Legal
General Terms and Conditions
- In the current version from:
1. Scope
(1) These general terms and conditions (“GTC”) govern the relationship between AMNAU GmbH, Kronenstraße 13, 30161 Hannover (“Licensor”) and the contracting party of the license agreement as well as affiliated companies of the contracting party, insofar as they are entitled to use the contractual product according to the license agreement (collectively referred to as “Licensee”). Licensor and Licensee are each individually also referred to as “Party” and collectively as “Parties”.
(2) All agreements made between Licensor and Licensee in connection with the license agreement are set out in the license agreement and these GTC.
(3) The version of the GTC valid at the time of the conclusion of the contract is decisive.
(4) Deviating conditions of the Licensee are not accepted. This also applies if the Licensor does not expressly object to the inclusion.
2. Warranty for Defects
(1) If the Licensee is an entrepreneur, he must check the contractual software immediately upon receipt, as far as this is feasible in the ordinary course of business, for obvious defects and notify the Licensor of these in writing without delay, but no later than 14 days after receipt of the software. Hidden defects must be reported in writing immediately after their discovery. If the Licensee fails to properly inspect and/or report defects, the delivered software is deemed approved, unless the defect was not recognizable during the inspection. This does not apply to defects that the Licensor has fraudulently concealed. Otherwise, the statutory provisions apply, in particular §§ 377, 381 HGB.
(2) The statutory provisions on warranty for defects apply, taking into account the following special regulations:
(a) The limitation period for warranty claims for defects is one year from the issuance of the license for the respective contractual product, if no consumer is involved in the transaction.
(b) In the case of provision within the framework of software rental, the Licensor will maintain operational readiness during the contract period by providing updates.
(c) In the case of provision within the framework of SaaS, the Licensor guarantees an availability of 99.7% on an annual average.
(d) As part of the warranty for defects, the Licensor or third parties commissioned by him will initially attempt to rectify the error (subsequent performance). If the rectification is not successfully carried out within a reasonable period, the Licensee may withdraw from the contract or demand a reduction (reduction of the license fee) according to the statutory provisions and claim damages or reimbursement of futile expenses. If the Licensee claims damages or reimbursement of futile expenses, the Licensor is liable according to section 3.
If no consumer is involved in the transaction, claims for reduction take precedence, insofar as the performance can no longer be made up.
(e) Unless otherwise regulated above, further warranty for defects by the Licensor is excluded. In particular, the warranty for defects lapses if and to the extent that the contractual products are improperly handled by the Licensee or used in a defective or incompatible hardware or software environment. The same applies if the Licensee makes unauthorized changes to the contractual products.
(3) In the event of defect rectification, in particular within the framework of replacement delivery or rectification, the necessary expenses for the work of the Licensor or third parties commissioned by him as well as for any transport costs advanced by the Licensee will be borne or reimbursed by the Licensor. This does not apply insofar as these expenses increase because the contractual products have been moved to a place other than the place of initial delivery.
(4) For the use of open source components or their configuration files, which are delivered together with the contractual products without being activated, used, or linked by the contractual products, the warranty for defects by the Licensor is excluded.
3. Liability
(1) The warranty for defects by the Licensor is exclusively governed by the preceding section 2.
(2) For claims of the Licensee for damages, the following liability regulations apply:
(a) In the event of claims for damages by the Licensee, the Licensor is liable according to the statutory provisions, insofar as the claims are based on a breach attributable to intent or gross negligence of the Licensor, for an agreed quality of the contractual products, for a breach of life, body, or health, according to the provisions of the Product Liability Act, and to the extent of a guarantee assumed by the Licensor. Insofar as the Licensor is not accused of intentional breach of contract, liability is limited to the foreseeable, typically occurring damage.
(b) The Licensor is additionally liable according to the statutory provisions, insofar as he culpably, even in the case of slight negligence, violates an essential contractual obligation (cardinal obligation); the fulfillment of which enables the proper execution of the contract in the first place and on whose compliance the Licensee can regularly rely. In this case, liability for damages is limited to the foreseeable, typically occurring damage.
(c) The Licensor is liable to the Licensee, unless intent, gross negligence, or the violation of a cardinal obligation is present, in any case only limited to a maximum of the amount of the license fee. This liability cap does not apply to typically foreseeable damages.
