General terms and conditions

General Terms and Conditions of PROXIA Software AG, Anzinger Straße 5, 85560 Ebersberg, Germany

1. Scope

   The following General Terms and Conditions are an integral part of all contracts concluded between PROXIA Software AG (hereinafter referred to as PROXIA) and companies, legal entities under public law or special funds under public law (all three entities hereinafter referred to as “Customer”). They shall apply exclusively and for the entire duration of the business relationship, even if no separate reference is made to them in subsequent transactions. Any deviating terms and conditions of business or purchase of the customer are hereby expressly rejected.
   
   

2. Formation of the contract

   2.1 Offers made by PROXIA are always subject to change and non-binding.
   2.2 By placing an order, the Customer makes a binding offer to purchase the ordered goods or to use the services of PROXIA. The order should be made in writing. The customer is bound to the order.
   2.3 PROXIA shall accept such offer by sending an order confirmation.
   2.4 Contractual items, documents, proposals, test programs, etc. shall be both the physical and intellectual property of PROXIA. They may not be reproduced and may not be made available to third parties. If no contract is concluded, they shall be returned without delay or, at PROXIA’s request, irretrievably deleted and may not be used.
   
   

3. Prices, contract performance

   3.1 Unless otherwise agreed, the prices quoted by PROXIA shall be in Euro exclusive of statutory value added tax and exclusive of
   Shipping and handling costs. The prices listed by PROXIA in the order confirmation shall prevail.
   3.2 PROXIA shall be entitled to make partial deliveries and to provide partial services to the extent this is reasonable for the Customer. If PROXIA provides partial deliveries or services, each partial delivery or service shall be paid for by the customer in accordance with the terms of these provisions.
   3.3 The shipment of goods or the service within Germany shall only be effected by cash on delivery or prepayment. In individual cases by agreement delivery is possible against invoice.
   3.4 The shipment of goods or the service outside Germany shall only be provided against prepayment.
   3.5 Prices are net prices ex PROXIA’s registered office. The costs of packaging, shipping, customs, fees, duties and insurance shall be borne by the customer and invoiced separately to the customer. If, after the conclusion of a contract until its fulfillment, the acquisition costs or other costs of performance change due to currency fluctuations, as well as taxes, duties, freight, fees or charges of any kind affecting the sales price, PROXIA shall be entitled to adjust the price to be paid by the customer accordingly. Any price increase shall be limited to the price enforced by PROXIA in the market and to the changed cost factor(s) specified herein.
   3.6 Unless otherwise agreed, the Customer undertakes to pay the agreed remuneration within a period of 14 days after receipt of the goods or receipt of the service. After expiry of the deadline, the customer is automatically in default of payment, without the need for a reminder
   Needed. PROXIA shall then be entitled to declare the entire remaining debt of the Buyer due and payable and to demand immediate payment of all outstanding debts,
   including the costs of the delay.
   3.7 The Customer shall only be entitled to set-off or to refuse performance on account of its own claims against PROXIA if the counterclaim is undisputed or has been finally adjudicated.
   
   

4. Selection of products and services

   4.1 The Customer is aware of the essential functional features of the Software. He shall bear the risk as to whether the software meets his wishes and
   needs. In case of doubt, the customer shall seek advice from PROXIA employees or competent third parties before concluding the contract.
   4.2 Customer’s specifications regarding essential functional features of the Software shall always be made in writing in order to become part of the contract in case of agreement with PROXIA.
   
