§ 1 Validity of the contractual conditions
- For the sale of standard software, for services agreed within the framework of the purchase contract, for contracts for maintenance services, for contracts for a software project, for pre-contractual obligations as well as for all contractual relationships to be entered into by us, according to which we have to provide services of whatever kind, these General Terms and Conditions of Contract shall apply exclusively in business dealings, unless otherwise agreed. Other contractual conditions shall not become part of the contract, even if we do not expressly object to them.
- Even if no further reference is made to this when concluding similar contracts, our General Terms and Conditions of Contract shall apply exclusively in the version available on our homepage (enter exact designation) at the time of submission of the Purchaser's declaration, unless the contracting parties agree otherwise in writing.
- In the case of contracts with consumers, only §§ 3, 4, 7 paras. 1-3 and 14 shall apply; in all other respects, the statutory rules shall apply.
- The delivery of standard software is subject to §§ 433 ff. BGB (GERMAN CIVIL CODE). For supplementary services (e.g. installation, parameterisation, training, maintenance) §§ 611 ff. BGB.
§ 2 Conclusion of contract
- Offers made by MEXS GmbH shall be subject to change and non-binding unless the offer is designated as binding in writing. A legal commitment shall only come about through a contract signed by both parties or through written confirmation of the order by MEXS GmbH, and also through MEXS GmbH commencing performance in accordance with the contract after the order has been placed. MEXS GmbH may demand written confirmation of oral contractual declarations by the customer.
- The Purchaser shall be bound by declarations on the conclusion of contracts (contract offers) for 4 weeks.
- Separate contracts shall be concluded for deliveries and services of other types (e.g. software maintenance, hardware delivery, setup and installation of the software). For a period of 3 months from the contract on the purchase of the software, MEXS GmbH shall be obliged to conclude a contract on other services (e.g. installation, parameterisation, training) and a contract on software maintenance at the currently applicable conditions at the request of the customer. In all other respects, both contracting parties shall be free to conclude such contracts.
§ 3 Subject matter of the contract, scope of services
- The subject of these contractual conditions is only the delivery of standard software and the granting of the rights of use according to § 4, as well as the services ordered at the time of purchase, e.g. training according to § 15 or maintenance.
- Prior to the conclusion of the contract, the Purchaser has verified that the specification of the software corresponds to his wishes and needs. He is aware of the essential functional features and conditions of the software.
- The scope, type and quality of the deliveries and services shall be determined by the contract signed by both parties or the order confirmation of MEXS GmbH, otherwise by the offer of MEXS GmbH. Other details or requirements shall only become part of the contract if the contracting parties so agree in writing or MEXS GmbH has confirmed them in writing. Subsequent changes to the scope of services shall require written agreement or written confirmation by MEXS GmbH.
- Product descriptions, representations, test programmes etc. are descriptions of performance, but not guarantees. A guarantee requires a written declaration by the management of MEXS GmbH.
- The Purchaser shall receive the software consisting of the programme and the performance description. The method of delivery of the software shall be in accordance with the agreements; in the absence of other agreements, the programme and manual shall be delivered on CD-Rom. The Purchaser shall not be entitled to be provided with the source code.
- MEXS GmbH shall provide all deliveries and services in accordance with the state of the art.
§ 4 Rights of the Purchaser to the Software
- The software (programme and description) is legally protected. Copyright, patent rights, trademark rights and all other ancillary copyrights to the software as well as to other items which MEXS GmbH provides or makes accessible to the customer within the scope of contract initiation and implementation shall be the exclusive property of MEXS GmbH in the relationship between the contracting parties. Insofar as third parties are entitled to the rights, MEXS GmbH shall have corresponding exploitation rights.
- The customer is only entitled to process his own data with the programme himself in his own business for his own purposes or to use the programme for his own business purposes. All hardware on which the programmes are copied or taken over in whole or in part, for a short time or permanently, must be in the direct possession of the Purchaser. Further contractual rules of use (e.g. limitation to the number of workstations or persons) shall be technically set up and practically complied with. MEXS GmbH hereby grants the Purchaser the powers necessary for this use as a simple right of use including the right to rectify errors. Section 13 shall apply to the duration of the right of use.
- The Purchaser may make the backup copies of the programmes required for safe operation. The backup copies must be stored securely and, as far as technically possible, be provided with the copyright notice of the original data carrier. Copyright notices, trademarks and product labels must not be deleted, changed or suppressed. Copies that are no longer required must be deleted or destroyed. The product description and other documents provided by MEXS GmbH may only be copied for internal company purposes.
