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General terms and conditions
General Terms and Conditions of PROXIA Software AG, Römerstraße 7, 85661 Forstinning, Germany
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- 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.
- Formation of the contract
2.1 PROXIA’s offers are always subject to change and non-binding.
2.2 By placing an order, the customer makes a binding offer to purchase the goods ordered or to utilise PROXIA’s services. The order should be made in writing. The customer is bound by the order.
2.3 PROXIA accepts such an offer by sending an order confirmation.
2.4 Contractual items, documents, proposals, test programmes, etc. are 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. - Prices, contract performance
3.1 Unless otherwise agreed, the prices quoted by PROXIA are in euros excluding statutory VAT and excluding shipping and packaging costs. The prices quoted by PROXIA in the order confirmation are authoritative.
3.2 PROXIA is entitled to make partial deliveries and provide partial services, provided this is reasonable for the customer. If PROXIA provides partial deliveries or partial services, the customer shall pay for each partial delivery or partial service in accordance with the terms of these provisions.
3.3 The dispatch of goods or the provision of services within Germany shall only be effected by cash on delivery or prepayment. In individual cases, delivery against invoice is possible by agreement.
3.4 The dispatch of goods or the provision of services outside Germany shall only take place against prepayment.
3.5 The 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 implemented by PROXIA on the market and to the changed cost factor(s) specified herein.
3.6 Unless otherwise agreed, Customer undertakes to pay the agreed remuneration within 14 days of receipt of the goods or services. After expiry of this period, the customer shall automatically be in default of payment without the need for a reminder.
is required. PROXIA is then entitled to declare the buyer’s entire remaining debt due and payable and to demand immediate payment of all outstanding claims, including the costs of default,
including the costs of the default.
3.7 The customer is only entitled to offset or refuse performance on the basis of its own claims against PROXIA if the counterclaim is undisputed or has been recognised by declaratory judgement. - Selection of products and services
4.1 The Customer is aware of the essential functional features of the Software. He bears the risk as to whether the software meets his wishes andrequirements.In case of doubt, the customer must seek advice from PROXIA employees or expert third parties before concluding the contract.
4.2 Customer’s specifications regarding essential functional features of the Software must always be made in writing so that they can become part of the contract in the event of an agreement with PROXIA. - 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 is not responsible for any additional functionality. Descriptions in the documentation, in test programmes, in product and project descriptions, descriptions on the Internet, etc., do not constitute warranties or guarantees. Guarantees or warranties are only deemed to have been given if they are expressly designated as such by PROXIA 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. - Right
6.1 Upon full payment of the fee in accordance with § 3 of this contract, the customer shall receive a non-exclusive right to use the contractual software to the extent granted in this contract and the licence certificate. right to use the contractual software to the extent granted in this contract and the licence 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 licences and the type and scope of use are otherwise determined by the licence file.
6.2 In addition, PROXIA is exclusively entitled to all rights to the Software, in particular the comprehensive copyright with all authorisations to all programmes, documents and information provided within the scope of the contractual agreement and performance, including warranty, support and maintenance, in relation to the customer, even if these items were created as a result of the customer’s specifications or cooperation.
6.3 The customer is 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 applies only if PROXIA has not made the necessary information available to the customer upon request within a reasonable period of time.
6.6 If Customer uses the Contract Software to an extent that exceeds the acquired rights of use qualitatively (in terms of the type of use permitted) or quantitatively (in terms of the number of licences acquired), 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 will assert the rights to which it is entitled.
6.7 Copyright notices, serial numbers and other features serving to identify the programme may not be removed or altered from the contractual software. - Disclosure
7.1 The customer may only transfer the Software that it has acquired under a purchase agreement to third parties by reselling it (i.e. not, for example, by renting it) and only by giving up its own use.
7.2 Any such transfer requires PROXIA’s written consent, which PROXIA will 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. - Duties of the customer
8.1 Customer shall provide the working environment for the Software in accordance with PROXIA’s specifications.
8.2 Customer shall support PROXIA in the fulfilment of the order free of charge, e.g. by providing workspaces, hardware and software, data and telecommunications
telecommunication facilities, and by participating in specifications, tests, acceptances, etc. Customer will designate one or, if necessary, several qualified employees who will be available as contact persons for PROXIA and who are authorised to make the decisions required to perform the contract and to cooperate by taking appropriate and effective action.
8.3 The customer will grant PROXIA access to its own premises and to the hardware and software required for the provision of the services during its regular business hours and to the extent necessary. 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.8.5 Customer agrees to indemnify and hold PROXIA Software AG, Römerstraße 7, 85561 Forstinning, Germany (‘PROXIA’) and the PROXIA Partners (as defined below) harmless from and against any ‘Indemnification Claims’, meaning any third party claims, actions or proceedings arising out of Customer’s alleged or actual use, misuse or non-use of the Software, including but not limited to:
(a) Claims from users or employees of the customer and from the customer’s own customers;
(b) claims relating to the unauthorised disclosure or disclosure of personal data or other private information, including customer data;
(c) claims relating to the infringement or violation of copyright, trademark, trade secret or privacy or confidentiality rights by any written materials, images, logos or other content uploaded to the Software through the Customer Account, including but not limited to Customer Data; and
(d) claims that the use of the software via the customer account constitutes harassment, defamation or fraud against third parties or violates applicable law.
