GENERAL TERMS & CONDITIONS

 

1. General

(1) These General Terms and Conditions (“GTC“) are applicable to all contracts between Projective Technology GmbH (“Projective“) and customer firms (“Customer/s“), in so far as the subject of these contracts is the supply,  maintenance or customisation of standard software from Projective product range (in the following also referred to as “Software“). In addition, the GTC apply to the temporary supply of test versions of the Software as appropriate.

(2) Where patches, bug fixes or updates are available and supplied to the Customer by way of subsequent performance or software maintenance of the Software, these GTC shall also apply, unless otherwise agreed for that specific case.

(3) These GTC apply exclusively. Divergent, contrary or supplementary general terms and conditions of the Customer only form part of the contract if and to the extent that Projective has expressly agreed they shall apply. This consent requirement applies at all times, for example even if Projective begins performance of the contract without reservation despite being aware of the Customer’s general terms and conditions.

(4) Individual agreements formed with the Customer in specific cases will always take precedence over these GTC. The content of such agreements is to be determined by reference to a written contract or Projective’s written confirmation.

(5) Material statements and notices which the Customer is required to give to Projective (e.g. setting deadlines, defect notices, cancellation, reduction of payment) must be in writing to be valid.

2. Conclusion of Contract

(1) Offers by Projective are subject to change without notice and are non-binding. This also applies where Projective has provided the Customer with service or product specifications, user documentation or other documents concerning the Software.

(2) An order placed by the Customer has the effect of a binding offer, regardless of the form in which it is transmitted to Projective. Acceptance by Projective may be in writing (e.g. by order confirmation) or by supply of the Software.

3. Supply of Software

(1) The Software is delivered via remote data transfer or as Software-as-a-Service (“SaaS”). User documentation will be available at Projective’s website.

(2) Software is only supplied in executable form (object code). The source code of the Software is not the subject of the contract and will not be provided.

(3) Delivery deadlines for the supply of Software will be individually agreed with the Customer or indicated by Projective upon acceptance of the order. Where the Projective is unable to meet delivery deadlines for reasons beyond its control, the Projective will inform the Customer without delay and at the same time provide the new estimated delivery date. If the item is still not available by the new delivery date, the Projective is entitled to partially or completely cancel the contract; Projective will reimburse without delay any consideration already advanced by the Customer.

(4) If the Software is fully or partly rented by the Customer (e.g. SaaS), the contract may be terminated in writing with three (3) months' notice period to the end of each contractual year.

4. Payment Terms

(1) Unless otherwise agreed in writing in the individual case, supply, maintenance and customisation of the Software will be charged as per Projective’s price list current at the time of contract conclusion.

(2) Unless otherwise agreed in writing, payment in full is due 30 days upon receipt of the invoice.

(3) Where payment by the Customer is delayed, interest at the rate of the applicable statutory default interest rate will be charged during the period of default. The right to claim additional damages for delay is expressly reserved.

(4) In the event that payment is not made despite delay in payment and expiry of a reasonable extension of time, Projective is entitled to rescind or terminate the contract with immediate effect and at its own discretion demand damages at a fixed sum of 25% of the outstanding portion of the agreed payment. The Customer retains the right to produce evidence that no loss or only negligible loss has been incurred.

(5) The Customer is only entitled to offset or retain payment on the basis of a court judgment or where a claim is not in dispute.

(6) If it becomes evident after a contract is formed that the claim for the agreed charges is jeopardised by deficiencies in the Customer’s ability to pay (e.g. through an application to open insolvency proceedings), Projective is entitled to withdraw from the contract in accordance with the statutory provisions concerning refusal of performance.

5. Rights of Use

(1) Projective grants the Customer a non-exclusive right to use the Software supplied in the object code or as SaaS to the agreed extent, or in the absence of such agreement, to the extent appropriate for the purpose of the contract.

(2) The right to use the Software is limited (a) in time in cases of SaaS (e.g. Skies), Software rental or Software tests and (b) to the extent that the Software may only be used for a defined number of users agreed in the contract. Exceeding the scope of licenses is not, under any circumstances, permitted without the prior consent of Projective.

(3) Unless otherwise agreed, under the terms of the contract the Customer is only permitted to use the Software in its own business and for its own internal purposes.

(4) The Customer may only revise the Software, and in particular carry out modifications and extensions, where this is expressly permitted by mandatory law or provided in the contract.

(5) The Customer is not permitted to reconvert or decode the Software or extract any program elements. It will not decompile or disassemble the Software, carry out reverse engineering or otherwise attempt to derive the source code. Where the Customer is permitted by mandatory law to undertake reverse engineering or decompilation to achieve full functionality or interoperability with other Software programs the Customer must inform Projective in advance of the nature and scope of the intended activity. Decompilation is only permitted if the Customer establishes a legal, legitimate interest in carrying out these activities.

