be released from the fulfillment of its contractual obligations for the duration of the force majeure event. The Buyer's obligation to counter-performance shall lapse accordingly. After the end of the force majeure event, TEDATA shall immediately notify the Buyer thereof and resume performance of its contractual obligations. Accordingly, the obligation to provide counter-performance shall immediately be revived.

 

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