   

5. Delivery item/condition/delivery times/obstacle to delivery

   5.1 PROXIA shall deliver the goods or provide the corresponding service in accordance with the contractual agreements.
   5.2 The goods correspond to the descriptions in the documentation. PROXIA shall not be liable for any additional functionality. Representations in the documentation, in test programs, in product and project descriptions, representations on the Internet, etc., shall not constitute warranties or guarantees. Guarantees or warranties shall only be deemed to have been given if PROXIAS expressly designates them as such in writing. PROXIA reserves the right to make technical changes to the delivery item.
   5.3 All information on delivery times is non-binding unless expressly agreed otherwise. The delivery time begins with the receipt of the order confirmation by the customer. The delivery date shall be deemed to have been met if the goods have left PROXIA’s place of business or that of a third party commissioned by PROXIA.
   5.4 In case of circumstances which prevent PROXIA or its suppliers from timely or proper delivery or performance and for which PROXIA is not responsible, e.g. failure of a supplier to deliver, riots, strikes, lockouts, shortages of labor, energy or means of transport, delays in the delivery of essential raw materials, auxiliary materials or supplies, impediments to delivery, or delivery stoppages due to circumstances in connection with a pandemic, official measures, as well as all cases of force majeure, the delivery period or period for the performance of the service shall be extended by a reasonable period of time.
   
   

6. Right

   6.1 Upon full payment of the fee pursuant to § 3 of this Agreement, the Customer shall receive a non-exclusive, depending on contractual
   Agreement either time-limited or unrestricted right to use the Contract Software to the extent granted in this Agreement and the License Certificate. Prior to full payment of the remuneration pursuant to § 3 of this Agreement, all data carriers as well as the user documentation handed over shall be subject to retention of title by PROXIA. The Contract Software may only be used by a maximum number of natural persons at the same time corresponding to the licenses purchased by the Customer. Permitted use includes installation of the contractual software, loading into the working memory and use by the customer as intended. The number of licenses and the type and scope of use are otherwise determined by the license file.
   6.2 In addition, PROXIA shall be exclusively entitled to all rights to the Software, in particular the comprehensive copyright with all powers to all programs, documents and information provided within the scope of the contractual agreement and implementation, including warranty, support and maintenance, in the relationship with the Customer, even to the extent that these items have been created by specifications or cooperation of the Customer.
   6.3 The Customer shall be entitled to make a backup copy if this is necessary to secure future use. The Customer shall visibly affix the note “Backup Copy” and a copyright notice of the Manufacturer on the created backup copy.
   6.4 Any copying of the Software not expressly permitted, any passing on of the Software not expressly permitted and the development of similar Software using the PROXIA Software as a template shall be prohibited by law and by contract.
   6.5 The Customer shall only be entitled to decompile and reproduce the Contract Software to the extent that this is mandatory by law. However, this shall apply only on condition that PROXIA has not made the necessary information available to the customer upon request within a reasonable period of time.
   6.6 If the Customer uses the Contract Software to an extent that exceeds the acquired rights of use qualitatively (with regard to the type of use permitted) or quantitatively (with regard to the number of licenses acquired), the Customer shall immediately acquire the rights of use necessary for the permitted use (additional purchase). Additional purchase requires a separate agreement with PROXIA on the additional scope of use. Purchases are made on the basis of the price list valid at the time of purchase. If the customer fails to make the additional purchase, PROXIA shall assert the rights to which it is entitled.
   6.7 Copyright notices, serial numbers and other features serving to identify the program may not be removed from the contractual software.
   removed or changed.
   
   
   

7. Disclosure

   7.1 The Customer may only transfer the Software, which it has acquired by purchase agreement, to third parties by reselling it (i.e. not, for example, by renting it) and only by relinquishing its own use.
   7.2 Any disclosure shall be subject to PROXIA’s written consent, which PROXIA shall not unreasonably withhold. Together with the request for consent, the Customer shall submit the Purchaser’s declaration according to which the Purchaser binds itself to the rules of use and transfer regulated in these GTC as they apply to the Customer at the time of the sale.
   