(3) Further liability of the Licensor does not exist.
(4) The above limitation of liability also applies to representatives or vicarious agents of the Licensor.
4. General Liability Provisions
(1) It is clarified that the above limitation of liability according to section 4 does not in any case restrict the statutory claims under the Product Liability Act. Liability for damages resulting from injury to life, body, or health, which are based on a culpable breach of duty by the Licensor or an intentional or negligent breach of duty by a representative or vicarious agent of the Licensor, is also not affected by the above liability regulations.
(2) The Licensee is advised that he must check within the scope of his duty of care before first use of the contractual products whether the installation of the contractual products could lead to special interferences with already installed software, and further ensure a backup of his data before the first installation and during ongoing operation and, in the event of a suspected software error, take all reasonable additional security measures.
(3) Further liability for damages than provided for in the above liability regulations is excluded – regardless of the legal nature of the asserted claim. This applies in particular with regard to claims for damages due to culpa in contrahendo, due to other breaches of duty, or due to tortious claims for compensation for property damage.
(4) Insofar as the liability for damages of the Licensor is excluded or limited, this also applies with regard to the personal liability for damages of his employees, workers, staff, representatives, and vicarious agents.
5. Confidentiality
(1) The parties, including all affiliated companies, subsidiaries, branches, consultants, employees, and all similar persons, companies, or natural or legal persons, undertake with regard to confidential information of the respective other party (as defined below and regardless of the date of first disclosure of such confidential information) to keep this confidential information secret indefinitely and only to the extent necessary within their own company, including all affiliated companies, subsidiaries, branches, consultants, employees, and all similar persons, companies, or other natural or legal persons, to exploit/allow to be exploited or to use/allow to be used by themselves or by third parties in any other way, as this is indispensable for the fulfillment of obligations of a contracting party or if it is a disclosure to professionally obligated consultants.
(2) Within the framework of this contract, confidential information is considered to be, in particular, any trade secret and other non-publicly accessible or confidential information regarding products, processes, know-how, design, formulas, developments, research, computer programs, databases, other copyrighted works, or with regard to the business activities of the parties and their employees, consultants, licensees, or other persons attributable to the parties, which are disclosed or otherwise communicated in writing or orally within the framework of the license and/or maintenance and support contract or the provision of contractual products.
(3) The Licensee acknowledges that confidential information disclosed by the Licensor within the framework of this contract in direct connection with a contractual product (e.g., interface information, source code, etc.) represents a significant value or business value for him and that the Licensor may suffer significant damage in the event of a breach of the provisions of this confidentiality regulation. Each Licensee therefore undertakes to compensate for damages that the Licensor incurs as a result of an intentional or negligent breach of the confidentiality obligation contained in this contract. In addition, the Licensor is entitled to compensation for all damages arising from the breach of this confidentiality obligation against the respective Licensee, whereby damage also includes any consequential damages, material and immaterial damages, as well as lost profits. The liability limitations contained in these GTC do not apply in the event of a breach of the confidentiality obligation by one or a third party attributable to these parties.
(4) Any information disclosed by one of the parties under this agreement is and remains the sole and exclusive intellectual property of that party, including all exploitation and other usage rights. No rights of any kind are transferred to the other parties by the disclosure of information.
(5) The above confidentiality obligation according to section 5 paragraph 1 does not apply to such information,
(a) which was already in the public domain or published before the conclusion of the contract,
(b) which the respective party already possessed at the time of disclosure without an obligation to maintain confidentiality,
(c) which have been released for disclosure by an additional written agreement.
The confidentiality obligation according to section 5 paragraph 1 also does not apply if a party is legally obliged to disclose information due to a final judgment of a German court or by order of an authority, provided that such an obligation is communicated in writing to the confidentiality entitled party before disclosure. The above confidentiality obligation also does not apply to open source components, insofar as disclosure is permitted or required under the respective valid license terms.
(6) The parties will ensure compliance with the above confidentiality regulations through appropriate measures, in particular through appropriate contracts with employees and consultants and other third parties used by the parties for fulfillment within the framework of this contract.
(7) The parties undertake to inform the respective other party immediately after becoming aware of an actual or threatened unauthorized use or disclosure of confidential information and to take all reasonable measures to prevent or terminate such use or disclosure.
