1 Validity of the contractual conditions
- Unless otherwise agreed, these General Terms and Conditions of Contract shall apply exclusively to the sale of standard software, to services agreed within the scope of the purchase contract, to contracts for maintenance services, to contracts for a software project, to pre-contractual obligations and to all contractual relationships to be entered into by us under which we have to provide services of any kind whatsoever in business dealings. 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 contracts of the same type, our General Terms and Conditions of Contract shall apply exclusively in the version which can be called up on our homepage (enter exact designation) when the purchaser makes the declaration, unless the contracting parties agree otherwise in writing.
- In the case of contracts with consumers, only §§ 3, 4, 7 para. 1-3 and 14 shall apply; in all other respects, the statutory provisions shall apply.
- The delivery of standard software is subject to §§ 433 ff. BGB (GERMAN CIVIL CODE). For supplementary services (e.g. installation, parameterization, 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 obligation shall only be established by a contract signed by both parties or by a written order confirmation by MEXS GmbH, and also by MEXS GmbH commencing performance in accordance with the contract after the order has been placed. MEXS GmbH may request written confirmations of oral contractual declarations by the customer.
- The purchaser shall be bound by declarations concerning 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 Purchaser. In all other respects, both contracting parties are free to conclude such contracts.
§ 3 Subject matter of the contract, scope of services
- The subject of these contractual terms and conditions is only the delivery of standard software and the granting of the rights of use in accordance with § 4, as well as the services ordered at the time of purchase, e.g. training in accordance with § 15 or maintenance.
- Prior to conclusion of the contract, the Purchaser has verified that the specification of the software corresponds to its wishes and requirements. 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 agree on this 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 programs, 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 program and the performance description. The technique of delivery of the software shall depend on the agreements; in the absence of other agreements, the program and manual shall be delivered on CD-ROM. The purchaser has no right to be provided with the source code.
- MEXS GmbH provides all deliveries and services in accordance with the state of the art.
§ 4 Rights of the Purchaser to the Software
- The software (program and description) is legally protected. The 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 the 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 Purchaser is only entitled to process its own data with the program itself in its own business for its own purposes or to use the program for its own business purposes. All hardware on which the programs 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 necessary authorisations 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 programs required for safe operation. The backup copies must be stored securely and, as far as technically possible, must be provided with the copyright notice of the original data carrier. Copyright notices, trademarks and product identifications may 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 the following procedures have been carried out:
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 (irrespective of the status), in particular on data carriers and in fixed or working memories. He definitively gives 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 made on a permanent basis, i.e. without any right of return or option to repurchase.
d) The third party undertakes in writing directly vis-à-vis MEXS GmbH that it will comply with § 4, § 13 paras. 2 and 3, § 14 and § 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, the customer shall owe MEXS GmbH a contractual penalty amounting to half of 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 para. 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, of used software by and for third parties (e.g. through outsourcing, computer centre activities, application service providing) are not permitted without the prior written consent of MEXS GmbH.
- Contractual items, documents, proposals, test programs 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 may provide 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 disputes. 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 the 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 which affect agreed deadlines, these deadlines shall be extended by a reasonable period of time.
- Reminders and setting of deadlines by the purchaser 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 by law (cf. § 323 (2) BGB) the setting of a time limit may be omitted. Anyone who is wholly or partly responsible for the disruption may not demand reversal of the contract. All declarations in this context must be made in writing in order to be valid.
§ 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 price and conditions list of MEXS GmbH shall apply, which can be accessed via the homepage of MEXS GmbH.
- 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 program installation) shall be invoiced according to the current price list of MEXS GmbH. However, a list price increase shall be limited to 3% per year.
- Value added tax 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 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 [German Commercial Code]) 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 also applies to programs which the purchaser receives within the scope of the warranty and a maintenance contract.
- The Purchaser shall take reasonable precautions in the event that the program 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 functionality of the working environment of the program.
§ 9 Defects of quality
- 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 program resulting from hardware defects, environmental conditions, operating errors or the like is not a defect. An insignificant reduction in quality shall be disregarded.
- In the event of material defects, MEXS GmbH shall first 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. Due to a defect, at least three attempts at rectification shall be accepted. An equivalent new program version or the equivalent previous program version without the defect shall be accepted by the Purchaser if this is reasonable for him.
- The customer shall support MEXS GmbH in the analysis of faults and the elimination of defects, in particular by describing problems that occur in concrete terms, informing MEXS GmbH comprehensively and granting MEXS GmbH the time and opportunity required for the elimination of defects. MEXS GmbH may choose to remedy 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 contracting parties 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 defect as soon as possible, at the latest within 12 hours of the defect being reported, and shall continue to do so with vigour until the defect has been rectified, also outside normal working hours if reasonable (09.00 to 17.00 on weekdays).
b) Error class 2: Defects hindering operation: The error hinders the business operations of the customer considerably; however, the use of the software is possible with workarounds or with temporarily acceptable restrictions or difficulties: MEXS GmbH shall begin with the error removal on the day after next in case of an error message before 10 a.m., in case of a later error message at the beginning of the following working day and shall continue until the error has been removed 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 begin to eliminate the error within one week or shall eliminate the error only with the next program version if this is reasonable for the customer.
- The period pursuant to para. 4 shall commence with the defect report pursuant to § 8 para. 1. 5 para. 2, 3 shall apply to the calculation of the period. In the event of a difference of opinion as to the allocation of a defect to the classes pursuant to para. 4, the customer may demand classification in a higher defect class. He shall reimburse MEXS GmbH for the additional expenditure if he cannot prove that his classification was correct.
- MEXS GmbH may claim additional costs 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 customer had not raised the complaint without negligence. The burden of proof lies with the purchaser. § 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 rights of third parties. In the event of defects in title, MEXS GmbH shall provide a warranty in that it shall, at its discretion, provide the customer with a legally unobjectionable opportunity to use the software or equivalent software.
- 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 ordering party shall authorise MEXS GmbH to conduct the dispute with the third party on its own. 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 by the customer in breach of duty (e.g. use of the programs in breach of contract).
- Section 9 (2), (6) and (7) shall apply mutatis mutandis.
§ 11 Liability
- MEXS GmbH shall pay compensation for damages or reimbursement of futile expenses, irrespective of the legal grounds (e.g. from contractual and quasi-contractual obligations, material defects and defects of title, 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 of conclusion of the contract.
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.
- The objection of contributory negligence shall remain open to MEXS GmbH. In particular, the Customer shall be obliged to back up data and to 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 restriction.
§ 12 Limitation
- The limitation period shall be
a) in the case of claims for repayment of the purchase price arising from rescission 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 rescission or reduction;
b) in the case of other claims arising from material defects, one year;
c) in the case of 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 items specified in § 3 para. 5 or to 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 at which the Purchaser became aware of the circumstances giving rise to the claim or should have become aware 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 Beginning and end of the rights of the purchaser
- Ownership of the delivered goods and the rights under § 4 shall not pass to the Purchaser until the contractual remuneration has been paid in full. 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 Para. 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 according to § 4 do not arise or if they end, MEXS GmbH may demand from the customer the return of the items provided or the written assurance that they have been destroyed, furthermore the deletion or destruction of all copies of the items and 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) received from the other contracting party before and during the performance of the contract which are protected by law or contain business or trade secrets or are designated as confidential, even 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 objects 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 orderer 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 case 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, MEXS GmbH 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 remain valid. The same shall apply if these general terms and conditions of contract should contain a loophole requiring regulation.
Balgheim, 28 April 2017 MEXS GmbH - Download link