   

8. Duties of the customer

   8.1 Customer shall provide for the working environment of the Software in accordance with PROXIA’s specifications.
   
   8.2 The Customer shall support PROXIA in the performance of the contract free of charge by providing, e.g., work rooms, hardware and software, data and
   Provides telecommunications equipment and participates in specifications, testing, acceptance, etc. The Customer shall appoint one or, if necessary, several qualified employees who are available as contact persons for PROXIA and who are authorized to make the decisions necessary for the performance of the contract and to cooperate by acting in a suitable and goal-oriented manner.
   8.3 Customer shall grant PROXIA on-site access to its premises during its regular business hours and to the extent necessary and access to the hardware and software required for the performance of the Services. The customer shall provide the necessary technical facilities for this purpose. Insofar as the urgency of the respective order fulfillment requires, access shall also be granted outside the customer’s regular business hours. PROXIA will take care to ensure that the client’s business operations are disrupted as little as possible by its activities on site.
   8.4 The Customer shall test each Program for freedom from defects and for usability in the specific situation before commencing operational use of the Program.
   
   

9. Transfer of risk

   The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the time of handover, in the case of a sale by delivery to a place other than the place of performance at the time of delivery.
   delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment on
   the customer.
   
   
   

10. Warranty

    10.1 PROXIA warrants that the goods and services owed under this Agreement are free from defects and from third party rights.
    10.2 The customer shall inspect the goods or the service immediately upon receipt. PROXIA shall not be liable for defects of any kind, including material defects.
    or wrong delivery, as well as transport damages immediately in writing or in text form. Immediacy
    means in this case in the case of recognizable defects, incorrect or insufficient deliveries within 7 days from delivery, in the case of hidden defects, incorrect or insufficient deliveries at the latest within 14 days from recognizability or notification of such a defect, incorrect or insufficient delivery by (end) customers, suppliers or consumers of the customer. The receipt of the complaint by PROXIA shall be decisive for compliance with the time limit. The customer shall lose his warranty claims resulting therefrom if he fails to comply with his obligations to examine the goods and to give notice of defects in due time. In this case, the goods are considered approved.
    10.3 The warranty period shall be one year from delivery of the goods or provision of the service.
    10.4 The customer shall bear the full burden of proof for all prerequisites for a claim, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect.
    10.5 If the goods or services are defective, PROXIA shall be entitled, at its option, to remedy the defect or to provide a service free of defects within a reasonable period of time (subsequent performance). In case of impossibility or disproportionality of both types of subsequent performance, PROXIA shall be entitled to refuse subsequent performance. PROXIA shall also have this right as long as the customer does not fulfill its payment obligations to an extent corresponding to the defect-free part of the performance.
    10.6 In the event of subsequent performance, PROXIA shall provide the technically and economically most favorable solution. PROXIA shall be allowed at least two attempts each to remedy the defect before the customer may exercise its rights to reduce the remuneration (reduction) or to rescind the contract (rescission). The customer is obliged to provide PROXIA with verifiable documentation on the type and occurrence of defects and to cooperate in isolating the defects.
    10.7 In the event that PROXIA refuses or culpably delays both types of subsequent performance, subsequent performance is impossible or subsequent performance fails for other reasons, the Customer shall be entitled in accordance with the respective statutory provisions to reduce the remuneration accordingly or to withdraw from the contract. If only a part of the performance is defective, the customer may only withdraw from the entire contract under the above conditions if he has no objective interest in the partial performance.
    10.8 No defect shall exist in case of non-compliance with operating or maintenance instructions and instructions for use, changes and modifications by the customer or by third parties without being entitled to do so by law, by contractual agreement with PROXIA or on the basis of a prior written consent of PROXIA, in case of influence of third party accessories, including accessories of any kind (hardware or software) provided or used by the customer, as well as faulty installation by the customer or third parties. Furthermore, the warranty for material defects shall not apply to defects that are based on the fact that the contractual software is used in a hardware and software environment that does not meet the requirements specified in the license certificate.
    10.9 If the defect is due to insufficient data backup by the customer, PROXIA shall not be responsible for it. Insufficient data backup lies
    in particular if the customer has failed to take precautions against external influences, in particular against computer viruses, Trojans, cyber attacks and other phenomena that may endanger individual data or an entire data stock, by means of appropriate, state-of-the-art security measures. The customer itself shall be responsible for ensuring that current data backups are operated in a suitable form and that a timely and economically reasonable recovery of lost data is guaranteed.
    10.10 If the customer chooses compensation for damages after failed subsequent performance and is entitled to this despite the restrictions, the goods shall remain with the customer if this is reasonable for him. Compensation for damages shall be limited to the difference between the agreed remuneration and the
    value of the defective item, unless PROXIA caused the breach of contract intentionally or by gross negligence.
    10.11 Only PROXIA’s product description shall be deemed agreed as the quality of the goods. Public statements, recommendations or advertising do not constitute a contractual quality of the goods.
    10.12 The contracting parties are aware that, given the current state of technology, it is not possible to create and maintain computer software in such a way that it works error-free in all applications and combinations.
    10.13 In the event that the contractual Services infringe third party intellectual property rights, Customer shall notify PROXIA in writing without undue delay and provide PROXIA with the information and other reasonable support necessary to defend itself against such infringement.
    