- The Purchaser is only entitled to pass on the software or parts thereof to a third party in accordance with the following rules and after carrying out the following procedures:
a) Only an original data carrier (cf. § 3 para. 5) may be passed on. Other software or the software in another state may not be passed on.
b) The Purchaser shall delete all other copies of the software (in whatever state), in particular on data carriers and in fixed or working memories. He shall definitively give up the use of the software. He undertakes to carry out these procedures before passing on the original data carrier to the third party and to confirm them in writing to MEXS GmbH without delay.
c) The transfer to the third party shall be permanent, i.e. without any claim for return or option of reacquisition.
d) The third party undertakes in writing directly vis-à-vis MEXS GmbH that he shall comply with Section 4, Section 13 subsections 2 and 3, Section 14 and Section 16 of these general terms and conditions of contract directly vis-à-vis MEXS GmbH.
e) The written consent of MEXS GmbH has been obtained. MEXS GmbH shall be obliged to give its consent if there are no important reasons (e.g. protection of competition) to the contrary. In the event of a breach of these rules by the customer, he shall owe MEXS GmbH a contractual penalty amounting to half the amount which the third party would have had to pay MEXS GmbH for the software according to the then current price list, at least to the amount of the purchase price agreed today.
- The rule according to para. 2, para. 3 and 4 d, e shall also apply if the Purchaser carries out error correction or (as far as permissible) other processing of the programs or uses the software for training purposes.
- The customer may only decompile the interface information of the programs within the limits of § 69 e UrhG (German Copyright Act) and only after he has informed MEXS GmbH in writing of his intention and requested the transfer of the necessary interface information with a period of notice of at least two weeks. Section 14 shall apply to all knowledge and information which the customer obtains about the software in the course of decompiling. Prior to any involvement of third parties, the customer shall provide MEXS GmbH with a written declaration by the third party that the latter undertakes directly towards MEXS GmbH to comply with the rules laid down in Sections 4 and 14.
- All other acts of exploitation, in particular the rental, lending and distribution in tangible or intangible form, used software by and for third parties (e.g. through outsourcing, computer centre activities, application service providing) shall not be permitted without the prior written consent of MEXS GmbH.
- Contractual items, documents, proposals, test programmes etc. of MEXS GmbH which become accessible to the customer before or after conclusion of the contract shall be regarded as intellectual property and as business and trade secrets of MEXS GmbH. They may not be used in the same way without the written permission of MEXS GmbH and must be kept secret in accordance with § 14.
§ 5 Time of performance, delays, place of performance
- Information on delivery and performance dates shall not be binding unless MEXS GmbH has designated them as binding in writing. MEXS GmbH shall be entitled to render partial services insofar as the delivered parts can be reasonably used by the customer.
- Delivery and performance deadlines shall be extended by the period in which the customer is in default of payment under the contract and by the period in which MEXS GmbH 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. Such circumstances shall also include force majeure and industrial action. Deadlines shall also be deemed to have been extended by the period during which the customer fails to perform an act of cooperation in breach of contract, e.g. fails to provide information, fails to provide access, fails to deliver an order or fails to make employees available.
- If the contracting parties subsequently agree on other or additional services that affect agreed deadlines, these deadlines shall be extended by a reasonable period of time.
- Reminders and setting of deadlines by the customer must be in writing to be effective. A period of grace must be reasonable. A period of less than 2 weeks shall only be reasonable in case of special urgency.
- The place of performance of services shall be the place where the service is to be rendered. For the rest, the place of performance for all services arising from and in connection with this contract shall be the registered office of MEXS GmbH. § Any termination of the further exchange of services (e.g. withdrawal, reduction, termination for good cause, compensation 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 may only be declared within two weeks of expiry of the deadline. In the cases provided for by law (cf. section 323 subs. 2 BGB) the setting of a time limit may be omitted. Anyone who is wholly or partly responsible for the disruption may not demand rescission. All declarations in this context must be made in writing to be effective.
§ 7 Remuneration, payment
- The agreed remuneration shall be due without deduction after delivery/installation of the software (in the case of training after the training has been carried out) and receipt of the invoice by the customer and shall be payable within 10 days. MEXS GmbH shall be entitled to demand a down payment of a maximum of 50% of the agreed remuneration upon conclusion of the contract.
- In the absence of any other agreement, the respective list of prices and conditions of MEXS GmbH, which can be accessed via the MEXS GmbH homepage, shall apply.
- Travel costs, expenses, accessories, shipping costs and telecommunication costs shall be additionally remunerated according to expenditure. Additional services requested by the customer (e.g. consulting and support during programme installation) shall be invoiced in accordance with the current price list of MEXS GmbH. However, a list price increase shall be limited to 3% per year.
- VAT is added to all prices.
- The ordering party may only offset claims that are undisputed by MEXS GmbH and have been legally established. Except in the area of § 354 a HGB (German Commercial Code), the ordering party may only assign claims arising from this contract to third parties with the prior written consent of MEXS GmbH. The Purchaser shall only be entitled to a right of retention or the defence of non-performance of the contract within this contractual relationship.