(6) Copyright notes, trademarks or other identifying features of the Software shall not be modified or removed.

(7) Upon request by Projective the Customer is obliged to inform Projective in writing and without delay of the extent of use of the Software and produce appropriate evidence that use has not exceeded the extent specified in the contract. In case of reasonable suspicion that the contractually permitted extent of use has been significantly exceeded, Projective is entitled to examine whether the Customer has complied with the scope of use specified in the contract. For the purposes of checking this information the Customer will allow Projective or an examiner appointed by Projective access to the Customer’s property and buildings as well as administrator access rights to the hardware and software in which the Software is installed, during normal business hours, to the extent required to examine the scope of use. Projective undertakes to maintain confidentiality of all information concerning the Customer’s business not already in the public domain obtained by Projective in the course of the examination.

6. Transfer of Software

(1) If the Customers intends to sell, share or otherwise transfer the Software (“Transfer”), the written consent of Projective is in all cases required.

(2) Projective will consent if the Customer provides Projective with a written statement by the new user in which the new user undertakes to Projective that it will comply with the terms and conditions contained within these GTC, and if the Customer guarantees Projective in writing that it has transferred all copies and/or licenses of the Software to the new user and deleted the copies in its possession. Projective can refuse consent where the use of the Software by the new user would be contrary to the legitimate interests of Projective.

(3) The Customer will inform Projective of each transfer without delay and supply the name and complete address for service of the new user to Projective in writing.

7. Test-Versions

(1) Where Projective grants the Customer the opportunity to use a test version of the Software free of charge for a limited time, the Customer is granted a non-exclusive right to use the Software to the extent defined in Clause 5 of these GTC for the agreed period of time.

(2) During the test period the Customer will not use the test version of the Software productively but rather will operate it solely with test data and for test purposes. During the test period Projective will only be liable for intentional acts and gross negligence. Further claims by the Customer for damages and costs arising from any other cause are excluded, particularly claims arising out of breaches of contractual duties and tort law. Projective is only liable for material and legal defects in the Software if Projective has made an intentional misrepresentation by silence to the Customer. Any further liability or guarantee that test versions of the Software are free from material or legal defects is excluded.

(3) If the Customer decides not to license the Software when the test period expires, the Customer will completely and finally cease using the Software and irretrievably delete all copies of the Software.

8. Third-Party Software

The Software can contain elements of third-party software and/or open-source software, to which separate licence terms apply. The applicable third party or open-source software licence terms are available by typing the IP address or hostname of Customers server into a web browser and adding "/licenses/index.html" (e.g. “https://demoberry.skies.link/licenses/index.html”), if required for the lawful use of the Software. The Customer undertakes that it will only use the Software if it agrees to the licence terms of this third party or open-source software, which take precedence over the terms of use of Projective.

9. Customisation of Software

(1) If requested and agreed, Projective will customise the Software and/or develop specific features to fulfil Customer's requirements (“Customisation”). The customisation to be provided by Projective will be set out in a service description, which shall be separately negotiated and agreed by the parties.

(2) In case of a change request, the following provision applies:

(a) The Customer may request in writing the modification of the agreed requirements until acceptance. Unless Projective rejects the change as unreasonable or asserts an examination in accordance with the following paragraph, Projective shall implement the changes.

(b) If the request for change requires Projective to carry out an examination as to whether and under which conditions the change is feasible, Projective may demand a reasonable remuneration for it.

(c) If the change request affects contractual regulations (e.g. price, execution deadlines, acceptance), Projective shall assert the adjustment of the contract including attachments according to the respective current status.

(d) If Projective demands an adjustment of the contract, the Customer shall inform Projective within one week whether it wishes to amend the contract or not. If the Customer rejects the contract amendment, Projective shall continue to provide the customisation unchanged.

(3) Projective notifies the Customer of completion and the Customer is obliged to accept the customisation. If the Customer does not declare acceptance in due time, Projective may set a reasonable deadline for the submission of the declaration. The customisation shall be deemed to have been accepted upon expiry of the deadline if the Customer neither declares acceptance nor explains to Projective in writing which defects still need to be remedied.

10. Maintenance of Software

(1) The maintenance services to be performed by Projective includes making available new revised program versions or program elements as well as a technical support via email, telephone and remote access from 9:00 to 17:00 CET, except on public holidays in Berlin, Germany (“Maintenance”).