    

11. Liability / Limitation of Liability

    11.1 PROXIA shall have unlimited liability
    – in the event of intent or gross negligence,
    – for injury to life, limb or health,
    – in accordance with the provisions of the Product Liability Act as well as
    – to the extent of any warranty given by PROXIA.
    
    11.2 In the event of a slightly negligent breach of an obligation that is essential for the achievement of the purpose of the contract (cardinal obligation), PROXIA’s liability shall be limited in amount to the remuneration paid by the customer for the respective purchase or service contract that forms the basis of the claim for damages.
    11.3 PROXIA shall not be liable for loss of profit, loss of revenue, loss of production and other indirect and consequential damages.
    11.4 PROXIA shall have no further liability.
    11.5 In particular, PROXIA shall not be liable for impairments and failures of communication paths used for remote maintenance that are provided by third parties, unless such impairment or failure falls within the scope of responsibility of PROXIA. If they fall within PROXIA’s area of responsibility, the provisions of §§ 11.1 – 11.3 shall apply.
    11.6 PROXIA shall not be liable for any defects, or for any other failure of performance, resulting from faulty information, documents and materials provided by the Customer. PROXIA shall also not be liable in this respect if the defective service is exclusively attributable to a hardware environment at the customer’s premises and the customer does not comply with the hardware requirements specified by PROXIA.
    11.7 PROXIA shall not be liable for any losses, including losses of files and data, as well as such direct and indirect damages which are not typical for the contract or which were not foreseeable in view of the underlying legal transaction. This shall not apply in cases of responsibility according to § 11.1 and 11.2.
    11.8 The Customer shall take appropriate backup precautions (data backup, fault diagnosis, regular result checks, etc.). He is solely responsible for ensuring the necessary working environment and for concluding appropriate maintenance and service contracts.
    11.9 Software not developed or provided by PROXIA (third-party software), including in the form of entire operating systems (Microsoft, Linux, etc.) shall be excluded on principle. excluded from any warranty against PROXIA. In this respect, PROXIA shall also not be liable for the content, functionality and freedom from errors of the third-party software. PROXIA is, however, prepared in such cases to assign to the customer its own warranty claims, if any, against the manufacturer of the third-party software to the corresponding extent.
    11.10 The above limitations of liability shall also apply to the personal liability of PROXIA’s employees, representatives and bodies.
    11.11 A limitation period of one year shall apply to all claims against PROXIA for damages or reimbursement of futile expenses in the case of contractual and non-contractual liability. This shall not apply in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty and in the event of claims for damages under the Product Liability Act.
    
    

12. Retention of title

    All goods delivered shall remain the unrestricted property of PROXIA until payment has been made in full.
    