Customer’s obligations under this Article include the engagement and payment of counsel and the payment of legal fees, settlements at Customer’s expense and payments from judgements. PROXIA shall have the right, which shall not be unreasonably exercised, to reject any settlement or compromise that requires it to admit wrongdoing or liability or commits it to any permanent act/omission.
(The ‘PROXIA partners’ are the members of the supervisory board/board of directors, executives, shareholders, parent companies, subsidiaries, affiliated companies, representatives, successors and authorised agents of PROXIA).
- Transfer of risk
The risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon handover or, in the case of sale by dispatch, upon delivery of the goods to the carrier, freight forwarder or other person or organisation designated to carry out the shipment to the customer.
- Warranty
10.1 PROXIA warrants that the goods and services owed under this contract are free from defects and third-party rights.
10.2 The customer must inspect the goods or services immediately upon receipt. PROXIA must be notified of defects of any kind, including shortages or
or incorrect delivery, as well as transport damage, must be reported immediately in writing or in text form. Immediacy means in the case of recognisable defects, incorrect or short deliveries within 7 days of delivery, in the case of hidden defects, incorrect or short deliveries at the latest within 14 days of recognition or notification of such a defect, incorrect or short 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 shall be deemed approved.
10.3 The warranty period is one year from delivery of the goods or provision of the service.
10.4 The customer bears 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 is entitled, at its discretion, to remedy the defect within a reasonable period of time or to provide a defect-free service (subsequent fulfilment). 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 does not apply to defects that are due to the fact that the contractual software is used in a hardware and software environment that does not meet the requirements specified in the licence certificate.
10.9 PROXIA is not responsible if the defect is due to inadequate data backup by the customer. Insufficient data backup is deemed to exist
In particular, inadequate data backup exists if Customer has failed to take appropriate, state-of-the-art precautions against external influences, in particular against computer viruses, Trojans, cyber attacks and other phenomena that may jeopardise individual data or an entire database. The customer shall be responsible for ensuring that current data backups are made in a suitable form and that the prompt and economically reasonable recovery of lost data is guaranteed.
10.10 If the customer chooses compensation for damages after failed subsequent fulfilment and is entitled to this despite the restrictions, the goods shall remain with the customer if this is reasonable for him. Compensation shall be limited to the difference between the agreed remuneration and the value of the
value of the defective item, unless PROXIA caused the breach of contract wilfully or through gross negligence.
10.11 Only PROXIA’s product description is deemed to be agreed as the quality of the goods. Public statements, promotions or advertising do not constitute a contractual quality of the goods.
10.12 The contracting parties are aware that, given the current state of the art, it is not possible to create and maintain computer software in such a way that it works faultlessly in all applications and combinations.
10.13 If the contractual services infringe third-party intellectual property rights, the customer will notify PROXIA immediately in writing and provide PROXIA with the information and other appropriate support required for defence. - Liability / Limitation of Liability
11.1 PROXIA shall be liable without limitation
– for intent or gross negligence,
– for injury to life, limb or health,
– in accordance with the provisions of the Product Liability Act and
– to the extent of a guarantee assumed 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 pursuant to § 11.1 and 11.2.
11.8 The customer shall take appropriate security precautions (data backup, fault diagnosis, regular result checks, etc.). It is solely responsible for ensuring the necessary working environment and 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.), is generally not permitted. 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. - Retention of title
All goods delivered shall remain the unrestricted property of PROXIA until payment has been made in full.
- 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 contractual software and the access data must be stored in a protected place.
place.
13.2 At PROXIA’s request, the customer shall enable PROXIA to check the proper use of the Contract Software, in particular whether the customer is using the program qualitatively and quantitatively within the scope of the licences it has acquired. To this end, the customer shall provide PROXIA with information, grant access to relevant documents and records, and enable PROXIA or an auditing firm nominated by PROXIA and acceptable to the customer to review the hardware and software environment used. 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. - 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 aware that PROXIA uses electronic data processing for its administrative tasks, whereby some of the data processing is carried out by the respective PROXIA’s respective employees or external processors. PROXIA is entitled to process all data in connection with the order (including PROXIA is authorised to store and process all data arising in connection with the order (including in the offer or initiation phase) in the data processing systems used and to e.g. to affiliated companies and, in the case of sales intentions, to third parties in accordance with data protection regulations.
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. - Other
The customer may transfer claims against PROXIA to third parties only with PROXIA’s written consent. § 7 remains unaffected.
- 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 change any material content for the
equivalent relationship between the customer and PROXIA 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.
- Scope
Status 11-2023