(2) After a defect has been reported by the Customer, Projective shall immediately begin to remedy the defect, taking into account the respective situation, in particular the cause, severity and effects of the defect. Projective will document the defect report in a ticket system. As soon as Projective is aware of the defect, it shall inform the Customer of the possible cause of the defect and subsequently at reasonable intervals of the respective status of the defect rectification. The manner and method of remedying the defect shall be at the reasonable discretion of Projective.

(3) The Customer shall support Projective to a reasonable extent in the performance of the Maintenance, especially as follows:

(a) If available, the Customer is obliged to contact the First Level Support Provider first.

(b) Support Projective (to the best of its ability) in the search for the cause of the defect and (if necessary) encourage its employees to cooperate with Projective's representatives.

(c) Grant (remote) access to the server/clients on which the Software is located/used.

(d) If Projective offers the Customer new program parts, in particular patches, bug fixes and updates (“Update”), in order to avoid or eliminate defects, the Customer shall accept these, install them in accordance with Projective's installation instructions and test it before using the Updates (see Section 12).

(e) The Customer is responsible for and obligated to install Updates within a period of one (1) year after publishing the respective Update (see Update Info). The right to request the supply of Maintenance shall expire upon expiry of this period until the Update is installed.

(4) Unless otherwise agreed, the Maintenance is free of charge in the first contractual year and fee-based from the second contractual year onwards. The yearly maintenance fee is calculated with X % of the purchase, renting and/or customising price of the Software, if not otherwise agreed.

(5) The maintenance fee shall be paid in advance for one contractual year each. Projective is entitled to adjust the maintenance fee with a written notice of three (3) months at the beginning of a contractual year. In the event of an increase of more than ten (10) %, the Customer shall be entitled to terminate the maintenance contract with a notice period of one (1) month from the effective date of the increase.

(6) The maintenance contract comes into force by purchasing, renting and/or customising the Software and shall be valid for an unlimited term. It may be terminated in writing with three (3) months' notice period to the end of a contractual year. Termination by the Customer is permitted for the first time at the end of the third contractual year.

11. Warranty

(1) The Software is free from material defects if at the time the risk passes the Software essentially fulfils the functions and features contained in the product specification applicable to the relevant Software at the time of the conclusion of contract. Software errors must be reproducible. Defect claims do not arise from insignificant deviation from the agreed quality, insignificant impairment of serviceability, damage arising from improper or negligent handling following passing of the risk, from unsuitable equipment or from special external factors which are not anticipated in the contract, nor for irreproducible software errors.

(2) Claims under the warranty further do not arise if errors occur and (i) the Software is not being used under the operating conditions expected or specified in the user documentation (e.g. system requirements), (ii) if during use the instructions and procedures are not followed or (iii) if modifications or adjustments have been made to the Software, unless the Customer proves that the errors are not causally related to the events listed in (i) to (iii) above or are attributable to faults in the user documentation.

(3) Software defects are cured within the defect warranty period pursuant to Section 11 para. (7) of these GTC after notification by the Customer. This occurs at Projective’s discretion either by remedying the fault (rectification) or by supplying a non-defective copy of the Software (replacement). Projective is entitled to remedy the defect by supplying the Software in a newer version which no longer contains the error or by supplying Updates. The defect is also considered to be cured if Projective demonstrates to the Customer how to operate the Software or change the settings on the Software so as to circumvent the error (referred to as a “workaround”) and operation and functionality are impaired by such circumvention to an insignificant extent only.

(4) Failure to remedy or replace can only be assumed once Projective has been given sufficient opportunity to provide rectification or replacement, but failed to produce the desired result, if rectification or replacement is not possible, if Projective refuses or unreasonably delays rectification or replacement or if rectification or replacement would be otherwise unreasonable.

(5) The Customer will make available all documents and information, IT equipment and access rights to the extent reasonably required to carry out a fault analysis and correction. The Customer is obliged to install new versions of the Software or Updates supplied without delay. The Customer and its employees will provide Projective with comprehensive information – verbally if necessary – for the purposes of identifying and remedying the defect.

(6) Projective does not guarantee that the Software will meet the specific requirements of the Customer. The Customer is solely responsible for selection and use as well as the results intended.

(7) Warranty claims arising from material or legal defects become statute-barred within one year of delivery of the Software. In all other respects the statutory provisions concerning the statute of limitations apply.

12. Duty to Examine and Notify

(1) The Customer is obliged to test the Software thoroughly for errors and suitability for the precise setting (e.g. operating conditions and purposes) before it commences productive use of the Software. In particular the Customer will use test data to verify essential functions before using the Software productively.