    

13. Safeguards, audit law

    13.1 The Customer shall take appropriate measures to secure the contractual software and, if applicable, the access data for online access against access by unauthorized third parties. In particular, all copies of the contract software as well as the access data must be stored in a protected place.
    store.
    13.2 Upon PROXIA’s request, Customer shall enable PROXIA to verify the proper use of the Contract Software, in particular whether Customer is using the program qualitatively and quantitatively within the scope of the licenses purchased by Customer. For this purpose, the customer shall provide PROXIA with information, grant PROXIA access to relevant documents and records, and allow PROXIA to inspect the hardware and software used.
    software environment by PROXIA or an auditing firm designated by it and acceptable to Buyer. PROXIA may perform the inspection at the Customer’s premises during its regular business hours or have it performed by third parties bound to secrecy. PROXIA will ensure that the client’s business operations are disrupted as little as possible by its activities on site. If the inspection reveals that the purchased number of licenses has been exceeded by more than 5% (five percent) or that the license has otherwise not been used in accordance with the contract, Buyer shall bear the costs of the inspection, otherwise PROXIA shall bear the costs.
    
    

14. Secrecy and custody

    14.1 PROXIA undertakes to treat all information received from the Customer as confidential and to use it only to the extent necessary for the performance of the order. PROXIA complies with the relevant data protection regulations, in particular. the GDPR. The customer is
    known that PROXIA uses electronic data processing for its administrative tasks, whereby the data processing is partly carried out by
    the respective employees of PROXIA or external order processors. PROXIA shall be entitled to retain all rights in connection with Order (including
    in the offer or initiation phase) in the data processing systems used, and to process and
    e.g. affiliated companies and, in the event of intentions to sell, to third parties in accordance with data protection requirements.
    14.2 The Customer undertakes to keep all Contractual Objects secret from third parties. Employees etc. who have access to Contractual Objects shall be instructed about PROXIA’s copyright and the obligation of secrecy and shall undertake vis-à-vis the Customer in a suitable form to preserve these rights in the interest of PROXIA.
    14.3 The Customer shall keep the contractual items, in particular any source programs and documentation provided, in safe custody in order to exclude misuse.
    
    

15. Other

    The customer may transfer claims against PROXIA to third parties only with PROXIA’s written consent. § 7 remains unaffected.
    
    
    

16. Written form, severability clause, place of performance, place of jurisdiction, choice of law

    16.1 These General Terms and Conditions may be amended in accordance with the following sentences, provided that this does not affect the
    equivalence relationship between the customer and PROXIA essential contents are changed and the change is reasonable for the customer. PROXIA shall notify the customer in writing of the amendment to the General Terms and Conditions. If the customer does not object to the amendment in writing to PROXIA within six weeks after receipt of the notification, the amendment shall be deemed approved and the amended version of the General Terms and Conditions shall apply to contracts existing between PROXIA and the customer from that time on. PROXIA shall expressly draw the customer’s attention to this consequence when notifying the customer of the change.
    16.2 Amendments and supplements to the contract must be made in writing. This also applies to the amendment or cancellation of this clause.
    16.3 This contract shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (UN Sales Convention). The parties are aware that IT services may be subject to export and import restrictions. In particular, there may be licensing requirements or the use of the software or related technologies may be subject to restrictions abroad. PROXIA will comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations. The performance of the contract by PROXIA is subject to the proviso that there are no impediments to performance based on national and international regulations of export and import law and no other statutory provisions.
    16.4 In business transactions with merchants, with legal entities under public law and with special funds under public law, it is additionally agreed that the place of performance and jurisdiction shall be the registered office of PROXIA. Furthermore, this is always the place of jurisdiction if the customer has no general place of jurisdiction in Germany.
    16.5 Should individual provisions of this contract be or become invalid, this shall not affect the validity of the remaining provisions. The contracting parties shall endeavor to find a provision in place of the invalid provision that comes as close as possible in legal and economic terms to the objective of the contract. The same applies to an unintended regulatory gap.

 

Status 12-2022