§ 8 Duties of the Purchaser
- The customer shall be obliged to have all delivery items of MEXS GmbH expertly inspected immediately upon delivery and upon making them available in accordance with the provisions of commercial law (§ 377 HGB) and to notify MEXS GmbH of any detected defects in writing with a precise description of the defect. The customer shall thoroughly test each module for usability in the specific situation. This shall also apply to programmes which the customer receives within the scope of the warranty and a maintenance contract.
- The Purchaser shall take appropriate precautions in the event that the programme does not work properly in whole or in part (e.g. through data backup, fault diagnosis, regular testing of results, emergency planning). It is his responsibility to ensure the operability of the programme's working environment.
§ 9 Material defects
- The software has the agreed quality and is suitable for the contractually presupposed use or, in the absence of an agreement, for normal use. It satisfies the criterion of practical suitability and has the quality customary for software of this type; however, it is not error-free. A functional impairment of the programme resulting from hardware defects, environmental conditions, operating errors or the like is not a defect. An insignificant reduction in quality shall not be taken into account.
- In the event of material defects, MEXS GmbH shall initially be entitled to subsequent performance. Subsequent performance shall be effected at the discretion of MEXS GmbH by remedying the defect, by supplying software which does not have the defect or by MEXS GmbH pointing out possibilities of avoiding the effects of the defect. At least three attempts to remedy a defect shall be accepted. An equivalent new programme version or the equivalent previous programme version without the defect shall be accepted by the ordering party if this is reasonable for him.
- The customer shall support MEXS GmbH in analysing faults and rectifying defects, in particular by describing problems that occur in concrete terms, informing MEXS GmbH comprehensively and granting MEXS GmbH the time and opportunity required to rectify defects. MEXS GmbH may choose to rectify the defect on site or at its business premises. MEXS GmbH may also provide services by remote maintenance. The customer shall provide the necessary technical prerequisites at his own expense and grant MEXS GmbH electronic access to the software after prior notification.
- The contractual partners agree on the following defect classes and response times:
a) Defect class 1: Defects preventing operation: The defect prevents business operations at the Purchaser. There is no workaround: MEXS GmbH shall start rectifying the fault as soon as possible, at the latest within 12 hours of the fault report, and shall continue to do so with vigour until the fault has been rectified, as far as reasonable also outside normal working hours (09.00 hrs to 17.00 hrs on weekdays).
b) Error class 2: Defects hindering operation: The error considerably hinders the business operations of the customer; however, the use of the software is possible with workarounds or with temporarily acceptable restrictions or difficulties: MEXS GmbH shall begin with the elimination of the error on the day after next in the event of an error message before 10 a.m., and at the beginning of the following working day in the event of a later error message and shall continue until the error has been eliminated within the usual working hours. MEXS GmbH may first show a workaround and eliminate the error later if this is reasonable for the customer.
c) Error class 3: Other defects: MEXS GmbH shall start eliminating the error within one week or shall eliminate the error only with the next programme version if this is reasonable for the customer.
- The time limit according to para. 4 shall commence with the defect report according to § 8 para. 1. For the calculation of the time limit, § 5 para. 2, 3 shall apply. In case of disagreement about the allocation of a defect to the classes according to para. 4, the orderer may demand the allocation to a higher defect class. He shall reimburse MEXS GmbH for the additional expense if he cannot prove that his classification was correct.
- MEXS GmbH may demand additional costs arising from the fact that the software was modified, used outside the specified environment or operated incorrectly. It may demand reimbursement of expenses if no defect is found and the customer did not raise the complaint without negligence. The burden of proof lies with the orderer. § Section 254 BGB shall apply accordingly.
- If MEXS GmbH finally refuses subsequent performance or if this finally fails or is unreasonable for the customer, the customer 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
- MEXS GmbH warrants that the contractual use of the software by the customer shall not conflict with any third-party rights. In the event of defects in title, MEXS GmbH shall provide a warranty in that it shall provide the customer with a legally unobjectionable opportunity to use the software or equivalent software at its discretion.
- The Purchaser shall inform MEXS GmbH immediately in writing if third parties assert property rights (e.g. copyrights or patent rights) to the software. The customer shall authorise MEXS GmbH to conduct the dispute with the third party alone. As long as MEXS GmbH makes use of this authorisation, the customer may not acknowledge the claims of the third party on his own initiative without the consent of MEXS GmbH; MEXS GmbH shall then defend the claims of the third party at its own expense and shall indemnify the customer against all costs associated with the defence against these claims, insofar as these are not based on conduct on the part of the customer in breach of duty (e.g. use of the programs in breach of contract).