(2) As soon as the Customer is able and permitted to use the Software, it will examine and test the Software with regard to the functionality of basic program functions in particular. The Customer must give notice in writing of defects which are detected or detectable in this process without delay, within two weeks of receipt of the Software at the latest. For defects which are not obvious (hidden), once found the Customer is obliged to give notice in writing, before expiry of the warranty period pursuant to Clause 10 (7) of these GTC at the latest. The defect notice must contain a detailed description of the defect. In case of a breach of the duty to examine and notify the defect, the Software will be considered to be approved with respect to the relevant defect.

13. Legal Defects

(1) Where a third party legitimately claims a breach of intellectual property rights against a Customer using the Software in accordance with the contract terms,  Projective will at its own discretion either acquire the necessary rights of use in relation to the rights which have been infringed, at its own cost on behalf of the Customer or alter the Software so that the Software is no longer in breach of intellectual property rights but continues to fulfil the requirements agreed in the contract. Where Projective is not reasonably able to do this, the Customer can rely on its statutory rights to withdraw or make reduced payment.

(2) Projective is only subject to the above duty to the extent that the Customer informs Projective of the third-party claim without delay in writing, does not admit a breach and reserves Projective the right to all defences and settlement negotiations.

(3) Claims by the Customer are also excluded to the extent that the Customer is responsible for the breach of intellectual property rights. This applies in particular if the breach of the intellectual property rights has been caused by a specific requirement of the Customer, by a use of the Software Projective could not foresee or by modifications to the Software carried out by the Customer without coordination with the Projective.

14. Liability

(1) Projective accepts unlimited liability for intentional or grossly negligent damage and personal injury, e.g. death, bodily injury or injury to health caused by Projective.

(2) Further claims by the Customer for damages and costs (“Damages Claims”) arising from any cause in law, in particular through breach of contract or liability in tort, are excluded. This does not apply to compulsory liability, e.g. pursuant to the German Product Liability Act, intentional or grossly negligent acts, fraudulent concealment of defects, or culpable breach of essential contractual obligations by Projective. Essential contractual obligations are those concerning supply, performance and protection, which are either essential to fulfil the purpose of the contract or where the Customer regularly relies and is entitled to rely upon Projective’s compliance and where failure to comply would lead to rights and legal positions of the Customer being removed or limited in such a way that the contractual purpose can no longer be fulfilled. In the absence of intent or gross negligence, however, Damages Claims arising from the breach of essential contractual obligations are limited to contractually typical, foreseeable damages.

(3) To the extent that liability of Projective is limited to contractually typical, foreseeable loss, Projective is liable for each damaging event only up to two (2) times the agreed price of the relevant goods and services. Where a significantly higher risk is identifiable in a particular case, Projective will offer the Customer a higher liability sum but reserves the right to adjust the price accordingly.

(4) In case of loss of data Projective is only liable to the extent that the Customer has backed up the data at adequate intervals, no less than once per day, secured in a machine-readable format and thereby ensured that the data can be restored at a reasonable cost. Where the Customer fails to carry out such back-up procedures Projective’s liability is limited to the costs which would have been necessarily incurred in restoring the data from properly backed-up data, as well as loss caused by the loss of current data which would have also been lost had daily backing-up occurred.

15. Applicable Law, Place of Jurisdiction

(1) The law of the Federal Republic of Germany applies to the supply and maintenance of Software and all legal relationships between Projective and the Customer arising therefrom. The UN Convention on the International Sale of Goods (CISG) is excluded.

(2) The mutually agreed place of jurisdiction for all legal disputes will be Berlin, Germany. Projective however reserves the right to commence an action or other court procedure in the general place of jurisdiction of the Customer.

16. Final Provisions

(1) Alterations and amendments to these GTC and likewise material statements and notices which the Customer is required to give to Projective subsequent to the conclusion of contract (e.g. setting deadlines, defect notices, notices of cancellation, and reduction of payment) must be in writing. This applies to changes to this written form requirement itself. Email or other electronic communication is not sufficient to fulfil the written form requirement.

(2) If Projective is prevented from fulfilling its obligations by the occurrence of unforeseeable, extraordinary circumstances which it cannot avert despite exercising reasonable care, e.g. operational disruptions, official interventions, power supply difficulties or strikes or lockouts, whether these circumstances occur in the area of Projective or in the area of its suppliers, the supply period and/or the provision of service shall be extended to a reasonable extent. If the service becomes impossible due to the above-mentioned circumstances, Projective shall be released from its performance obligations.

(3) Should individual terms of these GTC be or become invalid or incapable of execution, the remaining terms of these GTC will remain unaffected. In place of the invalid term the provision most closely conforming to the commercial purpose of the invalid term will be considered to have been agreed. The same applies where these GTC are found to be incomplete.

(4) The Customer is not permitted to assign rights arising from the contractual relationship with Projective without the prior consent of Projective.

 

GTC / Version 1.0