6. Reference Customer Naming
(1) By placing an order or after an uninterrupted usage period of at least six (6) months of the workspace software, regardless of whether it was provided for a fee or free of charge as part of a training, the customer grants the provider the following rights:
- The right to name him as a reference customer.
- The express, free, and revocable permission to use the customer’s company name and logo for reference purposes. This permission includes, in particular, the right to use the company name and logo on the provider’s website.
(2) The customer assures that he is authorized to grant these rights at the time of the order.
(3) The customer can object to this reference naming and logo usage at any time in writing or in text form (e.g., by email). In this case, the provider will cease naming the customer name and using the logo immediately, but no later than 14 days after receipt of the objection, and remove it from all publicly accessible media. The possibility of revocation is possible at any time and is not unlimited in time.
After an objection, the provider will treat the fact of the business relationship with the customer confidentially, unless disclosure is required due to legal obligations or official orders.
(4) This agreement on reference customer naming and logo usage does not affect other confidentiality obligations between the parties. The provider undertakes to maintain the customer’s reputation when using the company name and logo and never to use them in a negative or damaging context.
7. Termination Without Notice
Each contracting party has the right to terminate the license or maintenance and support contract without notice by written notification to the other party, without the terminating party having to make any further notification, if the breaching party commits a breach of contract to such an extent that it is unreasonable for the other party to adhere to the existing agreements. This applies in particular if:
- a remediable breach is committed according to the agreements between the parties and no remedy is provided within 45 days after the breaching party has received a notification of this breach from the injured party;
- an irremediable breach is committed according to the agreements between the parties; or
- there is any other important reason in the behavior.
8. Data Protection
(1) The Licensee hereby expressly agrees that the Licensor collects, stores, uses, and processes data and information about the Licensee (such as name, address, and email address). It is pointed out that, insofar as the Licensor uses third parties to fulfill his contractual or non-contractual obligations, the collected data may be transferred to these third parties to fulfill these obligations. Examples of such third parties may include: resellers, delivery companies, marketing agents, and financing companies. More detailed, up-to-date information on data protection is provided by the Licensor upon request.
(2) The Licensee is solely responsible for compliance with data protection regulations for the content that the Licensee processes with the software, especially when using SaaS. The Licensee is obliged to inform the Licensor of any special data protection issues in connection with his software use and to take appropriate measures.
9. Force Majeure
(1) Performance, delivery, and acceptance obstacles due to natural disasters, war, labor disputes, lack of raw material supply, or other cases of force majeure in one’s own or affiliated companies or companies entrusted with the execution of subcontracts, as well as by orders from higher authorities or other circumstances that cannot be averted by the contractual parties or that cannot be averted or compensated even with reasonable technical and economic effort, release the contractual partners from fulfilling the contractual obligations for the duration of the event.
(2) The party prevented from fulfilling the contract is obliged to notify the other party immediately, explaining the circumstances preventing them from fulfilling the contract; they will also do everything in their power and economically reasonable to eliminate the performance or delivery obstacle as quickly as possible.
10. Transferability
The license and/or maintenance and support contract and claims arising from it may not be transferred or assigned in whole or in part without the prior written consent of the other party, whereby the consent of the other party may not be unreasonably withheld. Subject to the foregoing, the provisions and conditions also bind the legal successors and transferees of the parties and are also effective for them.
11. Final Provisions
(1) Amendments and supplements to the license and/or maintenance and support contract and these conditions require written form.
(2) The non-compliance with an obligation by one of the parties shall not be considered a waiver of it or of the agreement as a whole or any other obligation from the license and/or maintenance and support contract and these conditions.
(3) Should individual provisions be or become invalid, the validity of the remaining provisions shall not be affected. Instead of the invalid provision or to fill any gaps, a valid and appropriate regulation shall apply that comes closest to what the parties intended according to the economic objective.
(4) The place of performance and exclusive jurisdiction is Hannover, provided each party is an entrepreneur or has no general jurisdiction in Germany.
(5) The entire contractual relationship is subject to the law of the Federal Republic of Germany, excluding the conflict of laws and the UN Sales Convention. A consumer can rely on the more favorable provisions of his home law despite the choice of law. The application of the “Convention for the International Sale of Goods” (CISG) of 11.04.1980 in its current version is excluded.