- § 9 par. 2, 6, 7 shall apply accordingly.
§ 11 Liability
- MEXS GmbH shall pay damages or reimbursement of futile expenses, irrespective of the legal grounds (e.g. from contractual and quasi-contractual obligations, material and legal defects, breach of duty and tort), only to the following extent:
a) Liability in the event of intent and under guarantee is unlimited.
b) In the event of gross negligence, MEXS GmbH shall be liable to the amount of the typical damage foreseeable at the time the contract was concluded.
c) In the event of a breach of an obligation which is not grossly negligent and which is so essential that the achievement of the purpose of the contract is jeopardised (cardinal obligation; in particular default), MEXS GmbH shall be liable to the amount of the typical damage foreseeable at the time the contract was concluded, but not more than EUR 10,000.00 per case of damage and EUR 50,000.00 for all cases of damage arising from and in connection with the contract as a whole.
- MEXS GmbH shall have the right to object to contributory negligence. In particular, the Purchaser shall be obliged to back up data and prevent malware in accordance with the current state of the art.
- 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 limitation.
§ 12 Limitation
- The limitation period is
a) for claims for repayment of the purchase price arising from withdrawal or reduction, one year from delivery of the software, but for properly notified defects not less than three months from submission of the effective declaration of withdrawal or reduction;
b) for other claims arising from material defects, one year;
c) for claims arising from defects of title, two years 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 objects named in § 3 para. 5 or demand that they cease to be used;
d) in the case of claims for damages or reimbursement of futile expenses not based on material defects or defects of title, two years; the period shall commence at the time when the customer became aware of the circumstances giving rise to the claim or should have become aware of them without gross negligence.
e) The limitation period shall commence at the latest upon expiry of the maximum periods stipulated in § 199 of the German Civil Code (BGB). 2. However, in the case of damages and reimbursement of expenses arising from intent, gross negligence, warranty, fraudulent intent and in the cases specified in § 11 para. 2, the statutory limitation periods shall always apply.
§ 13 Commencement and end of the rights of the Purchaser
- Ownership of the delivered goods and the rights according to § 4 shall only pass to the customer upon full payment of the contractual remuneration. Prior to this, he shall only have a provisional right of use, which is only under the law of obligations and can be revoked in accordance with paragraph 2.
- MEXS GmbH may terminate the rights under § 4 for good cause under the conditions of § 6. Good cause shall be deemed to exist in particular if MEXS GmbH cannot reasonably be expected to continue to adhere to the contract, in particular if the customer fails to pay the remuneration or violates § 4 in a significant manner.
- If the rights under Section 4 do not arise or if they end, MEXS GmbH shall be entitled to demand from the customer the return of the items provided or a written assurance that they have been destroyed, and also the deletion or destruction of all copies of the items and a written assurance that this has been done.
§ 14 Confidentiality and data protection
- The contracting parties undertake to treat as confidential all items (e.g. software, documents, information) which they receive from the other contracting party or become aware of before and during the performance of the contract and which are protected by law or contain business or trade secrets or are designated as confidential, also beyond the end of the contract, unless they are in the public domain without any breach of the duty of confidentiality. The contractual partners shall keep and secure these rights in such a way that access by third parties is excluded.
- The customer shall only make the contractual items accessible to employees and other third parties who require access for the performance of their official duties. He shall instruct these persons about the need for secrecy of the objects.
- MEXS GmbH shall process the data of the ordering party required for the business transaction in compliance with the data protection regulations. MEXS GmbH may name the ordering party as a reference customer after successful completion of the services.
§ 15 Training
- Training shall take place at the customer's premises or at another location to be determined in consultation with the customer, at the discretion of MEXS GmbH. In the event of training at the customer's premises, the customer shall provide the appropriate premises and technical equipment after consultation with MEXS GmbH. In the case of training at another location, the customer shall rent the premises and provide the necessary hardware and software on site. In the case of training at MEXS GmbH, the latter shall provide the premises and the necessary hardware.
- MEXS GmbH may cancel a training date for good cause. MEXS GmbH shall notify the customer of the cancellation of a date in good time and offer alternative dates.
- In the event of justified dissatisfaction on the part of the customer, MEXS GmbH shall have the option to remedy the situation. Otherwise § 6 shall apply.
§ 16 Conclusion
- Amendments and supplements 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, shall also be sufficient to comply with the written form requirement.
- The law of the Federal Republic of Germany shall apply to the exclusion of 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 MEXS GmbH for contracts with merchants.
- Should any provision of these general terms and conditions of contract be or become invalid, the remaining provisions shall nevertheless be valid. The same shall apply if these General Terms and Conditions of Contract contain a loophole that needs to be regulated.
Balgheim, 28 April 2017 MEXS GmbH - Download link